may now be in force. The decision of this court in the Rodgers Case having been previously rendered, the provision of the labor law with reference to the payment of the prevailing rate of wages was not in force at the time the bids were made or the contract executed. The fact that the commissioners gave notice that they would not attempt to enforce the labor law, which the court had held unconstitutional, and the further fact that the bid made by the company to whom was awarded the contract was not increased by reasons of the provisions of that law, indicate very clearly that the taxpayers of the city, or the abutting owners upon the street sought to be improved, have suffered nothing by reason of the provisions of the labor law to which attention was called in the specifications. Some of the provisions of the labor law are undoubtedly constitutional and are still in force, and consequently the provisions of the contract to the effect that the contractor will observe those provisions which may now be in force furnish no ground for just complaint. A contract, the consideration of which is based upon a statute which is unconstitutional, is doubtless void. But the contract in this case does not depend upon the labor law for its consideration. The provisions of that statute incorporated into the specifications are extraneous matters which have no material effect upon the main provisions of the contract, and cannot affect those provisions unless it may tend to increase the cost of the work. The contractors must be presumed to have known the law, and consequently to have known that the provision with reference to the rate of wages was unconstitutional. They are deemed, therefore, to have made their bid with this understanding, even independent of the notice which was given to them by the commissioners. Their bid was not in fact increased by reason of the labor law, as appears from the testimony to which we have alluded. We think, therefore, that the provisions of the labor law which have been held unconstitutional may be eliminated from the specifications, and that the contract may stand unimpaired and in full force and virtue. This was, in effect, held in the case of People ex rel. Rodgers v. Coler, supra. In that case the contractor sought a peremptory writ of mandamus to compel the comptroller to deliver to him a warrant on the chamberlain for the amount due him upon the contract, which was a contract in all essential features like the one now under consideration. The comptroller refused to deliver the warrant for the reason that the contractor had not complied with the provisions of the contract, which required him to pay the laborers employed by him the prevailing rate of wages. It was held that that provision of the labor law which had been incorporated into a contract was unconstitutional and void, but that the remaining part of the contract was in full

force, and the mandamus was ordered to be issued.

The provision of the specifications to the effect that laborers must be paid in cash, and not in store orders, is a requirement of the statutes which as yet has not been condemned in this state. The objection taken to this specification was that it is erroneous, unreasonable, illegal, and unauthorized. It is not unreasonable or illegal if authorized by a statute. Our attention has been called to no provision of this or any of the charters of the cities of this state which permits the treasurer or other financial officer of a municipal government to keep a store, and pay the employés of the city with orders on the store. It may be different, however, with contractors; but, as we have seen, this specification is required by the statute, and no objection was taken upon the ground that the statute was unconstitutional, and it is not the practice of this court to determine the constitutionality of statutes unless the question is distinctly raised by the record.

Finally, it is contended that the determination of the commissioners to pave with sheet asphalt and to curb with granite was made by the commission without an opportunity of the abutting property owners to be heard on such determination. It is true that in the notice given for a hearing it was stated that the commission had determined to pave with vitrified brick, and a hearing was had upon that notice. The hearing, however, covered all matters pertaining to the improvement, the kind of pavement to be used, as well as the kind of curbing. The statute makes provision for the hearing, and then concludes: "Said commission shall have the power to change, alter, add to or modify their first and original determination in reference to such improvement, and shall also have the power and right to change their opinion in reference to what portion of the whole expense should be paid by local assessment." Laws 1899, c. 550, § 4. the hearing it appears that the commission did, change their determination as to the character of the pavement it would adopt, and finally concluded to use sheet asphalt instead of brick.

After

Other questions have been discussed in the briefs of counsel, which we have considered, but they present no error that requires a reversal of the proceedings, and we do not deem it necessary to specifically refer to them.

In view of the fact that a large number of persons will become interested as taxpayers when an assessment is made to pay for the improvement contracted for, we have thought it wise to consider this case upon the merits. We are, however, of the opinion that the proceedings sought to be reviewed are neither judicial nor quasi judicial, and therefore, under the well-settled rules, are not subject to review by certiorari.

People v. Board of Sup'rs of Queens Co., 131 N. Y. 468, 30 N. E. 488; Id., 153 N. Y. 370, 374, 47 N. E. 790.

The appeal should therefore be dismissed, with costs.

PARKER, C. J., and GRAY, O'BRIEN, VANN, CULLEN, and WERNER, JJ., con

cur.

