It was held by the court of appeals in Bank v. Phelps, 97 N. Y. 44, that "the general scheme of the national banking act is that state banks may avail themselves of its privileges, and subject themselves to its liabilities, without abandoning their corporate existence, without any change in the organization, officers, stockholders, or property, and without interruption of their pending business or contracts. All property and rights which they held before organizing as national banks are continued to be vested in them under their new status;" and, "although in form their property and rights as state banks purport to be transferred to them in their new status of national banks, yet, in substance, there is no actual transfer from one body to another, but a continuation of the same body under a changed jurisdiction. As between it and those who have contracted with it, it retains its identity, notwithstanding its acceptance of the privilege of organizing under the national banking act." When that case was decided in this court, GILBERT, J., whose view is indorsed by the court of appeals, said, (16 Hun, 158:) "The change from a state to a national bank did not destroy either the existence or the identity of the corporation. Such change conferred new franchises, and imposed new duties and liabilities, on the corporate body in addition to those which it previously had, but nothing more. There was a slight change in the corporate name, but the new name designated the same entity. In short, the legal effect of the change was merely the acceptance of a new charter by the corporation. It remained to every intent and purpose as it did before, though its name was altered, and its new charter was granted by the national instead of the state legislature." The necessary result of this view of the law is that the change or conversion of the Metropolitan Bank to the Metropolitan National Bank did not result in a close of its business. It remained the same bank, and went on doing business continuously; and a mere passing of a resolution that it intended to close business could not have the effect now claimed, as the intention manifestly was simply to prosecute its then "pending business," and to conduct business thereafter under the changed jurisdiction. If this is correct, the proceedings under the act of 1859 were ineffectual, unless they were authorized under the provisions of chapter 97 of the Laws of 1865. By section 2 of that statute it is enacted that any state bank becoming a national banking association “shall be deemed to have surrendered its charter, if it shall have complied with the requirements of this act, provided that every such bank shall nevertheless be continued a body corporate for the term of three years after the time of such surrender, for the purpose of prosecuting and defending suits by and against it, and of enabling it to close its concerns, and to dispose of and convey its property; but not for the purpose of continuing, under the laws of this state, the business for which it was established."

It is claimed that, under the section referred to, the Metropolitan Bank was authorized to close its business, and was brought within the permission of the act of 1859 as to terminating liability on its circulating notes as a bank closing business, and one whose charter had expired. The surrender of the charter may be deemed an expiration; but an examination of the other provisions of the act of 1865 will show that it was not the intention of the legislature to confer authority on the state institution to extinguish the liability of the national banking association into which it was converted for its circulating notes. By section 8 it is provided that "nothing in this act shall be construed as releasing such association from its obligations to pay and discharge all the liabilities created by law, or incurred by the bank before becoming such association." Beyond that, the general purpose of maintaining the liability of the national banking association for the circulating notes of the state bank is indicated in the sixth section, which provides that, as soon as the certificate of the comptroller of the currency has been obtained, authorizing the bank to commence business, etc., "all the assets, real and personal, shall immediately, and by act of law, and without any conveyance or transfer, be vested in and

become the property of the national banking association into which such bank shall have been converted." It is not suggested that the correlative duty of paying the liabilities was not assumed by taking over the assets. As clearly indicating the purpose of the legislature, the same section 6 proceeds to enact: "And it [the national bank] shall be entitled, on returning the bills of such [the state bank] to the banking department of this state, to receive the stocks pledged to secure the redemption of the same, in like manner as the bank issuing the same is now entitled by law, and shall be subjected to the same rules as such banks in respect to the final redemption of the circulating notes of such state banks so converted into national associations."

