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and 118 New York State Reporter trial or in the pleadings, coming within the statute, the party of whom the penalty is claimed is to have the benefit of such doubt."

The true purpose is to give effect to the intent of the Legislature as deducible from the language employed, and never to extend the language by implication to cases not within such intent as declared by the words used. Strong v. Stebbins, 5 Cow. 210. And see Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314.

There seems to be no room for doubt that the Legislature, in amending section 1533 of the Greater City Charter, intended to clear some ambiguous question of construction, otherwise the amendment was useless; and we are not to infer such to be the case. Section 1533, before amendment, and under which relator is charged with the misdemeanor, read:

"No member of the municipal assembly, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation shall be or become directly or indirectly interested in or in the performance of any contract, work or business, or the sale of any article," etc.

By the amendment (Laws 1901, p. 632, C. 466) the section is made to read that:

"No member of the municipal assembly, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation, shall be or become interested directly or indirectly as contracting party, partner, stockholder or otherwise in the performance of any contract, work or business, or the sale," etc.

If the section as amended had been in force at the time of the alleged misdemeanor, relator would have come directly within its provisions; but it was not then in force in such form, and, to say the least thereof, it certainly was ambiguous as to whether it would embrace the relation of stockholder to a corporation or not,

Assuming, therefore, that there cannot be attributed to the Legislature the doing of a wholly unnecessary or superfluous act in the amending of the charter to take effect on the ist day of January, 1902, the amendment must be treated as a matter of substance, and to be given effect, and, so considering it, the intent is plain to make the application to stockholders in the future, which necessarily assumes that under the statute as it had stood, within the intent of the Legislature, a mere stockholder was not an interested party. It does not seem to me that the insertion of the word “stockholders” in the amended section was simply to make clear and to remove any doubt without altering the meaning of the clause as it stood. The very fact of this legislative change of itself indicates at least that in the legislative mind the terms first used were doubtful, and open to different constructions, or at least contentions; and if that be so, relator should not have been held. Nor is it hardly reasonable to assume that the amendment of 1901, to take effect on January 1, 1902, was merely in the nature of legislative interpretation or construction of the section as it stood before that time, and only on such view ought the relator to have been held.

I am aware of the fact that distinguished lawyers have taken different views upon the question of whether a mere stockholder is an interested party within the purview of section 1533, p. 535, of the

Greater New York Charter, as it stood before amendment, and that the question might ordinarily present grave ground for debate; but the fact remains that the Legislature has undertaken by its amendment to enumerate stockholders among the class of those subject to the provisions of section 1533 of the Greater New York Charter, and it is but fair to infer that such amendment was made.either because the prior enactment was ambiguous, or because it intended to add to the substance thereof by enacting specifically that stockholders should be liable. Considered in either aspect, the facts before the committing magistrate, in my judgment, did not charge the relator with a crime or misdemeanor; hence the demurrer should be sustained.

Demurrer sustained, with costs.

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PEOPLE V. MARTIN et al. (Supreme Court, Appellate Division, First Department. November 20, 1903.) 1. INDICTMENT-PRESUMPTION OF SUFFICIENCY AND LEGALITY OF EVIDENCE

CONTRADICTORY PROOF--SUFFICIENCY.

On motion to quash an indictment the affidavit of defendant's attorney averred that the affiant had charge, on behalf of the accused, of an inquiry before a committing magistrate; that the witnesses examined before the grand jury on which the indictment was found were the same witnesses examined before the magistrate; that there was no other evidence before the grand jury than that before the magistrate, which was insufficient on which to found an indictment. Held, that these averments were mere conclusions drawn from what the affiant conceived to have been the situation before the grand jury, he not being acquainted with what took place in the jury room, and were insufficient to overcome the presumption that the indictment was on legal and sufficient evidence, where the affidavits in opposition alleged that

there was additional evidence. 2. SAME-SUFFICIENCY OF EVIDENCE-DECISION ON HABEAS CORPUS-EFFECT ON

MOTION TO QUASH.

Where, on habeas corpus proceedings sued out by an accused, it was decided that the evidence before the committing magistrate was sufficient to hold him on the charge made, the claim that the indictment should be quashed because the evidence before the grand jury, which was based on the same evidence as that given before the magistrate, was insufficient on which to found it, was unavailing.

