clined to give this instruction otherwise than had already been charged, and to that the defendant's counsel excepted; and this exception was well founded. For the jury had not been instructed to that effect by the court. But the directions they had received placed them at liberty to convict the defendant of an assault in the second degree, and that there was no evidence to sustain. In the case of the People v. Thompson, 41 N. Y., 1, the defendant was convicted of the crime of murder in the second degree, when the offense the evidence tended to prove was murder in the first degree. And it was the judgment of the court that the practice to be followed to avoid that inconsistency was to ask such a direction from the court as was requested in this case. But without that request, followed by an exception in case of its refusal, the point could not then be considered. That, however, is no longer the law in this court, for now by statute a reversal may be directed where a material error has arisen without an exception.

The evidence of what was done by the defendant when these girls first visited the defendant's apartments supplied no foundation for this verdict, for no intent was in any form there made to appear to commit a felony. And that intent is a necessary feature of an assault in the second degree, when it depends upon subd. 5 of § 218 of the Penal Code.

What is stated to have taken place on the first meeting of these persons was no more than an assault in the third degree, even if it could be legally held to have created that crime. People v. Bransby, 32 N. Y., 525.

The offense of which the defendant was convicted was not proved, and the court should have given the instruction which was asked to the jury. And for the omission to do so, the judg ment should be reversed and a new trial ordered.

VAN BRUNT, P. J., and BRADY, J., concur.

CHRISTIAN EBERSPACHER, App'lt, v. LEOPOLD BOEHM, Resp't. (Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. BANKRUPTCY-DISCHARGE OF JUDGMENT-LACHES.

Delay in applying for a discharge in bankruptcy after adjudication is a subject for the sole consideration of the bankruptcy court, and cannot prevent such discharge from being used to obtain a cancellation of a judg ment recovered against the bankrupt.

2. SAME.

The statute requires the court to go no further than to ascertain that a discharge has in fact been granted, and that two years have since expired, and when these facts appear it is the duty of the court to cancel and discharge the judgment.

APPEAL from an order cancelling and discharging a judgment recovered by the plaintiff against the defendant.

B. C. Chetwood, for app'lt; Jacob S. Hawes, for resp't.

DANIELS, J.-The judgment which has been ordered to be discharged was recovered on the 15th of August, 1881. In January, 1873, proceedings in bankruptcy were commenced against the defendant in the United States district court for the southern district

of New York, and in which he was adjudged a bankrupt in February of that year. The defendant immediately thereafter absconded from the United States, and remained in Europe about eight years. Upon his return the summons and complaint in this action were served upon him, and the judgment afterwards recovered against him by default. He afterwards applied for his discharge as a bankrupt in the proceedings commenced against him in 1873. And that discharge was granted on the 30th of December, 1887. And early in 1890 notice of motion was given, upon proof of this discharge, for the cancellation and discharge of the judgment of record. And in March, 1890, the order to that

effect was entered.

The application was resisted, and the appeal has been brought, because of the long delay which followed the adjudication of the defendant as a bankrupt before he applied for his discharge. And that might be found to be a successful objection, if the law remained as it was held to be in McDonald v. Davis, 12 Hun, 95. But it has not continued in that condition. Chapter 52 of the Laws of 1875 simply empowered the court to discharge the judg ment after the expiration of two years from the time of granting the discharge, without making it mandatory that it should be done. But by 1268 of the Code of Civil Procedure, which took effect on the 1st of September, 1877, the authority was made mandatory that the court must make the order when the application shall be made after two years have elapsed since the bankrupt was discharged from his debts. These two years had expired before notice of the motion which resulted in the order was served. And that service followed the two years so closely as to exempt the defendant from the accusation of laches in bringing the motion to a hearing. His delay in applying for his discharge in the bankruptcy proceeding was a subject for the sole consideration of the United States district court. And as long as it did not prevent the discharge from being granted, it could not under this statute prevent it from being used to obtain a cancellation of this judgment. For that object the court was required to go no farther than to ascertain that a discharge had in fact been made, and that two years had after that expired before the motion was noticed for the cancellation of the judgment. Both facts existed in support of the application, and when they were made to appear it became the duty of the court to cancel and discharge the judg ment, as it did by this order. The order should, therefore, be affirmed, with ten dollars costs and the disbursements.