One purpose of this act seems clearly to have been to carry with the transfer of the assets the obligation to pay all liabilities of the state bank, including the circulating notes, and to put at the disposal of the national bank the securities lodged with the banking department to protect the circulation, and to continue down to final redemption the duty of the national bank to pay that circulation. Such a purpose is inconsistent with the theory of the legislature having conferred on the state organization the right to destroy the liability of the national bank, and renders the act of 1859 inapplicable; and while the state may not legislate concerning national banks so as to fix upon them liabilities or duties which congress has not seen fit to impose, it had power to declare how, and under what circumstances and conditions, the national banks might acquire funds or securities specifically pledged with the state for special contracts, under the state banking law, so long as that legislation did nothing further.

I am of the opinion that the bank-bills are a debt of the defendant, and that the plaintiffs are entitled to recover; bank-bills not being within the statute of limitations by the law of this state.

MEEKS et al. v. RING.

(Supreme Court, General Term, First Department. January 28, 1889.) LANDLORD AND TENANT-LEASE-WHEN TERM BEGINS.

The habendum of a lease was to have and hold "from" the 1st day of May, for and during and until the full end and term of three years thence next ensuing. The rent was to be paid quarterly, in advance, on the 1st days of May, August, etc., and it appeared that the lessee expected to take possession May 1st. Held, that the term commenced May 1st, and, the premises having been injured by fire on that day, the provisions of the lease in relation thereto determined the rights of the parties.

Appeal from circuit court, New York county.

Action by Joseph Meeks and others, executors, etc., against Julia A. Ring. Judgment was entered on a verdict directed in favor of plaintiffs, and defendant appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.
G. W. Cotterill, for appellant. J. R. Reed, for respondents.

VAN BRUNT, P. J. In March, 1884, the plaintiffs leased to the defendant by a written indenture of lease the premises 136 Madison avenue, for the term of three years from the 1st day of May, 1884. This lease contained a provision that in case the premises leased should be partially damaged by fire, and not rendered wholly untenantable, the same should be repaired with all speed, at the expense of the plaintiffs; but in case the damage should be so great as to render the premises untenantable, the rent should be proportionately paid up to the time of such destruction, and from thenceforth should cease until such time as the same should be put in good repair. Prior to 12 o'clock on the 1st of May, 1884, a fire occurred on the premises, by which they were more or less damaged; according to the testimony of the defendant to such an extent that

they could not be occupied by her, and which, she testified, was admitted by the plaintiffs, but according to the plaintiffs such injury was slight, and although it required repairing, yet still it would not have interfered with the Occupancy of the premises by the defendant. The defendant having refused to take possession, this action was brought to recover for the first quarter's rent. The defendant resisted the claim, and upon the trial a verdict was directed in favor of the plaintiffs.

In the disposition of the case we are somewhat embarrassed by the fact that there was no request to go to the jury, and that both parties insisted upon a direction. The court granted the motion of the plaintiffs, and this was duly excepted to by the defendant. Although there is no implied warranty in the letting of a house that it shall be reasonably fit for habitation or any other purpose for which it is let, yet there is certainly an implied warranty that the condition of the premises shall remain substantially the same between the time of the execution of the lease and the beginning of the term. If this is not the case, then the landlord is not in a condition to tender for occupation that which is described in the lease, and which has been hired. Therefore, if any material change has taken place during this period, it is clear that the tenant is not bound to take possession, as the premises tendered are not those hired. In the case at bar there was evidence tending to show that the premises, because of the fire, were unfit for the purposes for which the defendant hired them, to the knowledge of the plaintiffs, and that this was conceded by the lessor. If this was true, and this changed condition occurred prior to the commencement of the term, the lessee was not bound to take possession of the premises, as they were not in the condition in which they were when she executed the lease. It is true that this evidence is contradicted on the part of the plaintiffs; but this contradiction would not, under such circumstances, justify a direction in their favor, there being this conflict of testimony. The covenant in the lease in regard to repairs, to which attention has been directed, is referred to as applicable to the case at bar, and that because the premises were not rendered wholly untenantable the rent was not suspended, and the defendant was bound to take possession. It is apparent from a reading of the lease that this covenant has no application to any period of time prior to the commencement of the term, as the provision of the lease is that in case the damage shall be so extensive as to render the premises untenantable, the rent shall be proportionately paid up to the time of such destruction, and shall from thenceforth cease until such time as the same shall be put in good repair. The damage by fire, here referred to, is clearly a fire occurring during the term, and can have no application to damage which has occurred before the commencement of the term. The real question presented, therefore, is, when did the term commence under this lease? It has been held since the cases of Thornton v. Payne, 5 Johns. 74, and Wilcox v. Wood, 9 Wend. 346, that a lease of premises from the 1st of May in one year to the 1st of May in the succeeding year excludes the first day. But the true rule seems to have been laid down by Lord MANSFIELD, in Pugh v. Duke of Leeds, Cowp. 714, which was "that the words from the day' may either include or exclude that day, according to the context and subject-matter," and the court will construe it so as to effectuate the intentions of the parties, and not to destroy them. In a comment upon this decision it has been suggested that it is at least singular that the same court which decided the case cited but three years before gave an opposite judgment upon almost precisely the same state of facts. Doe v. Watton, Cowp. 189. The later judgment, however, should be considered as the binding one, approved as it has been in the case of Ackland v. Lutley, 9 Adol. & E. 879. Applying this rule to the case at bar, it will be seen that it undoubtedly was the intention of the parties that the term should commence on the 1st of May. The habendum of the lease was "to have and to hold * ** from the 1st day of May, 1884, for and during and until the full end and term of