Appeal dismissed.

(172 N. Y. 165)

PEOPLE v. DOODY.

(Court of Appeals of New York. Oct. 7, 1902.) PERJURY-EVIDENCE-CORROBORATION

ADMISSIONS-ARGUMENT OF COUN-
SEL-REVIEW ON APPEAL.

1. Where, on trial for perjury, the proof of the crime is based on circumstantial evidence, the rule that, where one oath is placed against another, there must be two witnesses to prove the charge, or, if only one witness is produced, there must be independent corroborating circumstances, does not apply.

a

2. Where it is shown by competent proof that witness remembers certain material facts, and he swears falsely, willfully, and corruptly to the effect that he does not remember them, he is properly convicted of perjury.

3. On trial for perjury in falsely swearing that accused did not remember material facts involved in an issue on a trial, previous statements and admissions, by which defendant accused himself and others of conspiracy and commission of a crime, are admissible, where the sole purpose is to establish the fact that he did remember them, though they may tend to prove the commission by him of another offense.

4. In his argument before the jury in a criminal case the district attorney can discuss all the facts bearing upon the issue within the scope of the evidence, as freely as counsel in any case.

5. On trial for perjury, the question as to the truth or falsehood of the defense that at the time the defendant testified he did not remember certain material facts he was and had been suffering from paresis, which paralyzed his memory, is a question of fact for the jury, and their determination cannot be reviewed.

Appeal from supreme court, appellate division, Third department.

Daniel Doody was convicted of perjury, and from a judgment of the appellate division (76 N. Y. Supp. 606) affirming the same he appeals. Affirmed.

Jerry A. Wernberg, for appellant. John F. Clarke, Dist. Atty. (Martin W. Littleton, of counsel), for respondent.

O'BRIEN, J. The defendant was convicted of the crime of perjury, and the judgment of

conviction has been affirmed in the court below after what appears to be a thorough discussion of the questions involved. These questions, and the facts out of which they arise, are so fully set forth in the report of the case below that it is not necessary to repeat the statement here. 72 App. Div. 372, 76 N. Y. Supp. 606. It will be quite sufficient

3. See Criminal Law, vol. 14, Cent. Dig. § 825.

for every purpose of a review in this court to refer to the facts in a general way. The charge against the defendant which is set forth in the indictment is that he was called and sworn as a witness on the part of the people in a criminal case on the 19th day of December, 1899, and as such witness on the trial of the case he committed willful and corrupt perjury. The charge is based upon the testimony of the defendant as a witness in the case to the effect that he did not remember certain facts which were material and necessary for the people to prove upon the trial, and which it is alleged were well known to the defendant. The case is peculiar and exceptional in this respect: that the defendant was not charged with swearing falsely with respect to any affirmative or negative fact, but in swearing falsely that he knew nothing about them one way or the other, or, to use his own words when examined as a witness, that "he did not remember." The indictment alleges, and the record discloses in great detail, the transactions which finally culminated in the defendant's conviction. On the 14th day of March, 1898, he appeared before the grand jury of Kings county, and then and there testified to certain corrupt and criminal transactions on his part with certain public officers of the city of Brooklyn, whereby they were to award certain contracts for public work to persons to be named by him, and who were to act in his interest, and that he should divide with these officers certain fixed percentages of the money to be paid on these contracts by the city; that these corrupt and fraudulent agreements between the defendant and these city officers were completely executed. The contracts were awarded to the persons representing the defendant, and the officers were paid the share of the proceeds stipulated. It is not necessary to describe this corrupt arrangement with greater particularity. It is enough to say that the defendant, as he then stated to the grand jury, conspired with various city officers to plunder the city by means of fraudulent and corrupt contracts for public works in the city. It is important, however, to note the leading and fundamental feature of this transaction. It was impossible to carry the scheme into successful operation without the active aid and co-operation of the several city officers in the different departments. These departments, which were intended by the charter to be checks upon each other, were not only neutralized, but by means of bribery made active participants in the conspiracy to defraud the city. Each officer was to act a designated part in the consummation of a common scheme of fraud, and hence it was impossible to view the act of any one of them in the performance of his part without revealing the details of the conspiracy as a whole, since, if any one of the conspirators failed to act his part, the scheme could not be carried into effect. Therefore, in every investigation concerning the acts and conduct

of these several city officers, or the acts of any one of them, it became necessary to describe the whole transaction, in order to show what the real scope and purpose of the scheme was, and the legal responsibility of each and all of the actors therein. The whole scheme was fully revealed by the defendant in his testimony before the grand jury, and the result was that indictments were found against nine of these city officers, in which they were charged with various offenses.

