of personal property. It was held by this court that the statute applied in the case of a will which related to both real and personal property, and that the next of kin might within the year contest such will as one of personal property, while the probate of the instrument as a will of real property would stand unaffected by such contest or its result. The terms of the statute limited the contest to one regarding the will as relating to personal estate only, and hence the probate already duly made and existing as relating to real estate was not to be affected. In this case the supreme court set aside and reversed the whole decree, and the surrogate has now found the proposed will was not duly executed; and even when the contest is made by an heir at law only the finding of the surrogate prevents the probate of the instrument as a valid will for any purpose whatever. The fact that there is contained in the record here a memorandum of the surrogate, showing his reason for not limiting his decree to a refusal to admit the will to probate as one relating to real estate only, is of no importance. The action of the surrogate was valid in refusing probate to the will for any purpose, and his reasons are not material. The judgment of the general term should, therefore, be affirmed, with costs against the proponent personally. All concur. Judgment affirmed.

3

FINCH, J. This appeal is from an affirmance by the general term of an order of the surrogate of Dutchess county refusing to revoke the probate of the last will of Homer A. Nelson. No question is raised as to the capacity of the testator, or his freedom from any undue or improper influence, and the whole contest is over the inquiry whether the statutory requirements for the due exe cution of the will were all observed. That is a question of fact upon which the findings are conclusive, unless it appears in the record that there is no evidence tending to sustain them; and our examination of the case must be directed to that inquiry. It may be narrowed still further. The will bears the signature of the testator, and the attestation clause those of Baker and Keller, the two subscribing witnesses. There is not the least doubt of the genuineness of all these signatures. It is also certain that they were appended on the day of the execution of the will, and before Keller left the room, for he says that Baker put the will in an envelope, and took it away at the request of the testator; and at least 12 years thereafter, Baker having died, the will, in its envelope, was delivered to the testator, who opened the package and examined the instrument, and receipted for it as his will. That the testator on March 3, 1878, which was the date of the attestation, knew perfectly that he was engaged in a testamentary act, is evident not only from what occurred in his presence, but from his own later statement of the reason which induced him to make his will on that occasion. Baker knew the exact nature of the transaction, for he drew the will, and superintended its execution; and Keller knew it, not only from what was said to him, but from his repeated description of the scene as a solemn occasion. The attestation clause was read aloud by Baker in the presence and hearing of the testator and Keller, so that the testator knew what it recited as emanating from him, and the witnesses what it declared as having occurred in their presTo all that was thus represented to have been said or done by the testator he assented by the approval of silence, if nothing more; and the witnesses, knowing its recitals, certified to their truth by their signatures. The attestation clause is always some proof of the due execution of the will, (In re Cottrell, 95 N. Y. 339,) and where, beyond its presence, the proof is that it was read aloud in the hearing of testator and witnesses, with at least the silent assent of all concerned to its statement of facts, it cannot be denied that there is some, and quite persuasive, evidence of the actual occurrence of the facts recited. When Baker read the statement, obviously speaking for the testator, and in his behalf, that he had signed, published, and declared the instrument in question as and for and to be his last will and testament, his silent assent to the declaration, if he was so silent, furnished evi