The

three years thence next ensuing, and fully to be complete and ended." rent was provided to be paid in equal quarterly payments, in advance, to-wit, on the 1st days of May, August, November, and February in each and every of said years. This language clearly indicates that the rent was to be paid at the commencement of each quarter, the first payment being coincident with the commencement of the term. That the term was understood to commence on the 1st day of May is also indicated by the acts of the parties, as the lessee expected to take possession on that day. Under these circumstances it must be held that the term commenced on the 1st of May, and, the fire occurring during the term covered by the lease, the rights of the parties must be governed by its provisions in respect thereto. The damage was not of a character to absolve the tenant from the payment of rent under the lease, and, consequently, although it seems a hard case for the appellant, the respondents were entitled to a recovery in this action. The judgment should be affirmed, with costs. All concur.

PEOPLE v. O'NEIL.1

(Supreme Court, General Term, Fourth Department. July, 1888.)

1. CRIMINAL LAW-SUBMITTING QUESTION OF LAW TO JURY-HARMLESS ERROR. Where on the evidence adduced at a trial for arson the court should have charged that the house described in the indictment as having been burned by defendant was within the statute against arson, a conviction will not be reversed because the question was erroneously submitted to the jury, who decided it properly.

2. SAME-EVIDENCE-SUBSEQUENT ACTS OF Accused.

A witness who has testified as to the conduct and conversation of defendant after the alleged arson, relative thereto, may testify that defendant was drinking liquor at the time of such conversations.

3. ARSON-EVIDENCE-JOINT AFFIDAVIT.

An affidavit made jointly by defendant and the secretary of a corporation, to which defendant had sold the business carried on in the burned building, for the purpose of obtaining insurance thereon, is as competent evidence against defendant as if made by himself alone.

4. SAME-RECEIPT FOR INSURANCE MONEY.

A receipt given by defendant and said secretary for insurance money is also competent evidence against defendant.

5. SAME-INTEREST IN PROPERTY BURNED.

The amount of stock owned by defendant in the company to which the business had been sold before the fire is competent as tending to show the interest of defendant in the insurance.

6. SAME-EVIDENCE-MUTILATION OF Books.

Mutilation of books which would show the interest of defendant in the insured property by the destruction of leaves is pertinent to the issue if done by or at the instance of defendant.

Appeal from court of oyer and terminer, Cortland county.