On the 16th of May, 1898, the indictment against Robert W. Fielding, the deputy commissioner of the city works, was brought to trial, and the defendant was sworn as a witness by the prosecution, and again testified substantially to the same facts that he had testified to before the grand jury, and the trial resulted in a conviction. Subsequently, and on April 24, 1899, some of the other city officers were brought to trial, and again the defendant was the principal witness, and revealed all the details of the corrupt and fraudulent conspiracy already described. So far the defendant's attitude was that of an informer against his confederates in crime. But about the time of the last trial referred to an event occurred which seems to have had some influence upon his mind, and revealed a desire upon his part to change his position. The judgment of conviction against Fielding was reversed in this court, and a new trial granted, not upon the merits, but upon certain exceptions taken at the trial, which related entirely to the argument of the case before the jury by the district attorney. People v. Fielding, 158 N. Y. 542, 53 N. E. 497, 46 L. R. A. 641, 70 Am. St. Rep. 495. The defendant expressed great satisfaction at this result, and stated openly that he was sorry to see him convicted. On the 19th day of December, 1899, Fielding was again brought to trial. While the district attorney was preparing for the trial, he sent for and had an interview with the defendant, who all along had been his principal witness, and was to be his principal witness on the new trial.

The district attorney called the defendant's attention to an interview between them when the new trial was granted by this court, wherein the defendant expressed great delight at Fielding's success. He told the defendant that he knew he sympathized with the defense, but he would have to go upon the stand and testify to the facts, and proposed to refresh his memory by reading to him from printed records what he had sworn to on the several previous trials. The defendant said he would be glad to have the testimony read to him, and the district attorney then proceeded to read it, asking the defendant, after the reading, if it was correct, and as he then recollected it, to which the defendant replied that it was. Only two or three days after this interview the district attorney called the defendant as a witness to prove the facts upon the new trial to which he had testified on the former trial and be

fore the grand jury, as well as upon the trial of the other officers engaged in the conspiracy. He propounded to him questions in various forms intended to establish the facts charged in the indictment, and to which the defendant had so often testified before, and to all these questions the defendant answered that he did not remember, and in this case these answers have been made the basis of the charge of perjury of which the defendant has been convicted. The prosecution broke down, and the trial resulted in Fielding's acquittal.

In order to sustain the charge of willful and corrupt perjury against the defendant, the prosecution was bound to prove to the satisfaction of the jury that the defendant did remember that he had made the corrupt and fraudulent agreement with Fielding, whereby the latter was to award contracts to the persons designated by the defendant, and had paid to him his share of the proceeds, or the designated percentage of the contract price. It was competent for the people to sustain that issue by circumstantial evidence. The rule that prevails in cases of perjury, where one oath is placed against another, that there must be two witnesses to prove the charge, or, in case only one witness is produced, there must be independent corroborating circumstances, has no application to this case. There was no witness produced upon this trial who could swear that the defendant knew and remembered the facts which were the subject of inquiry. That issue had to be determined upon circumstantial proof. The question for the jury was whether it was true, as the defendant pretended, that in the space of a few days his mind had become a perfect blank with respect to the facts which the questions called for. He had testified to them all before the grand jury, and on the former trial and on other trials only a very brief time before he was examined. Moreover, they were all brought to his attention two or three days before he was called as a witness by the district attorney, when his former testimony was read to him from the records of these trials, and which he then pronounced correct. The jury could determine from all this whether the defendant told the truth when he said that he did not remember any of the facts embraced in the questions, or whether on that occasion his answers were willfully and corruptly false. It is hardly necessary to add that the verdict upon this question of fact is well sustained by the evidence. We have no doubt that a charge of perjury may be based upon the testimony of a witness upon a judicial trial who has sworn that he did not remember the facts material to the inquiry, if it be shown by competent proof that he did remember them. It may be difficult to prove the charge in many cases, but in this case there was no lack of proof. A witness may commit perjury by falsely stating what he thought, or what he did or did not remember, or what his opinion is, when these

