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L. 1916, ch. 196.

Seduction under promise of marriage. §§ 1982, 2010, 2175.

§ 1982. Illiterate employees; telegraph operators.-It shall be a misdemeanor for any person, firm or corporation engaged in the operation of a railroad within this state, whereon steam or electricity is used as a motive power, to employ in or about the operation of any engine, train or trains any engineer, assistant engineer, fireman, engine foreman, hostler, trainman or flagman who is unable to read the time tables of such railroad and ordinary handwriting in the English language or unable to speak, hear and understand the English language, or to see and understand the signals required by the book of rules governing the operations of the engines and trains on such railroad; or for any person, firm or corporation in his own behalf, or in the behalf of any other person or corporation, knowingly to employ or use a person so unable to read, speak, hear and understand the English language, or to see and understand the signals aforesaid as such engineer, assistant engineer, fireman, engine foreman, hostler, trainman or flagman; or to employ a person as a telegraph operator who is under the age of eighteen years, or who has less than one year's experience in telegraphing, to receive or transmit a telegraphic message or train order for the movement of trains; provided, however, that this section shall not apply to flagman at street or highway crossings. (Amended by L. 1916, ch. 424, in effect Sept. 1, 1916.)

$ 2010. Rape defined.

Consent.-One who has sexual intercourse with an unmarried female under the age of eighteen years is guilty of rape whether or no the woman consents, and, hence, such consent is no defense to an action brought by her to recover damages for such assault. Boyles v. Blankenhorn (1915), 168 App. Div. 388, 153 N. Y. 466.

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An information alleging the performance by defendant on Sunday of acts incidental to the carrying on of his business as the proprietor of a public billiard or pool room, in waiting upon players or customers who were on said day playing billiards or pool then and there permitted by defendant to be engaged in, for which privilege and service he charged and received a money consideration, charges the misdemeanor of unlawfully performing labor on Sunday in violation of this section. People ex rel. Briggs v. Owen (1915), 92 Misc. 254, 155 N. Y. Supp. 1003.

§ 2145. Public sports on Sunday.

The conduct for profit on Sunday of motor cycle and bicycle races within an unroofed enclosure called the "Velodrome" located in a sparsely settled locality 500 feet from any public road and where there are no churches, school-houses or public buildings within one-half or three-quarters of a mile is a violation of this section, and a motion for an injunction restraining the sheriff from interfering with such exhibition will be denied. Velodrome Co. v. Stengel (1915), 91 Misc. 580, 155 N. Y. Supp. 575.

§ 2175. Seduction under promise or pretense of marriage.-A person, who under promise of marriage, or by means of a fraudulent representation to her that he is married to her, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by im

§§ 2176, 2460.

Prostitution.

L. 1916, ch. 196.

prisonment for not more than five years, or by a fine of not more than one thousand dollars or both. (Added by L. 1909, ch. 524, and amended by L. 1916, ch. 196, in effect Apr. 12, 1916.)

§ 2176. Bar to prosecution.

Statute of limitations.-The provision that "the lapse of two years after the commission of the offense before the finding of an indictment is a bar to a prosecution" is not a special statutory limitation qualifying the right to prosecute, and of the essence of such right, and an inherent part of the statute under which the right arises, but a simple statute of limitations, and, as such, within the provision of section 143 of the Code of Criminal Procedure that "no time during which the defendant is not an inhabitant of or usually resident within the state, or usually in personal attendance upon business or employment within the state, is part of the limitation." People v. Buccolieri (1914), 91 Misc. 156, 152 N. Y. Supp. 707.

§ 2460. Compulsory prostitution of women.

Construction.-Subdivision 3 of this section should be construed with the last word "or" in the 3d line omitted, and as so construed an indictment thereunder which charges that the defendant did feloniously induce and procure the complaining witness for prostitution, and did advise her to have unlawful sexual intercourse for money with men, and did feloniously induce and procure her to have unlawful sexual intercourse and relations with a man whose name is to this grand jury unknown, and whom he brought to her for that purpose, but fails to allege that the defendant induced, enticed or procured the complaining witness to enter a house of prostitution for the purpose of prostitution or other immorality, fails to charge a crime. People v. Draper (1915), 169 App. Div. 479, 154 N. Y. Supp. 1034.

Purpose of section.-Section 2460 of the Penal Law and the provisions of the Penal Code from which it was derived construed, and held, that the purpose of the statute is to protect women against all forms of "compulsory prostitution." The statute is directed against the system, the permanent conditions, and not against individuals and voluntary associations. People v. Draper (1915), 169 App. Div. 479, 154 N. Y. Supp. 1034.

Intent. It is the intent with which a woman or girl is brought into the State or is induced, enticed or procured to enter a house of prostitution which gives the gravamen of the crime. People v. Draper (1915), 169 App. Div. 479, 154 N. Y. Supp. 1034.

Gifts for charitable purposes.

§§ 11, 12, 15.

PERSONAL PROPERTY LAW.

