seems to me that the only reasonable construction of the Municipal Court Code is that the Legislature intended to give to the Municipal Court no powers not expressly or by fair implication given by such. Code, and that only those sections of the Code of Civil Procedure are applicable to the Municipal Court which fall within the language of section 15 of the Municipal Court Code; i. e., those sections of the Code of Civil Procedure which cover matters of practice, pleadings, forms, and procedure in the exercise of the powers otherwise expressly or impliedly granted to the Municipal Court.

[6] The only question that remains is whether an order of examination is such a matter of practice or procedure. The right to examine an adverse party is purely a statutory right. The courts have no inherent power to grant such an order. In fact, even the Supreme Court has absolutely no right to grant such an order, for the statute has conferred that power upon a judge of the court, and not upon the court. Heishon v. Knickerbocker L. I. Co., 77 N. Y. 278. The right to an order of examination cannot, I think, strictly be considered as a matter of practice or procedure in an action; it is a right given to a party in the action by statute, and though the order is obtained in the action, and not in a special proceeding, yet that order can be made only by virtue of the power conferred by statute, and is not merely a matter of practice or procedure of the court in the action. In other words, section 873 of the Code of Civil Procedure does not regulate or alter or determine the practice or procedure of the court, but confers a new power upon a judge of the court.

It seems to me that when we read the entire Municipal Court Code, especially in view of the alteration in the language between the old act and the new Code, and in view of the fact that the Legislature has made specific provision in the Municipal Court Code for the physical examination of an adverse party, for the taking of depositions de bene esse, and for other matters which are covered, and well covered, by provisions applicable to all courts of record, a reasonable construction of the act requires us to hold that the Legislature intended to make the Municipal Court a court of record only in the exercise of its statutory powers, that it did not impliedly give to the Municipal Court all the powers conferred by the Code upon courts of record, but merely intended that in the exercise of the powers specifically granted to it the same practice, pleadings, forms, and procedure shall be used as in the Supreme Court. Such a construction will carry out the legislative intent that the practice and procedure in all courts shall be the same within the limits of the powers conferred on each court; it will give to the Municipal Court all the subsidiary powers which at common law were inherent in a court of record, so far as they are applicable in the exercise of the statutory powers given it by the Legislature, and all the powers which come within the legislative definition of the powers of a court of record; it will do away with many of the technicalities which grew up under the Municipal Court Act, but it will not by implication confer upon that court statutory powers of a new kind which the Legislature has not specifically given to the court. In other words, I consider that a liberal construction of the

act in furtherance of justice requires us to hold that the Legislature has made the practice, pleadings, forms, and procedure of the Municipal Court conform to that of the Supreme Court, and has conferred upon the Municipal Court all the powers which must reasonably be implied by that enactment, but it has conformed the practice, pleadings, forms, and procedure to that of the Supreme Court only within the limits of the powers specifically granted to it, and has not by implication granted it any powers, granted to courts of record by general statute, which are not reasonably necessary in the exercise of its statutory powers.

I have not arrived at this result without considerable doubt. I am aware that the Appellate Term, Second Department, has held otherwise upon this question in the case of Scheidlinger, as Adm'r, v. Silber, 158 N. Y. Supp. 27, and I would be constrained to follow that decision, for the sake of unanimity in the courts, but for the fact that, if we do so, the appeal in the present case must be dismissed, and I have some doubt whether there could be a review by the Appellate Division of an order dismissing an appeal.

It follows that the order should be reversed, and the motion to vacate granted, with leave to the plaintiff to appeal to the Appellate Division. All concur.

(93 Misc. Rep. 321)

PESCHMANNS v. NATIONAL SURETY CO.

(Supreme Court, Special Term, New York County. January, 1916.) PRINCIPAL AND SURETY 76-ACTION ON BOND-DEFENSE-APPEAL PENDING. In an action on a surety company's undertaking conditioned "that if any judgment is rendered herein against the defendant, and an execution issued therein is returned wholly or partly unsatisfied, it will pay the amount of said judgment or the portion thereof remaining unsatisfied, not exceeding the sum of $6,000," it was no defense that an appeal had been taken and perfected from the judgment mentioned in the undertaking. For other cases, see Principal and Surety, Cent. Dig. § 122; 76.]