dence of his concurrence and approval,-evidence upon which the witnesses at once acted, and without hesitation, and which is put beyond the possibility of mistake by the testator's after-recognition of the will as an existing, executed, and completed instrument. If the attestation clause thus read and adopted had been full and perfect, it would have served, in connection with the other proof, to have justified the probate; but it was not full and perfect, owing to the omission of one of the needed requirements, and it is about that one, omitted from the recital probably by accident, that it is possible reasonably to contend that there was an utter failure of evidence. That omission was of a request by the testator to the witnesses to sign the will as such, and is open to dispute, not only because so omitted, but because the surviving witness denies the fact. He admits, however, that Baker, in the presence of the testator, requested the witness to sign the will, but denies that the decedent in any manner assented, unless by silence; and takes from that some of its force by representing him as apparently inattentive. This witness was Judge Nelson's coachman, who had been in his service for many years, but was disappointed in not finding in the will some legacy for himself. His evidence as a witness was strongly contradicted by his own earlier statement to Mr. Lown that when he came into Judge Nelson's room the latter said that he wanted him to witness his will. It is thus certain that either Baker, speaking in behalf of the testator, or the latter himself, made that request, and it is much the most probable that it came from the testator. Somebody sent for the coachman with the view of making him a subscribing witness to the will. Mrs. Nelson was not at home, and Miss Laura Nelson was not present, and does not appear to have even been aware of what was transpiring. The summons came from the room where the testator and Baker were alone together, and must have been directed by the testator's selection, or, at all events, with his assent; and when Keller came into the room it is quite certain that one of the two told him what he was wanted for. If it was Baker, as the witness testified, that was enough, for in doing so he plainly acted for the testator, with his assent, and in pursuance of his selection. The request to sign is sufficient if made by the person superintending the execution of the will, if in the hearing of the testator, and with his silent permission and approval. That was held in Doe v. Roe, 2 Barb. 205, and again in Peck v. Cary, 27 N. Y. 9, and Gilbert v. Knox, 52 N. Y. 128. Judge Nelson himself was a lawyer of eminence and ability, well knowing what was needed for the due execution of a will, and Baker was his partner, and fully competent to perform the duty which he undertook; and it is not a reasonable supposition that they neglected any essential

requirement. The accidental omission in the attestation might easily occur, and that it escaped the notice of both serves only to indicate the fatality which seems to attend the wills of distinguished lawyers. The proof of Judge Nelson's declarations and acts occurring after the execution of the will was admissible to show his knowledge of the testamentary character of the instrument, and to dispel any possible claim of mistake or imposition. Similar evidence has often been re ceived, and we can see no ground on which it should have been excluded. Taking all the facts together, they warranted the findings of the surrogate, and leave no doubt in our own minds that the will was properly executed. The judgment should be af firmed, with costs. All concur. affirmed.

PEOPLE v. EWER.

(Court of Appeals of New York.

1894.)

Judgment

Jan. 30,

CONSTITUTIONAL LAW-POLICE POWER-PROHIBIT ING PUBLIC EXHIBITION of Child.

Pen. Code, § 292, making it a misde meanor for the parent of a female child under the age of 14 years to procure or consent to the employment or exhibition of the child as a dancer, is a valid police regulation, and is not unconstitutional as depriving the parent of the right to the custody and service of the child, and the child of the right to follow a lawful oc cupation. 24 N. Y. Supp. 500, affirmed.

Appeal from supreme court, general term, first department.

Charlotte Ewer was arrested for a violation of Pen. Code, § 292, and obtained writs of habeas corpus and certiorari. From an or der of the general term (24 N. Y. Supp. 500) affirming orders of the special term (19 N. Y. Supp. 933) dismissing the writs, said Ewer appeals. Affirmed.

Charlotte Ewer was arrested upon a police magistrate's warrant, charged with a misdemeanor in violating section 292 of the Penal Code by exhibiting her child, Mildred Ewer, as a dancer at the Broadway Theater in New York city. The examination before the magistrate sustained the charge, and showed that she was of the age of seven years, and went by the stage name of "La Regaloncita;" that she was clad in the usual style of the ballet dancer, in a low-necked, sleeveless, and short dress, and wore purple tights; that she danced upon the stage to the music of an orchestra, elevating her legs, moving upon her toes, and posturing with her figure. Her mother, being held upon the charge, sued out writs of habeas corpus and certiorari, to which the magistrate made return of his proceedings, etc. The prisoner demurred to the return; alleging that there were no sufficient grounds for holding her, and that the statute under which she was arrested was unconstitutional. The provisions of the Code under which this arrest was made read that "a person who exhibits

or in a theatrical exhibition * or in any exhibition dangerous or injurious to the life, limb, health or morals of the child • is guilty of a misdemeanor." At the special term the writs were dismissed, and the prisoner was remanded. The order of that court was affirmed at the general term, and the defendant has appealed to this court.

