App. Div.]

First Department, December, 1920.

a certificate by the secretary that he was a member in good standing of the defendant association.

Upon these facts I am of the opinion that the requirements of section 58 of the Insurance Law have been complied with; that the representation as to the age of Trilling as set forth in both applications properly appears upon the face of the policy and thus answers all the requirements of law, and advised the beneficiary and the insured alike of the nature of the representations and the age at which he was being insured, as well as of the premium based upon that age. As that age was concededly incorrect, the mutual mistake of the parties resulted in the issuance of a policy of insurance, whereby Trilling was insured at a less premium than was charged others of his actual age for similar insurance, thus effecting a discrimination in his favor in violation of section 89 of the Insurance Law (as amd. by Laws of 1911, chap. 249). The mistake being mutual, the representation as to which it arose appearing on the face of the policy itself, and the contract of insurance providing the method of the fair and honest adjustment of the rights of the parties, plaintiff is entitled to the reformation of the policy.

Judgment is, therefore, directed for plaintiff as demanded in the submission, without costs.

CLARKE, P. J., SMITH, PAGE and GREENBAUM, JJ., concur. Judgment directed for plaintiff as demanded in submission, without costs. Settle order on notice.

OTILIE MILLER, Appellant, v. JOSEPH MILLER, Respondent.

First Department, December 3, 1920.

Husband and wife divorce complaint containing allegations of adultery with named woman and also allegation of adultery with women unknown to plaintiff — proof establishing adultery with woman not named in complaint but within time set out in general allegation.

A decree of divorce should have been granted to the plaintiff where the complaint alleged the commission of adultery by the defendant with a named woman between stated dates and contained also a general allega

First Department, December, 1920.

[Vol. 194. tion that he committed adultery between said dates with certain women to the plaintiff unknown, where the proof shows that the defendant committed adultery between the dates stated in the general allegation with a woman who was not specifically named in the complaint, though it did not sustain the allegation that he committed adultery with the woman named.

APPEAL by the plaintiff, Otilie Miller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of May, 1920, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

This is an undefended action for a divorce. Upon the trial, plaintiff established that the defendant was living in adultery in the month of November, 1917, at 212 East Seventy-first street, in the city of New York, with a woman known as "Mary " whom he introduced as his wife. All the other necessary proof for a decree of divorce was given. The court, however, at the close of the case said: "Complaint dismissed on the ground that the proofs do not follow the allegations of the complaint; that the only adultery proved was that with one Mary, whereas the adultery declared upon was with one Julia, and that only allegations that serve as a sufficient basis for proof of misconduct are those that are predicated upon adultery committed in those three months in 1917."

It is quite true that the 4th paragraph of the complaint charges that during the months of October, November and December, 1917, the defendant "committed adultery with a certain woman whose christian name is Julia, in the city of New York and at various other places, which plaintiff is unable to state with more particularity," but the attention of the learned court was not called to the 3d paragraph of the complaint reading as follows: "Upon information and belief that since the 1st day of October, 1917, the defendant has committed adultery with certain women, whose names are unknown to plaintiff in the City of New York and at various times other places, which times and places plaintiff is unable to state with

App. Div.] Second Department, December, 1920. more particularity." The proof furnished applies to a date within this allegation and satisfactorily establishes the same.

The judgment appealed from will, therefore, be reversed and judgment entered in favor of plaintiff that the bonds of marriage between herself and defendant be dissolved, but without costs either of the trial or of this appeal. No provision can be made for alimony as no proof was supplied which would warrant same in any amount.

CLARKE, P. J., SMITH, PAGE and GREENBAUM, JJ., concur.

Judgment reversed and judgment ordered in favor of appellant as directed in opinion, without costs of the trial or of this appeal. Settle order on notice.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. RAYLAND REALTY CO., INC., Appellant, v. WILLIAM R. FAGAN, Clerk of the Municipal Court of the City of New York, Borough of Brooklyn, Sixth District, Respondent.

Second Department, December 7, 1920.

Landlord and tenant summary proceedings proceeding pending after final order constitutional law — police power Laws of 1920, chapter 942, prohibiting for two years issuance of warrant in summary proceeding.

Although a final order was made in a summary proceeding prior to the enactment of chapter 942 of the Laws of 1920, adding subdivision la to section 2231 of the Code of Civil Procedure, the proceeding is still pending within the meaning of said statute which provides in effect that in a pending proceeding for the recovery of real property, on the ground that the occupant holds over after the expiration of his term, a warrant shall not be issued for two years.