Indictment against Hugh O'Neil for the arson of a wagon factory at Cortland village. The property was managed by defendant at a salary and a third of the profits, the capital being furnished by two others,- Fitzgerald and Duffy. Being desirous of changing their location, Duffy and Fitzgerald assigned their interest in the business to defendant, who assumed the debts of the firm, and sold the entire stock to the O'Neil Wagon Company, Limited, of Springville. Of the stock of this corporation defendant was to have $20,000, and the balance of the purchase money-$16,679 — was to be paid by notes, but neither the capital stock nor the notes were to be delivered until the property was received at Springville, where a corrected inventory was to be made. The stock was insured in favor of the O'Neil Wagon Company for $40,000, and an adjustment was made for $10,000. Defendant was convicted and sentenced to five years' confinement in the penitentiary, and appeals.

1Affirmed by court of appeals. See 19 N. E. Rep. 796.

Argued before HARDIN, P. J., and FOLLETT and MARTIN, JJ.

R. Champlin and J. McGuire, for appellant. H. L. Bronson, Dist. Atty., for the People.

HARDIN, P. J. 1. Upon the evidence given upon the trial, the trial judge was warranted in holding as a matter of law that the building alleged to have been burned by the defendant, and described in the indictment as well as in the evidence, was embraced within the statute against arson. Although he submitted comments to the jury upon that subject, and allowed them to find that the building was within the provisions of the statute, no error was committed which the defendant can successfully complain of. A judgment will not be reversed merely because the judge submitted to the jury a question which he ought to determine himself, where it is clear he ought to have decided it in the same way the jury have found. Miller v. Insurance Co., 2 E. D. Smith, 268; Cumpston v. McNair, 1 Wend. 457; Pangburn v. Bull, Id. 345, 352; Hall v. Suydam, 6 Barb. 83, 88; Thompson v. Roberts, 24 How. 233, 240.

2. After the fire, which occurred on the 14th of February, a compromise adjustment of the loss sustained by reason of the fire was had with several insurance companies. Defendant took part in that adjustment, and executed an affidavit, in conjunction with one Conger, who was treasurer of the Springville company, in consummation of formal proofs against the several companies. In that affidavit, sworn to on the 22d of February, 1884, reference was had to a schedule of the policies existing at the time of the fire upon the property destroyed, showing the amount of insurance to be $20,750, and that a compromise was fixed upon at $10,000; and it was also stated in that affidavit, viz.: "That the fire originated, cause unknown to these deponents, but in our opinion of incendiary origin.' "That affidavit was signed and sworn to by the defendant, and was received in evidence against his objection and exception. A receipt executed by the defendant to one of the insurance companies for its proportion of the compromise adjustment, was received in evidence, against the defendant's objection and exception. We think this evidence was properly received. It tended to elucidate the situation of the property at the time of the fire, and the extent of the insurance thereon, and the relations of the defendant thereto, and bore upon the question of the defendant's motive or want of motive in respect to the fire charged to have been caused by his act. The circumstance that the affidavit was verified by Conger as well as O'Neil, and the circumstance that the receipt was signed by Conger as well as O'Neil, did not render the evidence inadmissible. It appeared that O'Neil, the defendant, was president of the O'Neil Wagon Company, Limited, and Conger was treasurer of that company. The acts and declarations of O'Neil, in conjunction with the insurance and the adjustment and the receipt of moneys upon the insurance policies after the fire, were not rendered incompetent because they were in conjunction with Conger. We therefore think the exceptions taken to that class of evidence are unavailing to the defendant.

3. Nor do we think it was error to receive evidence of the number of shares of stock owned by the defendant in the wagon company organized at Springville, as that fact tended to indicate the extent of his interest in that company, and to develop his relations to the insurance existing upon the property at the time of the fire. Nor was it error to receive the evidence tending to show how much property had been shipped to the Springville Company, or the arrangement existing with that company in respect to the property and the insurance thereon. If the books which have been kept in respect to the property relating to the defendant's account had not been mutilated, and had been produced, that would have furnished some evidence of the extent of the defendant's interest in the property remaining in the building at the time of the fire. If the leaves