party appeared, and the judgment was collaterally attacked for lack of jurisdiction.

There can be no distinction drawn between a forged notice of appearance and a notice really given by an attorney not authorized to give it. The notice of appearance in neither case reaches the party. This application is made in the action itself, and it appears that the appellant has never been brought in. No jurisdiction has been acquired over her, even if it be assumed that the attorney was responsible; while for reasons of public policy regularity is assumed, which is based upon an appearance of an attorney of the court, jurisdiction ceases to be assumed when the papers on which it stands are destroyed. The responsibility of the attorney does not help to make a case of jurisdiction over a person if the attorney has no power to confer it. The cases cited to show that a husband may employ an attorney for his wife without service upon her of the summons have no longer any weight. She now has rights to protect and to hold; that an inchoate right of dower is not one of them is against the current of authority. A wife not served has the right to set aside a judgment against her in such an action. 59 N. Y., 629.

Order reversed.

Opinion by Barnard, P. J.; Dykman, J., concurs; Pratt, J., dissents.

[The appeal from this order was dismissed in Court of Appeals, Jan. 27, 1885.-ED.]

TERM. SECOND DEPT.

H. McGann, applt.
The People, respts.. v. Patrick

Decided Dec., 1884.

The prohibition contained in § 6 of Chap. 202, Laws of 1884, is not confined to cases of deception in the manufacture and sale of the article prohibited, but is absolute. Said section is not unconstitutional.

Appeal from judgment of County Court, affirming conviction of defendant for manufacturing and selling oleomargarine in violation of § 6, Chap. 202, Laws of 1884.

That section provides that "No person shall manufacture out of any oleaginous substance or substances or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk or cream of the same, or shall sell or offer for sale the same as an article of food."

It was proved that defendant manufactured what is called oleomargarine from an oleaginous substance other than that produced from milk or from milk or cream; viz., animal oil extracted from the tallow of beef; that this article is manufactured for sale as a substitute for butter; that it resembles butter so much in appearance and taste that it may be taken for butter by any ordinary person and that it was designed by defendant to take the place of butter as an article of food and a substitute

therefor; that he has sold about 8 pounds of this article as oleomargarine with the design that it should be used for food as a substitute for butter and that the purchaser knew how it was made and of what it was composed and bought it for such use as aforesaid.

Defendant claims that the section was intended only to apply to a case of deception in the manufacture and sale of the article specified.

Held, Untenable. The language employed will not admit of that mild interpretation. It prohibits both the manufacture out of any oleaginous substance except that produced from milk or cream of any article designed to take the place of butter or cheese produced from milk or cream; and also the sale or offer for sale of the same as an article of food. The prohibition, so far as it extends, is absolute, and if the legislature possessed the power to make the law it must be respected and enforced.

Without constitutional limitations the power of the legislature to make laws would be absolute, because the law-making power is entrusted by the people to the legislative branch of the state government. But the people have set certain limitations to the lawmaking power, some of which are express and some are implied; one of the express limitations is that no person shall be deprived of life, liberty or property without due process of law. If, therefore, the law in question falls under the

condemnation of the constitution it is because it offends against this limitation of legislative power. This constitutional restriction has received exhaustive examination in 13 N. Y., 378, and 74 id., 509, and in both of these cases the conclusion was reached that notwithstanding such restriction the legislative power extends to the entire prohibition of the traffic in spirituous liquors. This doctrine proceeds on the theory that the legislature may prohibit and suppress any traffic injurious or demoralizing either to public health or public morals or in its tendencies or consequences; and that the conclusion and decision of the legislature on the question of fact involved is final and conclusive. See also 16 Wall., 36. These cases are sufficient to sustain the constitutionality of the law under consideration.

It must be assumed in the consideration of this statute that the legislature ascertained that the use of this prohibited article was injurious and detrimental to the public and so found it necessary to advance in respect to the same beyond the point of regulation to actual prohibition. The presumption is that such legislative action was deemed necessary for the welfare of the public and it cannot be abrogated by the courts. With these necessary assumptions this law falls easily within the police power of the state; which is a power vested in the legislature to ordain such laws and ordinances as shall be deemed essential and necessary for the

welfare, health and prosperity of the public.

The underlying foundation of the power is the principle that all property must be so used that it shall not become injurious to others. All reasonable restraints may be imposed for the attainment of this end which may be deemed necessary by the law: making power, even though they amount to absolute prohibition, and the propriety of such restrictions is a legislative question entirely free from all judicial control.

Judgment affirmed.

Opinion by Dykman, J.; Barnard, P. J., concurs; Pratt, J., dissents.

FRAUD.

N.Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Daniel Gavin, respt., v. Ferdinand H. Duckwitz, applt.

Decided Jan., 1885.

In an action to recover back the purchase price of stock, on the ground of fraud and deceit in representing it to be paid-up stock, it appeared that a few months previously plaintiff had sold to defendant unpaid stock in the same company, but did not know whether it had been afterwards paid up, and no particular shares were mentioned as the stock which defendant should transfer to plaintiff, and defendant was secretary and treasurer of the company. Held, That it was properly left to the jury to determine whether plaintiff knew, or must have known, that the stock

purchased was not paid-up stock, and, therefore, did not understand defendant as representing otherwise, but simply that he would subsequently pay the balance so as to make it paid-up stock.

Appeal from judgment entered upon verdict, and from order de nying motion for new trial made upon the minutes.