A. J. Dittenhoefer and David Gerber, for appellant. De Lancey Nicoll, Dist. Atty., (Elbridge T. Gerry, of counsel,) for the People.

GRAY, J. The question we shall determine upon this appeal is whether the statute under which the appellant was arrested violates any just and personal rights secured to her by the constitution of the state. If it is such an interference with the legal relation of parent and child as exceeds the limits within which the legislature, exercising the sovereign power of the state, may regulate and control that relation, then it is the duty of the courts to declare its unconstitutionality; but, if it is within a proper and legitimate exercise of legislatve functions, the courts may not interfere. This question falls within those which are classified under the head of the police power of the state. The extent of the exercise of that power, with which the legislature is invested, and which it has so freely exerted in many directions, within constitutional limits, is a matter resting in discretion, to be guided by the wisdom of the people's representatives. It is difficult, if not impossible, to define the police power of a state, or, under recent judicial decisions, to say where the constitutional boundaries limiting its exercise are to be fixed. It is a power essential to be conceded to the state, in the interest, and for the welfare, of its citizens. We may say of it that when its operation is in the direction of so regulating a use of private property, or of so restraining personal action, as manifestly to secure or to tend to the comfort, prosperity, or protection of the community, no constitutional guaranty is violated, and the legislative authority is not transcended. But the legislation must have some relation to these ends; for, to quote the expressions of Mr. Justice Field in the Slaughterhouse Cases, 16 Wall. 36, "under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded." In People v. King, 110 N. Y. 418, 18 N. E. 245, it was well observed by Judge Andrews: "By means of this power the legislature exercises a supervision over matters affecting the common weal. * * It may be exerted whenever necessary to secure the peace, good or

der, health, morals, and general welfare of the community, and the propriety of its exercise, within constitutional limits, is purely a matter of legislative discretion, with which courts cannot interfere." The assumption of the exercise of this extraordinary and very necessary power has been the subject of severe criticism in the opinions of judges, when it has been sought thereby to regulate and control in the interest of the public the conduct of corporate or individual business transactions. Munn v. State of Illinois, 94 U. S. 113, may be referred to as starting a current of authority in this country. But no such criticism can find just grounds for cav iling at legislation whose ends clearly tend to promote the health or moral well-being of the members of society. To that class of legislation this statute belongs. By preventing the exhibition of children of tender and immature age upon the theatrical or other public stage, the legislature is exercising that right of supervision and control over the child which in every civilized state inheres in the government, and which nothing in the legal relations of parent and child should be deemed to forbid. The proposition is indisputable that the custody of the child by the parent is within legislative regulation. The parent, by natural law, is entitled to the custody and care of the child, and, as its natural guardian, is held to the performance of certain duties. To society, organized as a state, it is a matter of paramount interest that the child shall be cared for, and that the duties of support and education be performed by the parent or guardian, in order that the child shall become a healthful and useful member of the community. It has been well remarked that, the better organized and trained the race, the better it is prepared for holding its own. Hence it is that laws are enacted looking to the compulsory education by parents of their churen, and to their punishment for cruel treatment, and which limit and regulate the employment of children in the factory and the workshop, to prevent injury from excessive labor. It is not, and cannot be, disputed that the interest which the state has in the physical, moral, and intellectual well-being of its members warrants the implication and the exercise of every just power which will result in preparing the child, in future life, to support itself, to serve the state, and, in all the relations and duties of adult life, to perform well and capably its part.