[Ed. Note. Dec. Dig.

Action by August Peschmanns against the National Surety Company. On motion for judgment on the pleadings. Motion granted. Order affirmed, 158 N. Y. Supp. 1127.

Robert L. Turk, of New York City, for plaintiff.

Hayes & Kerngood, of New York City, for defendant.

FORD, J. This is a motion for judgment on the pleadings. The defendant surety company gave an undertaking in another action conditioned:

"That if any judgment is rendered herein against the defendant, and an execution issued therein is returned wholly or partly unsatisfied, it will pay the amount of said judgment or the portion thereof remaining unsatisfied, not exceeding the sum of six thousand ($6,000.00) dollars."

The surety company admits the performance of all the conditions precedent of its liability-its denials are palpably frivolous-except

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that it alleges as an affirmative defense that an appeal has been taken and perfected from the judgment which it is now called upon to pay. It seems to me that we need not pass from the express language of the undertaking, giving to it its plain ordinary meaning, in order to determine that the affirmative defense is insufficient in law. The court should not read into it any provision that is not expressed. On the contrary, the language should be strictly construed, in case of doubt or ambiguity against the company. It is a matter of common knowledge. that the business of furnishing surety bonds and undertakings has grown to vast proportions and that they are in use by lawyers and litigants every day in the courts. It is a business transacted under the insurance law of the state and the bonds and undertakings dealt in are essentially a species of policies of insurance. The public interest requires that such construction be placed upon them as will protect the public which purchases them by the thousands and that means that the companies which issue them should be held to the plain, ordinary, everyday meaning of their language.

The surety company seems to rely mainly upon Cook v. National Surety Co., 169 App. Div. 656, 155 N. Y. Supp. 493, but in that case the language of the undertaking was different in that it provided for payment only after a final decision. Similar language was in the undertaking considered in the case of Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57, which was cited by Mr. Justice Ingraham as authority for the decision in Brown v. Utopia Land Co., 118 App. Div. 190, 103 N. Y. Supp. 53. The opening paragraph of the per curiam opinion in Musgrave v. Sherwood, 76 N. Y. 194, cited in the Cook Case, states that the undertakings construed by that decision both provided that liability would accrue only in case "the court should finally decide that the plaintiff was not entitled" to the injunction. Those decisions merely give to the language of the obligations involved their plain, ordinary meaning. But in the undertaking here there is a clear promise to pay the judgment obtained, and the surety company should be held to it. The motion will therefore be granted. Motion granted.

PEOPLE v. WEEKS.

(Supreme Court, Appellate Division, Second Department. March 31, 1916.) 1. NUISANCE 69-GUILT STATUTE "PRINCIPAL."

Under Penal Law (Consol. Laws, c. 40) § 27, providing that one committing or participating in a misdemeanor is a principal, the confidential man and general superintendent of the owner of a milk and cream business, who could discharge the men if anything went wrong, and was employed to help the owner to keep things right, was guilty, as a "principal," of the misdemeanor of maintaining a nuisance, denounced by section 1532, where the employés of the business made noises night and day by cracking ice and using profane and indecent language.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. § 161; Dec. Dig. m69.

For other definitions, see Words and Phrases, First and Second Series, Principal.]

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2. NUISANCE 92-GUILT--SUFFICIENCY OF EVIDENCE.

In a prosecution of the superintendent of a milk business for maintaining a nuisance, evidence that defendant was in charge thereof held sufficient to sustain the verdict of guilty.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 212; Dec. Dig. 92.]

An information, charging the crime of maintaining a nuisance, was sufficient to support conviction of committing such nuisance.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 211; Dec. Dig. 91(2).]

Appeal from Court of Special Sessions of City of New York. William B. Weeks was convicted of violating Penal Law, § 1530, and he appeals. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, MILLS, and RICH, JJ.

Thomas C. Whitlock, of Brooklyn, for appellant.

Ralph E. Hemstreet, Asst. Dist. Atty., of Brooklyn (James C. Cropsey, Dist. Atty., of Brooklyn, on the brief), for the People.

