his illegitimate children, it seems to me that, where the title to real property in this state is affected, such a marriage must be one which is valid in this state or would be recognized by the laws of this state. The property in question is property in which Benjamin F. Olmsted had a life estate, with a remainder that vested in his children. When Olmsted removed from this state, he left here a wife and children, in whom this remainder had vested. The action for divorce against his wife was not effective to dissolve the marital relation, and his wife, therefore, remained until her death his only lawful wife, and the issue of that marriage his only legitimate children. During the life of his wife, he was incapable, according to the law of this state, of contracting another valid marriage, and his contracting a marriage which was invalid according to the law of this state could not, I think, have the effect of legitimatizing children who were concededly illegitimate, so as to divest his legitimate children of property that had vested in them.. Whether these children would be legitimatized in Michigan by virtue of the law of this state does not seem to be material. The case of Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669, presents an entirely different question. There was no impediment to the marriage of the parents in that case, and, the parents of the illegitimate child having contracted a valid marriage, which by the law of their domicile at the time of such marriage legitimatized the child, it was held that the child, having become legitimate according to the law of the domicile of the parents at the time of the marriage, would here be regarded the same as if born after the marriage. There was no question in that case of divesting the children of one of the parents of the illegitimate child of property that had vested before the alleged marriage; the question arising as to real property acquired subsequent to the alleged marriage by the father as to which he died intestate.

It seems to me that as the parents of the appellants could contract no lawful marriage which would be recognized in this state at the time of the alleged marriage, the effect of which it is claimed legitimatized the appellants, the appellants were not legitimatized in this state; and I think, therefore, the judgment was right, and should be affirmed.

(118 App. Div. 564)

WINQUIST v. PRESTON.

(Supreme Court, Appellate Division, Fourth Department. March 6, 1907.) COURTS-MUNICIPAL COURTS-ADJOURNMENT.

Under Code Civ. Proc. § 2983, providing for adjournment of cases in Justices' Courts, where commissions are issued, to afford opportunity for their execution and return, and the city charter of Buffalo, making this provision applicable to the Municipal Court, the calling of a case for trial in that court, the introduction of a commission, and an objection to its admission because not properly executed, was not such a commencement of the trial as to deprive the court of power to order an adjournment to permit the commission to be corrected.

Appeal from Special Term, Erie County.

Action by Wallace H. Winquist against James F. Preston. From an order denying a motion to set aside an order for the examination of the defendant in supplemental proceedings, and to vacate the judg

and 136 New York State Reporter

ment upon which such proceedings were based, defendant appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and' ROBSON, JJ.

Charles Newton, for appellant.
Peter Maul, for respondent.

WILLIAMS, J. The order should be affirmed, with $10 costs and disbursements.

The motion in County Court was based upon the claim that the judgment was void for want of jurisdiction in the Municipal Court of the city of Buffalo to render the same. It was claimed the court lost jurisdiction of the action by adjourning the same against defendant's objection. The case having been adjourned from time to time by consent of the parties, on May 23, 1906, it was called for trial. A commission had previously been issued to take the evidence of witnesses residing in Massachusetts, and had been returned. The plaintiff's counsel attempted to read evidence from this commission, when objection was made by defendant's counsel that the commission was not properly executed. The plaintiff then, before any evidence was read from the commission or taken from other witnesses, applied for an adjournment of the case to permit the commission to be returned to Massachusetts for correction. The defendant objected to the adjournment upon the ground that the court had no power to adjourn at that time; the trial having been commenced. The court overruled the objection and adjourned the case to June 1, 1906. On the adjourned day the defendant made no appearance, except to object to the jurisdiction of the court to proceed further in the case, having lost jurisdiction thereof by adjourning it without defendant's consent after the trial had begun. The plaintiff made his proof and the judgment. was ordered. A transcript was filed in Erie county, and the supplemental proceedings were based thereon.

