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and value, and should be carefully provided for. All of this work must be completed at this session of the Legislature, because the new courts are required to go into operation on the 1st of January, 1896. The necessity of early and sustained action on this subject is therefore apparent. It is of special importance that the division of the State into four judicial departments should be made at the earliest date possible, in order that I may discharge the duty which the Constitution imposes upon the governor, of designating the justices of the Supreme Court who shall constitute the appellate division in the several departments. It is important that these justices should be selected and assigned before the legislative session closes, so that they may consult together and advise the Legislature as to what action, on its part, is necessary for the successful inauguration of the new system. As the justices are to have the responsibility of making a practical working court, their advice and assistance should be had in respect to the perfection of the details, while there is still time for their views to receive practical and effective attention.

"2. Section 2 of Article XII, of the revised Constitution requires that the Legislature shall provide for the giving of public notice and opportunity for a public hearing, concerning every special city law, in every city to which it relates, before the mayor of such city accepts or refuses to accept the bill. Such provision seems to be prerequisite to the passing of special city laws, and as a number of new laws are by general consent urgently and speedily required for the city of New York, the provision for hearings before the mayor ought to be made by the Legislature at the earliest possible date. Provision is made in this section for the classification of cities into three legislative classes, on the basis of the latest official enumeration of their populations. Your attention is required to give this amendment its intended effect.

"3. The Penal Code of this State contains numerous and apparently sufficient provisions against gambling. Among these provisions, section 351 makes pool selling and bookmaking upon races criminal offences. By chapter 479 of the Laws of 1887 (commonly known as the Ives Pool bill), the Legislature exempted from the operation of the above mentioned section

the race tracks and grounds of incorporated racing associations during thirty days of each year, and thus permitted, upon those tracks and grounds alone, the acts which remain criminal in all other parts of the State. The revised Constitution, section 9 of Article I, adds to the old provision against lotteries a provision that neither pool-selling, bookmaking, nor any other kind of gambling, shall hereafter be authorized or allowed within this State, and requires the Legislature to pass appropriate laws to prevent offences against any of the provisions of the section. It is well understood that this provision is aimed at the race-track gambling permitted by the statute of 1887, above mentioned, and the Legislature, in obedience to the will of the people thus expressed, should, without delay, expunge the obnoxious law from the statute books.

"4. The provisions of law establishing civil service boards and examinations in this State have hitherto had only legislative and not constitutional sanction. The Court of Appeals has held that, in view of the express powers conferred by the Constitution upon the superintendent of public works and the superintendent of State prisons, the Legislature had no authority to subject the appointments made by those. officers to civil service rules. It is believed that the civil service provision authorized in the revised Constitution as section 9 of Article

V, obviates this difficulty and permits the Legislature to extend the civil service rules to the State prisons, the canals, and other public works of the State.

"5. Upon a separate submission of section 10 of Article VII the people have, by a majority of about 115,000, much larger than that cast. for any other amendment, declared their will that the canals shall be improved in such manner as the Legislature shall provide by law.

"6. The new provision of section 1 of Article IX requires the Legislature to provide for the maintenance and support of a system of free common schools, wherein all the children of the State may be educated. That is now far from being the case, and the Legislature ought to take immediate steps to fulfil this mandate. Special investigation should be made to ascertain what children may be cut off from educa

tional facilities by force of the new provision tor," and by the Hon. Z. C. Lincoln of Little of section 4 of Article IX.

"7. Section 29 of Article III requires the Legislature to provide by law for the occupation and employment of prisoners in the State prisons, and as the same section prohibits a continuance of the present system of employment after the 1st of January, 1897, no time should be lost in considering how the Legislature shall obey this mandate.

"8. The prohibition against selling the Onondaga salt springs has been abrogated. These springs are a constant source of useless and, therefore, unjustifiable expense to the State, and the disposition to be made of them ought to be promptly considered and determined.

"9. Extensive improvements in the agricultural regions of the State are understood to be waiting only for the Legislature to give 'effect to the new provision in section 7 of Article I, which provides for the passage of general drainage laws, to which I make reference elsewhere. "10. The new provisions contained in sections 11 to 15 of Article VIII require the Legislature to provide for a general system of visitation and inspection of charitable institutions, insane asylums and prisons, and for the regulation of public aid to charitable and correctional institutions, wholly or partly under private control. These requirements are aimed at grave existing abuses, and should be promptly complied with."