(L. 1909, ch. 45.)

§ 11. Suspension of ownership.

Carrier v. Car

Unlawful suspension of power of alienation by trust agreement. rier (1915), 167 App. Div. 405, 153 N. Y. Supp. 509. Trust unlawfully suspending power of alienation. Matter of MacDowell (1915), 170 App. Div. 245, 156 N. Y. Supp. 387.

§ 12. Gifts and bequests of personal property for charitable purposes. Charitable trusts are no longer invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries. Stewart v. Franchetti (1915), 167 App. Div. 541, 153 N. Y. Supp. 453.

What constitutes a charitable trust.-This section sanctions the creation of charitable trusts and relieves such trusts as are religious, educational, charitable or benevolent from the operation of the statute against perpetuities. If the purpose to be attained is personal, private or selfish, it is not a charitable trust; but when the purpose to be accomplished is that of public usefulness unstained by personal, private or selfish considerations, its charitable character insures its validity. Where testatrix gave to her executor and trustee a fund to be invested and the income to be expended in hiring and maintaining a house "to be used as a home for refined, educated Protestant gentlewomen, whose means are small and whose home is made unhappy by having to live with relatives, who think them in the way," such bequest creates a charitable trust within the meaning of the statute. Matter of MacDowell (1916), 217 N. Y. 454, revg. 170 App. Div. 245.

Trust for benefit of schools in town.-A gift by a decedent of one-half of her residuary estate to her executors, "in trust, nevertheless, to be used and devoted by them to the establishment of a school for girls in the town of North Salem," is valid as a charitable gift for the benefit of the public under this section, where it appears that the decedent, a woman of charitable impulses, and leaving no children or descendants, had long been a resident of said town, which was inhabited by people of small means and in which the facilities for public education were meagre. Butterworth v. Keeler (1915), 169 App. Div. 136, 154 N. Y. Supp. 744. When motion by Attorney-General to compel trustee to submit his plan of distribution should be denied.-A motion by the Attorney-General to compel a trustee under a will creating certain trusts for charitable and benevolent uses and purposes to submit his scheme and plan of distribution of the funds of the estate should be denied, where there is nothing in the moving papers to show that the trustee is not performing his duties properly, and there is no doubt as to the intention of the testatrix, or the duties of the trustee as her representative. Such a motion cannot be made in an action after judgment. Buell v. Gardner (1915), 168 App. Div. 278, 153 N. Y. Supp. 1108.

See generally Hughes v. Stoutenburgh (1915), 168 App. Div. 512, 521, 154 N. Y. Supp. 64.

§ 15. Personal property not alienable in certain cases.

Acquisition of remainders by life tenant; when merger does not operate to destroy trust. Where, at the time of the death of a testatrix, the statute declared the interest of a beneficiary of a trust to receive and apply the income of personal

§§ 16, 31.

Agreements required to be in writing.

property to be inalienable (Laws of 1903, chap. 87), a beneficiary entitled to receive the income of trust property for life does not acquire absolute title to the corpus of the trust property by reason of the fact that the remaindermen conveyed their interests to him. Such conveyance of the remainder to the life tenant does not merge the two titles so as to destroy the trust, and the life tenant is only entitled to receive the income. Dale v. Guaranty Trust Co. (1915), 168 App. Div. 601, 153 N. Y. Supp. 1041.

§ 16. Validity of direction for accumulation of income.

Unlawful accumulation of stock dividends.-Matter of Megrue (1915), 170 App. Div. 653, 155 N. Y. Supp. 1059.

§ 31. Agreements required to be in writing.

Note or memorandum.-In order to satisfy the requirements of the Statute of Frauds a written note or memorandum of a contract must include all the terms of the completed contract. It is not sufficient that the note or memorandum may express the terms of a contract. It is essential that it should completely evidence the contract which the parties made. If, instead of proving the existence of that contract, it establishes that there was in fact no contract, or evidences a contract in terms and conditions different from that which the parties entered into, it fails to comply with the statute. Poel v. Brunswick-Balke-Collender Co. (1915), 216 N. Y. 310, revg. 159 App. Div. 365, 144 N. Y. Supp. 725.

A memorandum of an agreement to purchase goods in order to take a case out of the Statute of Frauds must contain substantially the whole agreement and all its material terms and conditions, so that one reading it can understand what the agreement is. Hence, correspondence which while admitting an agreement to purchase goods indicates throughout a disagreement between the parties as to the kind and quality of the goods, is insufficient to satisfy the statute. Bauman v. MendleLunepp Co. (1915), 176 App. Div. 204, 155 N. Y. Supp. 1093.

Parol ante-nuptial agreement.—Although a parol ante-nuptial agreement is unenforcible while executory, the Statute of Frauds does not apply where, after the marriage, the promisor actually executed the contract by making a will pursuant to its terms. Adams v. Swift (1915), 169 App. Div. 802, 155 N. Y. Supp. 873.