VAN BRUNT, P. J., and BRADY, J., concur.

In the Matter of the Application of THE BOARD OF HOME MISSIONS Under the Will of Henrietta A. Lenox, Deceased.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) COLLATERAL INHERITANCE TAX-EXEMPTION-BOARD OF HOME MISSIONS.

The Board of Home Missions is not exempt from taxation under its charter or the laws of the state, and, therefore, a legacy to it is subject to the collateral inheritance tax.

N. Y. STATE REP., VOL. XXXIII.

100

APPEAL by the people and the comptroller of the city and county of New York from an order of the surrogate of that county directing the executors of the estate of Henrietta A. Lenox to pay the sum of $2,500 to the Board of Home Missions.

Benj. F. Dos Passos, for app'lts; Hamilton Odell, for ex'rs.

DANIELS, J.-The Board of Home Missions of the Presbyterian Church in the United States was created a corporation by chapter 287 of the Laws of 1872. But the act did not exempt it from liability to taxation under the general laws of the state.

A legacy of $50,000 was given to this board by the will of the testatrix, Henrietta A. Lenox. And the executors paid the sum of $17,500 of the amount to the board, reserving the residue for the collateral inheritance tax. The board considered that to be unauthorized, and petitioned the surrogate for an order directing the payment to it of this reserved amount. And the surrogate made the order from which the appeal has been brought.

The board has not been exempted from taxation by any law of the state. In that respect it stands precisely as the board of Foreign Missions does, whose case has been already examined. And for the reasons then given, the order made on the application of this board should be reversed, with ten dollars costs and the disbursements.

VAN BRUNT, P. J., and BRADY, J., concur.

JULIA L. ELLIS, App'lt,, v. THE MAYOR, ETC., OF NEW YORK, Resp't.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) EMINENT DOMAIN-AWARD-REQUIREMENT of deed.

The order confirming the report of commissioners to estimate the value of lands taken by the city for a public park, under Laws 1884, chapter 522, directed that on payment of the awards the owners should execute and deliver to the city a quit-claim deed of the lands. Plaintiff refused to give such deed and brought this action to recover the award made to her. Held, that the requirement of the order was not improper and imposed no hardship on plaintiff, and that if it was not a wise precaution the remedy was by appeal from the order and not by way of resistance to it in an action to recover the award.

APPEAL from a judgment dismissing the plaintiff's complaint, and from an interlocutory judgment overruling a demurrer to the sixth defense contained in the defendant's answer.

John Berry, for app'lt; William H. Clarke, corporation counsel, for resp't.

DANIELS, J.-The action was brought to recover the amount of awards made to the plaintiff by the commissioners of estimate, appointed and acting under chapter 522 of the Laws of 1884, for lands owned by her and included within the bounds of Pelham Bay Park. When the report of the commissioners was confirmed it was further directed by the court confirming it as follows:

"And it is hereby further ordered that whenever the awards are paid to the owner or owners, person or persons adjudged by said report to be entitled thereto, except where the owner or

owners, person or persons interested therein shall be under the age of twenty-one years, non compos mentis or otherwise legally disqualified or incapable to execute a conveyance, the said owner or owners, person or persons interested therein shall execute and deliver to the mayor, aldermen and commonalty of the city of New York a quit-claim deed or deeds of his or her said lands and premises so taken in this proceeding; said deeds to be drawn by the counsel to the corporation."

The plaintiff declined to comply with this order of the court, and she applied by motion to strike it out. But that was refused, for the reason that if any such rights as claimed by said Julia L. Ellis remain after condemnation of the lands for the new parks in the proceeding, the valuations are excessive and the award should be sent back for revision, and the moving party should not be paid the full value of her fee in her lands condemned and at the same time be permitted to refuse to give quit-claim deed or deeds thereof to the city, and it is further ordered that if the said Julia L. Ellis prefers to have the said report sent back for revision as to the award made to her rather than to give the quitclaim deed required by the said order of the 12th of December, 1888, upon two days' notice to the counsel to the corporation, she may move for such an order.