The question here is whether the judgment is void for want of jurisdiction in the Municipal Court, for the reason alleged. It seemed to be assumed on the trial that the court had power to adjourn the case to have the commission corrected, if it had been done before the trial had commenced. There are provisions in the Code of Civil Procedure for adjournment of cases in Justices' Courts, where commissions are issued, to afford opportunity for the execution and return of the commissions (section 2983), and this provision is applicable to proceedings in the Municipal Court of the City of Buffalo (Charter, § 456). These provisions undoubtedly cover cases where commissions are defectively executed and need to be returned for correction. We might be willing to concur in the defendant's position that a case could not be adjourned in Justices' Courts, or in this Municipal Court, after the trial has commenced. In this case, however, there had been really no commencement of the trial. The lawyers and the court had done some talking. Some offers, objections, and rulings had been made, but no evidence had been taken, and we think the court correctly held that the trial had not commenced in such a sense as to deprive the court of

the power to adjourn the case for the mission to be corrected and returned. sion, we do not deem it essential to raised upon this appeal.

purpose of procuring the comHaving arrived at this conclupass upon the other questions

Order affirmed, with $10 costs and disbursements. All concur.

(117 App. Div. 754)

HEGEMAN v. STEARNS REALTY CO.

(Supreme Court, Appellate Division. Second Department. March 8, 1907.) INFANTS--SALE OF LAND-REFERENCE.

Code Civ. Proc. § 2354, regulating the sale of lands belonging to infants, provides that on petition for such sale and the filing of a bond, where the filing of a bond is required, the court shall appoint a referee to inquire into the merits of the application, and that the referee shall hear proof and report his opinion thereon, with the testimony. Held, that where petitioner's attorney prepared an order of reference and presented it to the referee, but never saw the order signed by a judge of the court, and no order appointing a referee was on file among the papers in the proceeding, the sale was void.

Hirschberg, P. J., and Hooker, J., dissenting.

Appeal from Special Term, Westchester County.

Action by John R. Hegeman against the Stearns Realty Company. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

C. N. Bovee (Frederick C. Lawyer, on the brief), for appellant. Harold Swain (Norman Wilmer Chandler, on the brief), for respondent.

MILLER, J. The action is brought to recover money paid on account of the purchase price of real property contracted to be conveyed to the plaintiff's assignor. It is based on an alleged defective title. The defendant's title depends upon the validity of proceedings to sell an infant's real property, pursuant to section 2346 et seq. of the Code of Civil Procedure. The defect alleged is the absence of the order of reference required by section 2354. The papers in said proceeding on file in the county clerk's office are the petition of the guardian of the infant, who was under the age of 14, the consent and order appointing the special guardian, the undertaking of said guardian, the report of a referee, the order of the Supreme Court confirming the report and directing a conveyance, an agreement to convey, an order of the court confirming said agreement and directing a conveyance, the report of the special guardian, and the order confirming it. The petition alleged that a sale was necessary in order to save a sale of the property to satisfy liens, and that the infant's interest was worth only. $100, and that was the amount realized. The final order in the proceeding was granted October 13, 1902. The deed was delivered by the special guardian on the 9th day of October, 1902, and on the same day the grantee borrowed $3,000, in addition to the incumbrances then on the property, from the mortgagee, who was claimed to have been

102 N.Y.S.-65

and 136 New York State Reporter

threatening foreclosure. The report of the referee and the order confirming it recite the appointment of the referee. The deputy county clerk testified that there was no order of reference in the clerk's office and no record of the entry of such order. The attorney for the petitioner in said proceeding testified:

"I prepared a paper, which would have been an order of reference, had it been entered, and gave it to Mr. Lockwood [the latter was the referee]. I never saw that paper signed by a judge of the Supreme Court."