The 18th annual meeting of the New York State Bar Association will take place at Albany on Tuesday and Wednesday, January 15-16, 1895. The first meeting will be held in the Assembly Chamber at 8 o'clock on Tuesday evening and will be opened by the president's address. delivered by Tracey C. Becker of Buffalo, following which will be an address by the Hon. John F. Dillon of New York city, on "Property, its Rights and Duties in Our Legal and Social System," after which an informal reception will be tendered to Judge Dillon in the Assembly parlor. On Wednesday morning, January 16, the association will meet in the City hall at 10 o'clock. During the morning papers will be read by Rowland Cox on "The Law of Trade Marks;" by William B. Davenport of Brooklyn, on "Some Curious Incidents in the Work of a Public Administra

Valley, who has recently been appointed legal adviser to the governor and a member of the Statutory Revision Committee, on "Citizenship and Right of Suffrage." During the meeting in the morning there will also be a discussion by the members of the association on "What Legislation is Necessary to Carry Out the Provisions of the New Judiciary Article." After the morning session the association will entertain its members and guests at luncheon at the Fort Orange club. In the afternoon papers will be read by Ralph Stone, Esq., secretary of the Michigan Bar Association, on "The Work of Bar Associations; " by J. Newton Fiero, Esq., on "David Dudley Field and His Work;" by Emory P. Chase of Buffalo, on "Stenographers' Fees;" Almet F. Jenks, formerly corporation counsel of Brooklyn, on "The Liability of Municipal Corporations for Damages Caused by Contamination of Their Water Supply." The discussion in the afternoon will be devoted to the subject "Should the Code of Civil Procedure be Revised, Condensed and Simplified?" In the afternoon a reception will be tendered by the association to the judges of the Court of Appeals and justices of the Supreme Court at the Kenmore hotel. papers, as well as the subjects of discussion at the meeting, should make it most attractive and interesting to those members who will be fortunate enough to be present, and it is hoped that many practical results will follow, especially in the simplification and revision of the Code of Civil Procedure, which is at present as unwieldy and tautological as any such instrument well could be.

The

Governor Morton has received over fifty resignations of notaries public who are anxious to vacate their offices so as to make use of passes which they have heretofore had. The secretary of State has also refused to sign the passes for the railroad commissioners on the ground that free transportation of any kind is denied to any public officer by section 5 of Article XIII of the new Constitution. The section under which this action has been taken is as follows:

"No public officer or person elected or appointed to a public office under the laws of this State shall, directly or indirectly, ask, demand, accept, receive or consent to receive, for his

liar or personal interest. It suggests, what was undoubtedly the intention of the framers of this constitutional provision, that the practice of giving passes to public officers for their in

expense, should be stopped, but the powers of the Legislature to provide for the necessary traveling and other expenses of public officers while engaged in public business should not be abridged. This provision of the Constitution must not only be construed in the light of existing statutes, but it will be presumed that it was drafted with full recognition

of them. Section 168 of the general railroad law provided that neither the railroad commissioners, nor their secretary, clerks, agents, employes or experts should accept, receive or request any pass from any railroad in this State, for themselves or any other person. Section 169, on the other hand, declared that such officers, in the discharge of their official

own use or benefit or for the use or benefit of "In view of the statute to which we have another, any free pass, free transportation, referred, the limitation of the provision comfranking privilege, or discrimination in passen-manding a public officer not to accept or reger, telegraph or telephone rates from any per- ceive a pass or free transportation for his own son or corporation, or make use of the same use or benefit' is significant. The office of the for himself or in conjunction with another." word 'own' when following a possessive pronoun, The question at once arises as to whether a pub-is to emphasize or intensify the idea of peculic officer who is a director, agent, or employe or any corporation can accept any pass or other similar privilege from the body corporate in which he is interested. The language used in the Constitution contains no exception individual use, and to save them from personal the case of such official, and the only ground on which a proposition that a director who is a public officer can accept a pass can be maintained is, that the pass or free transportation is part of the salary or compensation of the officer or employe of the railroad, or that the pass is used for a public purpose. It has been considered a privilege rather than the compensation of the director to use passes over his own road, and incidentally to receive certain considerations of a like kind from other roads. The spirit of the law, however, can be easily controverted and nullified by every corporation who will probably receive from its officer or employe money in return for his transportion, and who will afterwards repay the moneys so spent to the officer or employe as part of his salary. In view of this subterfuge, it seems almost unnecessary to discuss the proposition which is being discussed, for a determination of the question, if favorable to the director or employe, will simply prevent much annoyance and trouble to the corporation. Under a strict interpretation of the law, it does not seem possible that even the Hon. Chauncey M. Depew, president of the New York Central road and regent of the University of the State of New York, can accept any pass or free transportation over the New York Central road, or of any other company. But, like the present efforts to secure intact the gold surplus, it will be easy enough for Hon. Chauncey M. Depew to take money out of one pocket and receive it in another. There is no doubt that the idea of the members of the Constitutional Convention was to prevent the use of passes by State officers, and it was against such officers rather than against the directors and employes of the road that the measure was adopted.

of this State free of charge upon passes signed duties, should be transported over the railroads by the secretary of state. In short, the statute

prohibited the public officers named from accepting passes for their own use, but authorized them to use a pass issued by the secretary of state for the public use. So this provision of the constitution prohibits these as well as all other public officers from accepting free passes for their own use or benefit, but it does not prohibit them from accepting passes from the secretary of state providing for their transportation while engaged in public business, as it certainly would do so if it were intended to annul the provision of section 169 relating to that subject. Other reasons might be presented tending to show that the provisions of section. 169 are not condemned by the section of the Constitution, relating to passes, but as the one given seems to be fully adequate, a further discussion will not be indulged."