And no further action was taken in her behalf, beyond the fact of demanding payment of the awards, prior to the commencement of this action for their recovery, and the complaint was dis missed, as her demurrer had previously been overruled, because of her refusal to comply with the order in controversy or to accept the modification finally made as the result of her motion to

vacate it.

The law under which the plaintiff's land has been taken has provided for vesting the title in the city, on the confirmation of the final report of the commissioners; and for the payment of the sums estimated and reported by the commissioners, to the parties respectively entitled thereto, within four months after the confirmation of the report. But neither this law, nor either of the authorities cited to support the appeals, have forbidden the further requirement added to the order of confirmation in this instance. The object the proceedings were designed to secure was the acquisition of a complete title to the property by the city of New York. And this order was no more than a salutary precaution adopted for that end. It imposed no hardship upon, and in no way tended to prejudice the rights of the claimants of the money awarded, for all that was exacted was a quit-claim deed. And such a deed would do no more than avoid any possible defects or irregularities in the proceedings, and secure to the city a complete record title to the lands. It was neither a hardship or inconvenience to require its execution and delivery before the payment of the money. And if it was not a wise precaution to demand it, the manner provided for correcting the error is that of an appeal, and not by way of resistance to it in an action to recover the awards. The court had jurisdiction of the subject-matter of the proceeding, and of the parties to it, as all

the owners of land taken were, and in making the order it acted judicially; and so it did in the consideration afterwards devoted to it in the decision of the plaintiff's motion to vacate it. And if its power to make the order was intended to be further questioned, it should have been done by an appeal. That was held to be the remedy in Morris v. Mayor, 29 N. Y. State Rep., 376, where the order itself was considered to be unwarranted. That remedy the plaintiff declined to pursue, and endeavored to avoid the order collaterally, which can only be successful when there is a complete absence of jurisdiction, either of the party or the subject-matter, or both.

The interlocutory judgment overruling the demurrer, and the judgment finally dismissing the complaint, seem to have been right, and they should be affirmed.

VAN BRUNT, P. J., and BRADY, J., concur.

THE PEOPLE ex rel. CHESTER S. SCIFORD v. CHARLES F. MACLEAN et al., Com'rs.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) MUNICIPAL CORPORATIONS-POLICE-REMOVAL.

Relator was removed for neglect of duty in failing to arrest a man who made a murderous assault on a woman. The blow was given suddenly, and relator on attempting to arrest the man was caught by the woman and swung around, and while freeing himself the man escaped. Held, that no neglect of duty was shown and that the removal was improper.

CERTIORARI to review dismissal of relator from police force. Louis J. Grant, for relator; John J. Delany, for resp'ts.

VAN BRUNT, P. J.-The relator was charged with neglect of duty in failing to arrest a man who committed an assault upon a girl in his presence which resulted in her death.

We find no evidence whatever to sustain the dismissal of the relator in this case. It is true that he did not succeed in arresting the murderer, as it was his duty to do; but the whole of the evidence shows that the blow was given suddenly, unexpectedly and without a word of warning, and that the relator immediately attempted to arrest the murderer, but was caught by the arm by the dying woman, and swung partly round, and whilst freeing himself from her grasp the murderer got out of the door and temporarily escaped. We cannot see in this evidence proof of neglect of duty. The relator had been but a short time upon the force, and had not had consequently that experience which older members of the force have acquired; and if he did not succeed as well in the performance of his duty as some more experienced man might have done, such want of success affords no ground of dismissal. If he did the best he could under the circumstances, that is all that could be expected, as there was nothing to show absolute incapacity.

The proceedings should be reversed, and the relator restored, with costs.

BRADY and DANIELS, JJ., concur.