We need spend no time on the proposition that a proceeding in derogation of the common law to sell an infant's real property depends for its validity on a strict compliance with the terms of the statute authorizing it. If there was no order of reference, the proceeding was absolutely void, and the proof on that point is the only question now involved. The respondent urges that the recitals in the order confirming the report of the referee furnish presumptive evidence in proof of the order. I do not think we need to determine now to what extent such presumption could be indulged, or whether the burden was upon the defendant to show compliance with the statute, because it seems to me that whatever probative force the recitals may be entitled to is overcome by the testimony of the attorney who had charge of the matter, and the only fair inference from his testimony is that he never made application to the court for the order of reference. He tells what he did. That was to prepare a paper and hand it to the alleged referee. It would not have been proper for him to have suggested to the court the referee to be appointed; much less could he prepare a proposed order and leave it to the referee named therein to have himself appointed. The referee evidently assumed that the paper handed him was in fact an order granted by the court, and that accounts for the fact that no such order is found in the papers on file. I think this view makes further consideration of the case unnecessary, and requires the conclusion that the purchaser was not bound to accept the title offered.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide event. All concur, except Hirschberg, P. J., and Hooker, J., who dissent.

(118 App. Div. 35)

MURRAY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department. March 8, 1907.) DAMAGES-PERSONAL INJURIES-MEASURE OF DAMAGES-LOSS OF EARNINGS. The amount earned by one while working for a bookmaker in placing bets on horse races, in violation of Pen. Code, § 351, immediately prior to an accident resulting in his personal injury incapacitating him from continuing in such work, cannot be considered in fixing the amount of his damages.

Appeal from Trial Term, Kings County.

Action by William S. Murray against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order deny.

ing a motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered.

Argued before PATTERSON, P. J., and MCLAUGHLIN, INGRAHAM, CLARKE, and SCOTT, JJ.

Henry A. Scheuerman, for appellant.
Thomas D. Adams, for respondent.

MCLAUGHLIN, J. On the 11th day of September, 1902, between 5 and 6 o'clock in the morning, the plaintiff was a passenger on one of the defendant's south-bound Third Avenue cars. He took the car at Forty-Second street, and as it approached Twenty-Sixth street he testified he indicated to the conductor a desire to get off at that point; that in obedience to the information thus imparted the car was brought to a standstill at Twenty-Sixth street, and, while he was in the act of getting off, it was suddenly started, he was thrown to the street, and one of the wheels of the car ran over his foot, cutting off three toes; that he was taken to the hospital, where he remained between five and six months, and thereafter was compelled for a period of some eight or nine months to use crutches; that from that time down to the time of the trial he had been unable to render the service which he did immediately prior to the accident; and. in addition to the injuries complained of he alleged, by way of special damage, that prior to the accident he was earning in his occupation $70 a week, and which sum by reason of his injuries, he had been unable to earn from the time of the accident to the time of the trial. At the trial the plaintiff was permitted to prove, against the objection and exception of defendant, that immediately prior to the accident he was employed by a bookmaker at a salary of $70 a week, and his duties consisted in placing bets on horse races, which work necessitated activity upon his part, and at times he had to run from one bookmaker to another to ascertain the rates upon the horses, and to place the bets. In submitting the case to the jury, the learned trial justice was requested to charge that the jury could not take into consideration, for the purpose of fixing damages, the amount claimed to have been earned by the plaintiff while working for the bookmaker, inasmuch as that work was in violation of section 351 of the Penal Code, which prohibits gambling, betting, etc. The request was refused, and an exception taken.

I am of the opinion there was sufficient evidence to go to the jury upon the question of defendant's negligence, as well as the contributory negligence of the plaintiff, but that the court erred in refusing to instruct the jury, as requested by defendant's counsel, that it could not consider, as fixing the amount of damage, the wages paid by the bookmaker to the plaintiff in placing bets. The plaintiff, according to his own testimony, was violating the law, and, when person is committing a crime, he cannot use the wages paid to him for doing it as the basis for a recovery in a civil action. Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 118, 5 L. R. A. 340, 12 Am. St. Rep. 819. No one would . contend that, if a pickpocket should have his hands cut off by the negligence of another, the amount which he realized in that pursuit prior to the injury could be used as the basis of damage; nor would any one contend that a burglar, if injured by the negligent act of an