Action to recover back the pur chase price of stock, on account of fraud and deceit in falsely representing that it was fully paid-up stock. On February 24, 1882, defendant sold and assigned to plaintiff twenty shares of stock in a company, being of the par value of $25 per share, for $550, and represented, as plaintiff claimed, that the subscription for the stock had been fully paid up; whereas, in fact, only sixty-two per cent. had been paid. Plaintiff, on discovering this fact, reassigned the stock to defendant and tendered the same back to him, and demanded the money paid therefor. It appeared that in November, 1881, a few months previous to the above transaction, plaintiff was the owner of sixty shares of stock in the same company, upon which he had paid half the amount of the subscription, and sold the same to defendant for about the sum he had paid in upon the stock, in part payment of which defendant gave his note for $500, the surrender of which to him was the principal consideration for the transfer by him to plaintiff of the twenty shares of stock above mentioned.

Plaintiff testified that he knew that the stock he sold to defendant was not paid up, and that the last he knew about the stock he supposed it was not paid up. Ap pellant contended that this evidence shows that plaintiff knew, or must have known, that the stock

ant three months afterwards was not paid-up stock, since he knew that the stock in the same company which he previously sold to defendant was not paid up, and that he simply understood that defendant would subsequently pay the balance so as to make it paidup stock, and that being the case no recovery can be had in this action founded on fraudulent representations, which he believed and relied upon to his damage.

The jury found in favor of plaintiff.

C. K. Robinson, for applt.

Seaver & Marcy, for respt.

paid up the stock that he would transfer to him, and if his testimony is correct, defendant, in what he stated at the time and subsequently, gave plaintiff to understand that this was paid-up stock. The question presented is a close one, but under all the circumstances of the case we think the question was one for the jury and not for the court. 30 N. Y., 26. Judgment affirmed.

Opinion by Haight, J.; Barker, and Bradley, JJ., concur.

SUPERVISORS.

GATES.

SURRO

If this construction is to be placed upon the evidence, the position of appellant would be correct, for then his subsequent failure to pay the amount still due upon the stock would be a breach of contract only; but upon a careful reading of the entire case we are of the opinion that the evidence is capable of a different construction. It is true that plaintiff knew that the stock he transferred some months before to defendant was not paid-up stock, but whether it had been subsequently paid up by defendant he had no knowledge. No particular shares of stock were mentioned as the stock which defendant should transfer to plaintiff. Defendant was secretary and treasurer of the company and had charge of its books. Some of the stock of the company had been fully paid up. Plaintiff evident

TERM. THIRD DEPT.

The People ex rel. Z. S. Westbrook, applt., v. The Board of Supervisors of Montgomery County, respt.

Decided Jan., 1885.

The duty imposed upon Supervisors by § 81 of the Code is performed when they furnish one proper room, &c., in their county for a court of record.

And although by § 2505 of the Code a Surrogate must also execute the duties of his office at such other places within his county as the public convenience requires, he cannot (after a room has been furnished as aforesaid in a certain town) order the Sheriff to provide him another room in another town and make the expense a county charge.

This was an appeal from an order of Special Term denying motion of relator, Surrogate and County Judge, for a peremptory mandamus requiring respondents to audit and allow his claim for

rent of a Surrogate's office at Amsterdam, where relator resides. He had by order established an office at Amsterdam and held Surrogate's Courts there regularly. Amsterdam and vicinity, distant from Fonda eleven to fifteen miles, have about half the population of the county. The supervisors say that they have provided a Surrogate's office at the Court house in Fonda. They refused to make any provision for an office else. where. Under Code § 31, the Surrogate ordered the Sheriff to make the requisite provision at Amsterdam. This was done and the Supervisors declined to pay this charge. At Special Term they succeeded.

Z. S. Westbrook, for applt.
H. Dunkel, for respt.

Held, No error; that the duty imposed upon Supervisors by § 31 of the Code is performed when they furnish one proper room, &c., in their county, for a court of record, and although by § 2505 of the Code a Surrogate must also execute the duties of his office at such other places within his county as the public convenience requires he cannot, after a room has been furnished as aforesaid in a certain town, order the sheriff to provide him another room in another town and make the expense a county charge.

Order affirmed, without costs. Opinion by Learned, P. J.; Bockes, J., concurs; Landon J., not acting.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFth Dept.

Matthew J. McCusker, respt., v. John Carlson, applt.

Decided Jan., 1885.

Declarations made in the presence of a party are received, not as evidence in themselves, but for the purpose of enabling the jury to determine whether or not a reply was called for, and if called for, was it the intention of the party by his silence to acquiesce in the truthfulness of the statement. Where, therefore, a jury asked the justice whether, when plaintiff said that the brick did not come out as recommended and defendant kept silent, they should construe his silence as an admission that he had recommended the brick, and the justice answered "No," Held, That the reply was correct as far as it went; that the court could not charge as a matter of law that defendant's silence amounted to an admission.

Plaintiff should have requested the justice to instruct the jury, that the circumstance might be taken into consideration as a matter of evidence in determining whether defendant intended to acquiesce in the truthfulness of the statement.

Appeal from judgment of County Court, reversing judgment entered in a justice's court in favor of defendant of no cause of action upon the verdict of a jury.

Action to recover damages which plaintiff claimed to have sustained upon a breach of warranty of a brick kiln.

After the case had been submitted to the jury and they had retired to deliberate upon their verdict, they returned into court and propounded the following question in writing to the justice: "When McCusker said at the kiln that the brick does not come out