JENKS, P. J. [1] The defendant concedes that the proof sufficed to establish the crime, but contends that he could not be the convict, in that he was but salaried employé of the individual owner of the milk and cream business of which the conduct constituted the public nuisance. The crime is a misdemeanor (section 1532, Penal Law). If the defendant committed or participated in the crime, he could be held as a principal (section 27, Penal Law; see, too, Lowenstein v. People, 54 Barb. 299; People v. Trainor, 57 App. Div. 422, 68 N. Y. Supp. 263, wherein Lowenstein's Case, supra, is cited). Mr. Wharton in his Criminal Law, vol. 2 (11th Ed.) by Kerr, says, citing authorities: "That all parties concerned, whether agents or organizers, are principals follows from the familiar doctrine that in misdemeanors all are principals. To nuisance this doctrine has been frequently applied in cases where an agent sets up as a defense that he acted only for another, who is the real principal and manager of the enterprise, controlling it, and enjoying its profits. But the agent is nevertheless held responsible if he have, in any sense, a control over the place or thing from which the nuisance arises." Section 1688.

[2] The offending charged is that the defendant, as superintendent of the said business at No. 439 Eleventh street, caused, permitted, and allowed the employés in his charge and control to make great noises by night and day, by loading trucks, in cracking and breaking ice, and permitted and allowed them to use profane and indecent language. The owner of the business testifies that he employed the defendant as "a kind of confidential man, and in a way a sort of general superintendent" at all of his stations, including the one in question. He testified that the defendant could discharge the men if anything went wrong, and that he was employed to help the witness to "keep things right." And there was proof that the defendant entertained the complaints of residents near this station, and undertook to abate the alleged annoyances. We think this proof sufficed to hold the defendant.

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The three cases cited by the learned counsel for the appellant can be discriminated. In People v. Taylor, 192 N. Y. 398, 85 N. E. 759, the court determined that the employé of a corporation superior in authority to another employé was not individually liable for an employment of a child under 16 years old, when such employment was given by the subordinate without the knowledge and consent of the superior employé and in violation of his orders. And the reason given for the immunity was that the defendant did not commit or participate in the act of employing the child. In People v. Livingston, 27 Hun, 105, the defendant's wife was the owner of the land upon which the defendant as her agent had erected the obstructions. The defendant was indicted, not only for the erection, but for the continuance, of the nuisance. Learned, P. J., for the court, after saying: "Possibly (although I express no opinion on this) the jury in this case might have rendered a verdict of guilty of erecting, but not of continuing" -reversed the judgment because the proof did not establish defendant's continuance of the nuisance. That such was the scope of the decision is indicated in People v. Crounse, 51 Hun, at page 494, 4 N. Y. Supp. at page 269, in which case Learned, P. J., sat and concurred. in the opinion wherein it is said:

"Under such circumstances it has been decided by this court that the husband, while acting as the agent of the wife, cannot be made liable and punished for continuing a nuisance upon such lands. People v. Livingston, 27 Hun, 105."

The third case is that of People v. Crounse, supra, which involves the distinction made in Livingston's Case, supra.

[3] It is true that the information charges the crime of maintaining a nuisance, but we think that the crime charged, and for which the defendant was tried, was not for maintenance as distinct and separate from commission. The caption of section 1532 of the Penal Code, which relates in express terms to the commission or maintenance of a nuisance, is "Maintaining nuisance," and "a certain degree of permanence is usually a part of the conception of a nuisance." Holmes, J., for the court in Com. v. Patterson, 138 Mass. 498-500.

* * *

The judgment is affirmed.

THOMAS, MILLS, and RICH, JJ., concur. CARR, J., not voting.

WITT v. GILMOUR et al.

(Supreme Court, Appellate Division, Second Department.

March 31, 1916.) 1. CONTRACTS 280(3)-BUILDING CONTRACTS-SUBSTANTIAL PERFORMANCE. Substantial performance of a building contract does not depend, like the descriptive term "more or less," on a percentage, and the fact that the shortcomings were less than 10 per cent. of the contract price does not establish substantial performance.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1252, 1256, 1257; Dec. Dig. 280(3).]

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