corrupt perjury, and which occupies such a prominent place in the record, was that, at the time when the testimony was given now charged to be false, he was, and had for some time been, suffering from paresis, or some similar mental disease, that paralyzed his memory to such an extent that he could not be held responsible for his answers to the questions propounded to him upon the trial. It is not necessary in this court to say much in regard to that defense. It is quite sufficient to observe that it presented a question of fact that was fully and fairly tried before the jury. The evidence bearing upon it, consisting in part of the opinions of experts, was submitted to the jury, and the verdict must be regarded as the fair and deliberate judgment of the body which, under our system of jurisprudence, is organized to determine matters of fact, that it was without merit. Of course, it is possible that a person may be suddenly afflicted with a mental disease that completely prostrates all of his intellectual faculties, but whether that claim was true or false in this case was a question for the jury. When the evidence bearing upon that issue, direct and circumstantial, is fairly considered, the conclusion of the jury is not open to question.

We think that the record presents no question that would warrant this court in interfering with the judgment, and so it must be affirmed.

PARKER, C. J., and BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ.,

concur.

Judgment of conviction affirmed.

(172 N. Y. 244)

MT. MORRIS BANK v. TWENTY-THIRD
WARD BANK.

(Court of Appeals of New York. Oct. 7, 1902.)
NEW YORK CLEARING HOUSE-CONSTRUCTION
OF CONSTITUTION-CERTIFICATION
BY MISTAKE.

1. The constitution of the New York clearing house provides that all checks, drafts, or items in the exchanges reported as not good or missent shall be returned the same day to the bank from which they were received, and the said bank shall immediately refund to the bank returning the same the amount which it had received through the clearing house for said checks, drafts, or items so returned. A later provision requires, in case of failure of any bank to promptly refund to the bank holding paper returned as not good, that such bank report the fact to the manager of the clearing house, who shall thereafter, with the approval of the clearing house committee, readjust the clearing house statement, and declare the correct balance between such banks, provided such report be rendered before 1 o'clock of the same day. Held not to repeal the first provision, so that a bank charged by the clearing house with the amount of drafts or checks returned as not good can allow such charge to stand against it in the account of the clearing house, and seek reclamation directly from the bank required to refund such amount under the direct rules of the clearing house.

2. Where a bank by mistake certified at the request of another bank that a note payable at it was good, but, on discovering its error, on the same day notified the bank holding the note of the error, and requested it to erase the certification, and the latter bank, in spite of such notice, sent the note to the clearing house, where it was charged to the account of the clearing bank, an agent of the bank at which said note was payable, and the bank which had certified the note tendered a return of it immediately to the bank which had sent it to the clearing house and its clearing bank, and demanded repayment, it may sue to recover such amount from the bank receiving it from the clearing house, without an application to the manager of the clearing house for a resettlement of the accounts, its failure so to do not rendering the payment voluntary.

Appeal from supreme court, appellate division, First department.

Action by the Mt. Morris Bank against the Twenty-Third Ward Bank. From a judgment of the appellate division (70 N. Y. Supp. 78) affirming a judgment for plaintiff, defendant appeals. Affirmed.

George M. Mackellar and Clarence Lexow, for appellant. John A. Garver, for respondent.

CULLEN, J. The action is brought to recover money paid on a promissory note payable at the plaintiff's bank. When the note became due, at the request of the defendant it was certified by the plaintiff. This was done through a mistake as to the condition of the maker's account with the bank. Within a very short time, on the same day, the plaintiff discovered the error, and notified the defendant thereof, requesting it to erase the certification. Of this it is sufficient to say that the appellant concedes that the right of no party was affected by the certification, and that under the decision of this court in Bank v. Wetherald, 36 N. Y. 335, the plaintiff was not estopped from showing that it certified the check through mistake. The appellant makes no attack on the judgment based on such certification. Neither the plaintiff nor the defendant were directly members of the clearing house in the city of New York, but each cleared through another bank which was a member. The complaint alleges that both the parties to the action were, under their respective agreements for clearing, bound by the rules of the clearing house, and this allegation is expressly admitted by the answer. Notwithstanding the notice it had received from the plaintiff, the defendant deposited the note in its clearing bank, and thereafter the same was paid through the clearing house. On the same day the plaintiff tendered a return of the note both to the defendant and its clearing bank, and demanded repayment of its amount. This was refused, and thereupon the present action was brought.

While the appellant concedes that it acquired no right against the plaintiff by the certification of the note, it insists that the case is to be considered the same as if the note had not been certified, nor notice given by the