Said statute is a valid exercise of the police power.
BLACKMAR, J., dissents in part, with opinion.

APPEAL by the relator, Rayland Realty Co., Inc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of October, 1920, denying its motion for a peremptory writ of mandamus directed to the

Second Department, December, 1920.

[Vol. 194. defendant, as clerk of the Municipal Court of the City of New York, commanding him to issue to the relator a warrant to execute a final order in summary proceedings granted the relator by the Municipal Court to evict from the relator's premises a tenant who held over after the expiration of his term.

Grover M. Moscowitz [Sidney F. Strongin with him on the brief], for the appellant.

William B. Carswell [John P. O'Brien, Corporation Counsel, with him on the brief], for the respondent.

Briefs also submitted by George L. Ingraham, William D. Guthrie, Francis M. Scott, I. Maurice Wormser and Richard G. Babbage, amici curiæ.

JENKS, P. J.:

The relator acquired premises subject to a lease to Reines which expired on April 30, 1920. It instituted a summary proceeding in the Municipal Court against Reines as a hold-over. The proceeding was heard on May 7, 1920, and a final order was made for possession but staying the warrant to August 1, 1920. That order was amended on August 2d by stipulation extending the stay until October 1, 1920, on condition of no further stay. On October 4, 1920, the relator applied to this defendant as clerk of the Municipal Court for a warrant in execution of the final order. But as chapter 942 of the Laws of 1920 (adding to Code Civ. Proc. § 2231, subd. 1a) had been passed on September 27, 1920, the clerk refused the warrant. The relator moved at Special Term for mandamus, and this appeal is from an order which denied that motion.

This appeal presents but two questions: (A) Was the summary proceeding pending at the time of the enactment of chapter 942 of the Laws of 1920? (B) And if so could the Legislature enact that statute which provides the stay the basis of the clerk's refusal to issue the warrant?

(A) The said statute provides: "In a pending proceeding for the recovery of real property in such a city on the ground that the occupant holds over after the expiration of his term, a warrant shall not be issued," etc. Thus the statute expressly

App. Div.]

Second Department, December, 1920.

declares the legislative purpose is to stay the warrant in a pending proceeding. A warrant can have no legal existence until after the final order. If the final order ex propriore vigore ended the proceeding, the proceeding could not be pending when the warrant, the very subject-matter of the provision, came into existence. Further, the statute of summary proceeding declares that the issuing of the warrant for the removal of a tenant from demised premises "cancels the agreement for the use of the premises, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant." (Code Civ. Proc. § 2253.) It follows that until the warrant issue the relation of landlord and tenant exists, and so the proceeding is not terminated by the final order. I think that maugre the final order this proceeding should be regarded as pending" within the purview of this statute. (Wegman v. Childs, 41 N. Y. 159; Pitt v. Davison, 37 id. 235, 241; Mulstein Co. v. City of New York, 213 id. 308, 314.)

(B) The statute only postpones this statutory remedy in that it stays the issue of the warrant for two years. In no other way is the remedy touched. This is within the ordinary powers, so to speak, of the Legislature. (Stocking v. Hunt, 3 Den. 274; Wolfkiel v. Mason, 16 Abb. Pr.. 221 [Gen. Term Com. Pls.]. See, too, Van Rensselaer v. Snyder, 13 N. Y. 299; Conkey v. Hart, 14 id. 22; Morse v. Goold, 11 id. 281; Butler v. Palmer, 1 Hill, 324.)

But the contention is that under the circumstance of this pending proceeding this provision is unconstitutional. The courts do not consider the constitutionality of a statute unless the question is so involved in the given case as to be essential to the determination of that case. (People ex rel. Wetmore v. Supervisors of New York, 3 Abb. Ct. App. Dec. 566; Frees v. Ford, 6 N. Y. 176; Dodge v. Cornelius, 168 id. 244; Demarest v. Mayor, 147 id. 203, 207; White v. Scott, 4 Barb. 56; People ex rel. Yale v. Eckler, 19 Hun, 609, 613; People ex rel. Simpson v. Wells, 99 App. Div. 364, 366; People ex rel. Usoy v. Waring, 52 id. 36, 40; Clark v. Kansas City, 176 U. S. 118.) Then, and then only, the court decides whether there is conflict between laws of different authority, and the statute, being of lesser authority in so far as it conflicts with Constitution, is declared extinct.