In the brief of the able counsel who appears for the people, and whose earnest efforts in behalf of the cause of humanity and of mercy have so distinguished him, the discussion of the subject upon these lines is quite full and interesting. Indeed, the learned counsel for the appellant does not, in the main, contest the right and the duty of the state to protect, and to promote by adequate legislation, the health and morals of its citizens, but bases his arguments here upon the

that if the court could say that this legislation was an arbitrary exercise of the legislative power, depriving the parent of a right to a legitimate use of his child's services,-that, while ostensibly for the promotion of the well-being of children, in reality it strikes at an inalienable right or at the personal liberty of the citizen, and but remotely concerned the interests of the community,-it would be its duty to so pronounce, and to declare its invalidity. But this legislation has no such destructive effect or tendency. It does not deprive the parent of the child's custody, nor does it abridge any just rights. It interferes to prevent the public exhibition of children, under a certain age, in spectacles or performances which, by reason of the place or hour, of the nature of the acts demanded of the child performer, and of the surroundings and circumstances of the exhibition, are deemed by the legislature prejudicial to the physical, mental, or moral well-being of the child, and hence to the interests of the state itself. Take the facts of this case, and they seem sufficiently to warrant the interference of the law. It is not necessary to reason The scanty dress of the ballet dancer, the pirouetting and the various other described movements with the limbs, and the vocal efforts cannot be said to be without possible prejudice to the physical condition of the child, while in the glare of the footlights, the tinsel surroundings, and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence as to unfit it for the stern realities and exactions of later life. The statute is not to be construed as applying only when the exhibition offends against morals or decency, or endangers life or limb, by what is required of the child actor. Its application is to all public exhibitions or shows. That any and all such shall be deemed prejudicial to the interests of the child, and contrary to the policy of the state to permit, was for the legislature to consider and say.

upon them.

The right to personal liberty is not infringed upon because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exceptionally endowed. The inalienable right of the child or adult to pursue a trade is indisputable; but it must be not only one which is lawful, but which, as to the child of immature years, the state or sovereign, as parens patriae, recognizes as proper and safe. It is not the strict moralist's view, dictated by prejudice, but the view from the standpoint of a member of the body politic, which ranges the judgment in support of legislative Interference to restrain the parent from per

mitting an employment of the child under circumstances deemed unsuited to its proper mental, moral, or physical development. In the judgment of the legislature it was deemed as unsuitable for the youth of the community, under a certain age, to dance or to perform in public exhibitions in the ways mentioned as it was deemed unsuitable for them to work in the factory, except under certain limitations as to age, hours, etc.

We have not overlooked certain cases referred to by the appellant's counsel to show the invalidity of this legislation as an exercise of the police power of the state, or to show a violation of constitutional rights. They establish that the legislature has no right, under the guise of protecting health or morals, to enact laws which, bearing but re motely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation. Such were In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377, 2 N. E. 29; People v. Gillson, 109 N. Y. 389, 17 N. E. 343; People v. Rosenberg, 138 N. Y. 410, 34 N. E. 285. We are referred to some cases in Illinois, but they are neither applicable nor authoritative upon the question before us.

Further discussion is unnecessary. We might have remained satisfied with the able and clear exposition of his views by the learned justice at the special term had not the range taken by the arguments of counsel seemed to call for a brief expression by us of our view of the principle of state interference. The order should be affirmed. All concur. Order affirmed.

HAWVER v. BELL et al.

(Court of Appeals of New York. Jan. 30, 1894.)

REVIEW ON APPEAL CONFLICTING EVIDENCE CONVERSION-MEASURE OF DAMAGES-EVIDENCE. 1. A verdict will not be disturbed because of conflicting evidence.

2. In an action for conversion of chattels, it is competent to show what they cost when new, even though they were deteriorated from usage at the time of their conversion, as the price paid for them when new is some evidence of their value.

3. Defendants cannot, on appeal from & judgment for plaintiff, claim that there was not sufficient evidence to sustain the verdict. or that the damages awarded were excessive, where there are no exceptions presenting such matters for consideration as questions of law. Appeal from supreme court, general term, third department.

Action by Mary Ann Hawver against Edmund R. Bell and Walter L. Bell, executors of Calvin S. Bell, deceased, for conversion of chattels by Calvin S. Bell. From a judgment of the general term (19 N. Y. Supp 612) affirming a judgment entered on the verdict of a jury, and an order denying a motion for new trial on the minutes of the trial judge, defendants appeal. Affirmed.

John T. Shaw, for appellants. T. F. Bush, for respondent.