One exception to the sweeping provisions of the Constitution prohibiting State officials from

using passes has been made by the decision of Judge Alton B. Parker, of Kingston, in granting the writ of mandamus compelling the secretary of state to issue passes to the State railroad commissioners and the employes of that department. The decision is based on the theory that while the Constitution prohibits a State official from accepting a pass "for his own use or benefit," chapter 353 of the Laws of 1882, authorizes the railroad commissioners and their employes to use passes issued by the secretary of State for the public use. Judge

Parker's decision is as follows:

"By chapter 353 of the Laws of 1882, the Legislature created a board of railroad commissioners, and defined and regulated its powers and duties. In addition it assumed by that act the authority to assess upon the railroads of this State a sum not to exceed $50,000 a year to defray the salaries of the commissioners and pay the necessary expenses of the board. By the same act it undertook to provide that, in addition to the $50,000, the actual and necessary cost of transportation upon all railroads actually visited or inspected by the commissioners, their officers, clerks, experts and agents, in the course of a due performance of the duties enjoined by law, should be borne by the railroads so visited or inspected. To accomplish this result the Statute provided that in the discharge of the duties of their office they should be transported over the several railroads in the State of New York free of charge, upon passes signed by the secretary of state; they may employ or take with them experts or other agents whose services they may deem to be temporarily of importance, and who shall also be transported while on such duty, free of charge upon passes signed by the secretary of state. From the time of the appointment of the railroad commissioners under the act referred to, down to January 2, 1895, the commissioners have proceeded in the discharge of the duties by law commanded; the sums necessary to pay the expenses of the board, not exceeding $50,000 a year, have been assessed upon the several railroads in this State by the comptroller and the assessments paid; the sec▾ retary of state has issued such passes in pursuance of the act as the railroad commissioners have requested, and the passes have been recog

But

nized by the railroads affected by them. the application made to the secretary of State January 2, 1895, to issue passes, in accordance with the statute, was refused, the reason assigned being that section 5 of Article XIII of the Constitution of the State of New York, which went into effect January 1, 1895, prohibits the issuing of such passes. It reads: No public officer, or person elected or appointed to a public office under the laws of this State, shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit, or for the use or benefit of an

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§ 1. Covenants usually inserted in the lease part of lessee. The usual covenants on the part of the lessee are to pay rent, to pay taxes, to insure the premises, not to assign or underlet without leave, not to carry on an offensive trade, and to deliver up of the term. Many of these covenants on the part the premises and fixtures in good repair at the end of the lessee correspond to those on the part of the lessor above noticed. Thus the lessee may expressly covenant to keep the premises in repair, and whether he does or does not he is obliged by law to make tenant's repairs and to keep the leased premises wind and water tight. Waste on the part of a

1 Thorndyke v. Burrage, 111 Mass. 531; 1 Schoul. Pers. Prop. (2d ed.), § 31.

tenant, whether permissive or voluntary, will not be tolerated; yet the term "good repair" is a relative one and necessarily depends upon the age of the building, the purpose for which it is leased and occupied, and the like.

On the part of the lessee there are several implied covenants such as to pay rent,3 to make tenantable repairs, and to use the premises in a proper and tenant-like manner and the words "yielding and paying" a stipulated sum raise a covenant to pay rent. 5 In a parol demise of land there is an implied covenant on the part of the lessee that at the expiration of the tenancy he will deliver up vacant possession of the premises to the landlord. It is usual, however, to fix the liability of the lessee to repair by an express covenant. Such a covenant, however, merely binds him to see that the premises do not suffer greater injury than the usual operation of nature to buildings of the age and condition of those on the demised premises; but an express and unconditional covenant to repair and keep in repair will bind the lessee to rebuild in case of destruction by fire or other accident; the word “ repair" being held equivalent to the word "rebuild."sa

9

In the case of Scott v. Scott, the court say that the rule as to covenants to pay in case of destruction has stood the test of time and innovation in England, and remains, I believe, to this day the law of that country. However it may have been changed and modified by adjudication or legislation in some of our sister States, if such be the fact, it has been and yet is the settled and approved law of our State. In Ross v. Overton, the lessee of a mill having covenanted in addition to the rents reserved to make certain improvements and deliver the mill with such improvements at the end of his term in proper tenantable repair, and the mill during the lease having been destroyed by the ice, three arbitrators, to whom the matter was referred, awarded that the lessee should pay the rent, notwithstanding the destruction of the mill, and should perform the other convenants contained in the lease, and the Court of Appeals expressed an opinion that the arbitrators did not mistake the law."1

The generally accepted rule is that an express covenant to repair binds the lessee to make good any injury which human power can remedy; even though caused by storm, flood, fire, inevitable accident, or the act of a stranger.12 An exception, in a

' Hart v. Windsor, 12 Mees. & W. 77. See Makin covenant to repair, for "damage by the elements or v. Watkinson, L. R., 6 Ex. 25.