Appeal from Court of General Sessions, New York County.

Robert L. Martin and another were indicted for perjury. From an order denying a motion to quash the indictment, defendants appeal. Affirmed.

See 79 N. Y. Supp. 340, 1141.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Franklin Bien, for appellants.
Henry G. Gray, for respondent.

PATTERSON, J. This is an appeal from an order of the court of general sessions of the peace of the county of New York, denying a motion made by the defendants to quash an indictment found against them, the grounds of the motion being that the indictment

and 118 New York State Reporter was based upon illegal evidence received by the grand jury, to the prejudice of the rights of the defendants, and each of them, before the grand jury; and, further, that the legal evidence received by the grand jury was entirely insufficient to warrant the finding of an indictment against them, or either of them. The indictment was found in December, 1901. The defendants demurred thereto, and the demurrer was sustained in the first instance, but the judgment sustaining it was reversed by this court in August, 1902, and the judgment entered upon that reversal was affirmed by the Court of Appeals in June, 1903, 67 N. E. 589. The offense charged against the defendants and set forth in the indictment is that they, as officers of a corporation organized under the laws of the state of Delaware, had sworn that certain facts stated in a certificate required by the laws of the state of Delaware to be filed in the office of the Secretary of State of that state were true, when in truth and in fact they were untrue to the knowledge of the affiants, and that the statements were false in fact. The motion to quash the indictment was made after the demurrer was finally overruled, and was presented to the court upon affidavits, one of them being made by the attorney for the defendants, who, after giving a general statement of the proceedings had upon the indictment, states that he had personal charge on behalf of the defendants of an inquiry before a committing magistrate, and that the witnesses examined before the grand jury upon which the indictment was found, were the same witnesses examined before the police magistrate, and that there was no other or different evidence produced before the grand jury than that before the police magistrate. He also asserts that the original certificate or statement sworn to by the defendants, and upon which the indictment was based, was not before the grand jury, and that "the only testimony that could have been produced before the grand jury upon which the indictment was found must have been the same that was produced before the magistrate, which was entirely insufficient to warrant the holding of the defendants and entirely insufficient to find an indictment against the defendants, or either of them.” He further asserts that the grand jury had before them only an alleged certified or exemplified copy and alleged photographic copy of the original certificate sworn to by the defendants, and that hence there was not evidence sufficient to justify the finding of an indictment.

It is doubtful, to say the least, whether the order denying the motion to quash the indictment can be reviewed by an independent appeal (People v. Petrea, 30 Hun, 98; People v. Ostrander, 29 Hun, 513; People v. Beckwith, 42 Hun, 366; People v. Hovey, 30 Hun, 354; People v. Rutherford, 47 App. Div. 209, 62 N. Y. Supp. 224; People v. Trezza, 128 N. Y. 529, 28 N. E. 533) or whether, if the order is appealable at all, it must not be brought up for review as an intermediate order on an appeal from a judgment of conviction. It is not necessary, however, to decide that question now, for the affidavits, even if an appeal lies, were entirely insufficient to justify the granting of the application. The assertion that the evidence before the grand jury who found the indictment was none other than that which was produced before the police magistrate is only an assump

tion. It is a conclusion drawn from what the affiant conceives to have been the situation before the grand jury. He was not acquainted with what took place in the grand jury room. He did not attend there, and could not have known what evidence was placed before that body. It appears by the affidavits of Mr. Scheuerman, the assistant district attorney, and Mr. Byrne, that there was a great mass of evidence taken by the grand jury not referred to in the affidavits, not only respecting the admissions of the defendants concerning the due execution of the false certificate, but various other matters. There is no legal proof presented on this motion of what evidence was before the grand jury, and the presumption is that they acted upon sufficient and competent evidence. As said in People v. Glen, 173 N. Y. 399, 66 N. E. 112, the presumption is that an indictment is based upon legal and sufficient evidence until there is satisfactory proof to the contrary. That proof is not furnished simply by an argument contained in an attorney's affidavit that, because insufficient evidence was presented to a police magistrate, other and sufficient evidence was not presented to the grand jury. But even if there were force in the argument in connection with certain circumstances stated in the attorney's affidavit, it could avail nothing here, because it has been decided on habeas corpus proceedings sued out by these defendants that the evidence before the police magistrate was sufficient to hold the defendants upon the charge made against them.