A transfer of a mortgage in compliance with an alleged oral agreement in consideration of marriage and on the day of the marriage, is not invalid where the transferee had no intention of defrauding the creditors of the transferor. Miller v. Sire (1915), 224 Fed. 424.

Application; executed contract. It is no defense to an action on a promissory note that it was given by the maker, a defendant in an action of partition, to her codefendant, to carry into effect a parol agreement, whereby the payee was not to bid at the partition sale, but was to allow the maker to bid in the premises. This, because, even though the original parol agreement were void under the Statute of Frauds, it has been fully carried out by the parties, and also because the action is brought upon the notes and not upon the oral agreement itself. Kyner v. Bolton (1916), 171 App. Div. 45, 156 N. Y. Supp. 881.

A promise by one person to indemnify another for becoming a guarantor for a third is not within the Statute of Frauds and need not be in writing. O'Brien v. Donnelly (1915), 169 App. Div. 709, 155 N. Y. Supp. 790.

It seems, that a writing in the ordinary form of a non-negotiable promissory note satisfies the requirements of the Statute of Frauds relating to a promise to indemnify one for the default of a third person. O'Brien v. Donnelly (1915), 169 App. Div. 709, 155 N. Y. Supp. 790.

Promise to pay debt of another, consideration.-See Hudson Wrecking & Lumber Co. v. Aldrich (1916), 94 Misc. 250, 157 N. Y. Supp. 1046.

Transfer of goods in bulk.

§§ 43, 44.

A mere refusal to perform a parol agreement void under the Statute of Frauds is in no sense a fraud either in law or in equity. Baum v. Holstein (1916), 93 Misc. 268, 157 N. Y. Supp. 966.

Appeal. The defense of the Statute of Frauds cannot be taken for the first time upon appeal. Kyner v. Bolton (1916), 171 App. Div. 45, 156 N. Y. Supp. 881. See generally Goldman v. Cohen (1915), 167 App. Div. 666, 153 N. Y. Supp. 41.

$43. Factors' act.

Wrongful pledge of personal property by bailee; action by owner; erroneous charge; when pawnbroker entitled to benefit of Factors' Act; statute construed.Where the plaintiff entrusted jewels to a person for the purpose of sale to a particular purchaser with a reservation of title, but the bailee being in possession pledged them with the defendant, a pawnbroker, it is error for the court to charge that if the bailee's agency was limited the defendant acquired no lien upon the property and that the plaintiff is entitled to recover. The defendant pawnbroker, having no knowledge of the limitation placed upon the bailee's powers and he being in full possession of the jewels and the apparent owner thereof, was entitled to the protection of the Factors' Act. Hence, notwithstanding the limitation placed upon the bailee's authority, where the defendant in good faith dealt with him in reliance upon his apparent ownership resting in possession, the defendant is not affected by the character of such possession of which he had no notice, actual or constructive. The expression "upon the faith thereof," contained in this section means upon the faith of the possession. It seems, that the rule might be different if the person pledging the jewels had obtained possession by a crime. Thompson v. Goldstone (1916), 171 App. Div. 666, 157 N. Y. Supp. 621.

§ 44. Transfer of goods in bulk.

Constitutionality of section sustained. Apex Leasing Co. v. Litke (1916), 93 Misc. 353, 158 N. Y. Supp. 21. This section, as amended by chapter 507 of the Laws of 1914, which in effect places an embargo upon all sales of merchandise in bulk under the guise of an expedient designed to prevent fraud in such sales, is unconstitutional. Said statute does not materially differ from chapter 528 of the Laws of 1902 which was declared unconstitutional by the decision in Wright v. Hart, 182 N. Y. 330 and which decision is stare decisis. Klein v. Maravelas (1916), 94 Misc. 458.

Insolvency. The return of an execution, unsatisfied, a year after an alleged fraudulent transfer by a wife to her husband, in violation of this section, does not establish insolvency at the time of such transfer. Wallach v. Baumryter (1915), 170 App. Div. 618, 156 N. Y. Supp. 497.

"Creditors."-A landlord who obtains a judgment for rent under an unexpired lease is a "creditor" of the tenant within the meaning of section 44 of the Personal Property Law, and as such is entitled to maintain an action to set aside as fraudulent and void a sale in bulk of a stock of goods of a business by the tenant. Apex Leasing Co. v. Litke (1916), 93 Misc. 353, 158 N. Y. Supp. 21.

The remedy for a violation of the Bulk Sales Law, is not limited to judgment creditors, and any creditor of the seller, whether his claim is in judgment or not, may maintain an action under the statute. Touris v. Karantzalis (1915), 170 App.

Div. 42, 156 N. Y. Supp. 526.

A transfer by a husband to wife is only presumptively fraudulent and void as to a creditor who has not been notified as provided by this section, and when it appears that the husband by assuming the debts of the wife and making a payment sufficient to pay the creditor, paid all that the property was worth, the presumption is removed. The husband having paid full value, the sale was not fraudulent

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