EARL, J. The present defendants have been substituted in the place of their testator, against whom the action was originally commenced. The action was brought to recover the value of certain personal property taken and sold by the testator, among which was an engine, thresher, and cleaner. The testator took and sold the property, claiming the right to do so by virtue of a chattel mortgage. The plaintiff claimed that there had been no default in the mortgage, and that the note to secure which it was given was usurious and void. Upon the question of usury there was conflicting evidence. The testator claimed the right to seize and sell the property under what is called the "safety clause" in the mortgage, and there was conflicting evidence as to his right to proceed under that clause. The verdict of the jury in favor of the plaintiff settles the matters thus depending upon conflicting evidence.

The

It appeared upon the trial that the engine, thresher, and cleaner had been in the ownership and use of the plaintiff for several years before the seizure and sale by the testator, and that they had become considerably deteriorated by age and use. plaintiff was permitted to prove, against the objection of the defendants, what these articles cost when new, and they now claim that such evidence was improperly received. The trial judge, upon the trial, and in his charge to the jury, did not misapprehend the true rule of damages, and that is that the plaintiff was entitled to recover, if she proved her cause of action, the value of the property at the time of its conversion, with interest. The evidence was objected to “as not establishing a proper rule of damages." The judge overruled the objection, saying that "it was some evidence of value," and he did not at any stage of the trial rule that it furnished the measure or rule of damages. price paid for these articles when new furnished some evidence of their value at the time of their conversion, their age and condition being described, cannot be doubted.

That the

The defendants are not now in a position to claim that there was not sufficient evidence of value to sustain the verdict, or that the damages awarded are excessive, because there are no exceptions presenting these matters for our consideration as questions of law. There was no motion to nonsuit the plaintiff. The true rule of damages was laid down in the charge of the judge. The counsel for the defendants requested the judge to charge the jury "that the purchase price of the engine and thresher is not the true rule of damages, or the value of it," and he responded: "No, it is not, because there is evidence that it has been deteriorated in value. It is only some evidence upon its value as a new and perfect machine." There was no error here, and the law was correct

ly stated. To enable the defendants to get the benefit of the point their counsel now urges, they should, upon the trial, have moved for a nonsuit upon the ground that there was not adequate evidence of damages, or they should have raised the question by requesting the judge to charge the jury that the evidence of the purchase price was not sufficient, standing alone, to show the value of the property at the time of its conversion, or they should have made some other request which presented the point to the mind of the judge.

We have considered the other exceptions to which our attention has been called, and they are so clearly unfounded that they need no further attention now. The judgment should be affirmed, with costs. All concur. Judgment affirmed.

1. An order for the service of summons by publication directed publication for six weeks in two papers. The publication was completed in one, but was discontinued in the other after five weeks, by a mistake, which was not discovered for more than 30 days after attachment granted; and two weeks elapsed between the discontinuance of the publication, and its renewal and continuance for six weeks. Held, that the publication was wholly ineffectual, when the renewed publication was not commenced within 30 days after the attachment was granted, as required by Code Civil Proc. § 638.

2. The attaching plaintiff, though without fault, cannot be relieved because of the newspaper's mistake.

3. Where a summons is served on one of several defendants in an action on a joint liability, an attachment which issues in such action may be executed by a seizure of joint property, and cannot be vacated because no service was made on, or publication commenced against, the other defendants; and joint property so attached may be sold on execution if plaintiff obtains judgment on the joint liability. Appeal from supreme court, general term, fourth department.

Action by Susan B. Yerkes against Charles McFadden, Sr., and John W. McFadden, impleaded with Charles McFadden, Jr. From an order of the general term (22 N. Y. Supp. 1119, mem.) reversing an order of the special term, and vacating an attachment as to defendants Charles McFadden, Sr., and John W. McFadden, plaintiff appeals. Reversed.

John M. Roe, for appellant. O. P. Hurd, for respondents.

ANDREWS, C. J. It became the duty of the plaintiff either to make personal service of the summons upon the defendants within 30 days after the granting of the attachment, or else, before the expiration of