3 Lynch v. Onondaga Salt Co., 64 Barb. 558; Van Rensselaer v. Smith, 27 id. 104; Kimpton v. Walker, 9 Vt. 191, 198.

4 Nave v.

the act of God," will include only those damages to which human agency in no way contributed. 13

§ 2. Same-Same-English rule.-In the case of Hampshire v. Wickins, the question as to what

Berry, 22 Ala. 383; Lynch v. Onondaga are "usual covenants" in a lease, came before the Salt Co., 64 Barb. 558.

5 Van Rensselaer v. Smith, 27 Barb. 104; Wolveridge v. Stewart, 3 Tyrw. 687; S. C., 1 Cromp. & M. 664; Iggulden v. May, 9 Ves. 330.

"Henderson v. Squire, 2 Best & S. 283.

Stanley v. Towgood, 3 Bing. N. C. 4; S. C., 32 Eng. C. L. 13; Gutteridge v. Munyard, 7 Car. & P. 129; S. C., 32 Eng. C. L. 534.

Phillips v. Stevens, 16 Mass. 238; Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221; Abby v. Billups, 35 Miss. 618; S. C., 72 Am. Dec. 143; Linn V. Ross, 10 Ohio, 412; S. C., 36 Am. Dec. 95; Hoy v. Holt, 91 Penn. St. 88; S. C., 36 Am. Rep. 659; Scott v. Scott, 18 Gratt. 150, 166; Ross v. Overton, 3 Call. 309; S. C., 2 Am. Dec. 552; Digby v. Atkinson, 4 Camp. 275; Monk v. Noyes, 1 Car. & P. 265 ; S. C., 12 Eng. C. L. 159; Brecknock v. Pritchard, 6 Durnf. & E. 750; Bullock v. Drommitt, id. 650. Destruction of premises by fire, and that the landlord has received the insurance money is no defense to the claim for rent. Hoy v. Holt, 90 Penn. St. 88; S. C., 36 Am. Dec. 659. See Bussman v. Ganster, 72 Penn. St. 285; Dyer v. Wightman, 66 id. 425; 427; Fisher v. Milliken, 8 id. 111, 122; Magaw v. Lambert, 3 id. 444.

ea Flower v. Payne, 49 Miss. 32.

|

918 Gratt. 166.

10 3 Call. 309; S. C., 2 Am. Dec. 552.

11 See Maggart v. Hausbargar, 8 Leigh, 536.

12 Leavitt v. Fletcher, 92 Mass. 119; Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221. See Wells v. Calnan, 107 Mass. 514, 518; S. C., 9 Am. Rep. 65; Kramer v. Cook, 73 Mass. 550; Bigelow v. Collamore, 59 id. 226, 231; Phillips v. Stevens, 16 id. 238; Fowler v. Bott, 6 id. 63; Allen v. Culver, 3 Den. 284, 294; Ingle v. Jones, 69 U. S. 7; bk. 17 (L. ed.), 762; Paradine v. Jane, Aleyn, 27; S. C., Style, 47; Bullock v. Dommitt, 6 Durnf. & E. 650; S. C., 3 Rev. Rep. 300; Green v. Eales, 2 Q. B. 255; S. C., 1 Gale & D. 468; Compton v. Allen, Style, 162.

13 Polack v. Pioche, 35 Cal. 416; S. C., 95 Am. Dec. 115. See Turner v. Tuolumne Water Co., 25 Cal. 397, 403; Fish v. Chapman, 2 Ga. 349; S. C., 46 Am. Dec. 393; Ferguson v. Brent, 12 Md. 9; S. C., 71 Am. Dec. 582; Michaels v. New York Cent. R. Co., 30 N. Y. 564; S. C., 86 Am. Dec. 415; Merritt v. Earle, 29 N. Y. 115; S. C., 86 Am. Dec. 292; McArthur v. Sears, 21 Wend. 190; Ewart v. Street, 2 Bail. (S. C.) 157; Forward v. Pittard, 1 Durnf. & E. (1 T. R.) 27; S. C., 1 Rev. Rep. 142. 14 38 L. T. (N. S.) 408.

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