There is nothing in the affidavits used upon this motion sufficient to overcome the presumption as to the regularity of the indictment and the sufficiency of the evidence upon which it was found, and the order appealed from should be affirmed. All concur.

(41 Misc. Rep. 321.)

CULLINAN v. BURKHARD et al.

(Supreme Court, Trial Term, Monroe County. August, 1903.) 1. LIQUOR Tax CERTIFICATE, BREACH OF BOND-SALE BY EMPLOYÉ.

Where a clerk in charge of a pharmacy sold liquor to a person not having a physician's prescription, in the absence of his employer, and without his consent, and contrary to his orders, it did not constitute a

breach of the pharmacist's bond. Action by Patrick Cullinan, state commissioner of excise, against John F. Burkhard and the Title & Guarantee Company of Rochester, to recover the penalty on a bond given to procure a liquor tax certificate as pharmacist. Verdict for defendant. Motion for new trial. Denied.

Mead, Stranahan & Guile, for plaintift.
Charles J. Bissell, for defendants.

DAVY, J. This action is brought to recover the penalty of $500 on a bond given by the defendant John F. Burkhard, as principal, and the defendant, the Title & Guarantee Company of Rochester, as surety, to procure a liquor tax certificate as a pharmacist under subdivision 3, § II, C. 112, p. 53, of the liquor tax law. Under this

and 118 New York State Reporter law each corporation, association, copartnership, or person who has made application for a permit to traffic in liquor is required to give a bond to the people of the state in the penal sum of twice the amount of the tax for one year, conditioned “that if the tax certificate applied for is given the applicant or applicants will not, while the business for which such tax certificate is given shall be carried on, suffer or permit any gambling to be done in the place designated by the tax certificate in which the traffic in liquor is to be carried on, or in any yard, booth, garden or any other place appertaining thereto or connected therewith, or suffer or permit such premises to become disorderly, and will not violate any of the provisions of the liquor tax law; and that all fines and penalties which shall accrue during the time the certificate applied for is held, and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed.” The complaint in substance alleges that a liquor tax certificate was issued to the defendant Burkhard as a pharmacist upon his giving the bond referred to. It was established by plaintiff's witnesses upon the trial that on the 16th day of December, 1901, one Henry C. Adee, a special agent of the department of excise, visited the store of the defendant Burkhard at No. 680 South avenue, in the city of Rochester, and purchased of Frank Snyder, the clerk in charge of said store, one-half pint of brandy, for which he paid Snyder 50 cents. On the 18th day of December, 1901, the said agent, Adee, again visited said premises, and purchased of said clerk, Snyder, onehalf pint of brandy, for which he paid 50 cents. It also appears from the evidence that the special agent, Adee, had no physician's prescription, and none was asked for by the clerk. The answer of both defendants set up a general denial of the violation of law alleged in the complaint. The defendant Burkhard testified that he was not present when either sale was made; that he was absent from home, at the bedside of his sick father, but he had given instructions to the clerk to sell no liquor to any person except upon the prescription of a licensed physician. His testimony was not contradicted by any of the witnesses. When the evidence was closed, counsel upon both sides moved for the direction of a verdict, which was a concession that there was no question of fact for the consideration of the jury, or, in case there was, it should be determined by the court. So that Burkhard's ignorance of the unlawful sale of liquor by his clerk and his good faith in instructing his clerk not to sell liquor to any person unless he had a physician's prescription were determined in Burkhard's favor.

The principal question presented here is whether Burkhard is liable for the statutory penalty for a breach of the bond committed by his clerk in his absence, without his knowledge, and contrary to his direct instructions. I am unable to coincide with the views expressed by the learned counsel for the plaintiff that this is simply a civil action upon a contract imposed by the express provisions of the bond, and that the relation of master and servant existed, and that proof of the violation of the liquor tax law by the servant in the course of his employment makes the master liable for the penalty, even though the liquor was sold without his knowledge or consent, and against

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