portionment made by the Constitution of 1895. They will be considered in the order in which they have been argued before us. order of the Supreme Court was in April, 1907, reversed and the apportionment under review declared invalid. Matter of Sherrill v. O'Brien, 188 N. Y. 185, 81 N. E. 124, 117 Am. St. Rep. 841. Thereupon, at an extraordinary session of the Legislature held in that year, the present apportionment was enacted. Under it have been held the general elections of 1907, 1908, 1909, and 1910, during which period the petitioners have taken no steps to have the validity of that apportionment reviewed. There are few things in the world 1. The first of these proceedings was commenced by an order to show cause granted by a Special Term of the Supreme Court of the county of New York on November 7, 1910. It was founded on a petition made by the appellants on behalf of themselves and all other citizens of the state, which alleged that the new apportionment was in violation of the constitutional provision on that subject for reasons stated in detail. The relief ask-in which stability and order are more reqed was that the present apportionment of the Senate and Assembly districts be reviewed and adjudged unconstitutional. On the presentation of the petition the court made an order addressed to the Attorney General, to the Governor of the state, the President of the Senate and the Speaker of the House, directing them to show cause why the prayer of the petition should not be granted. The order was served on the officers named, who appeared on the return day of the order and objected to the jurisdiction of the court. This objection was overruled and an order was entered to that effect. [1] On appeal the Appellate Division reversed the order and dismissed the proceedings on the ground that there was no warrant in law for the maintenance of such a proceeding which was held to be wholly extrajudicial. We entertain the same view and concur with the opinion of Miller, J., in the court below. While the Legislature might under the Constitution have authorized such a proceeding as the one before us, it had not until yesterday enacted any statute on the subject. That statute cannot be retroactive to the extent of rendering the previous decisions of the Appellate Division erroneous. [2] We are of the further opinion that had such proceeding been maintainable, the petition was properly denied on the ground of laches. Apportionments are directed by the Constitution to be made every 10 years. They are made subject to review by the Supreme Court at the suit of any citizen under such regulations as the Legislature may pre scribe, and it is expressly directed that "any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same." Const. art. 3, § 5. After the census of 1905 the Legislature at its session in 1906 passed an apportionment act. Chapter 431. The validity of that act was attacked by an application for a mandamus to the Secretary of State to issue the election notices in accordance with the old apportionment on the ground that the new apportionment was a nullity. This application was denied by the Supreme Court in both branches, and the election of 1906 was held under the apportionment act of that uisite than in government. It could not have been the constitutional intent that at any time during the decennial period for which an apportionment is to continue-even up to the last moment-it should be subject to attack. This is made plain by the constitutional requirement that every court shall immediately convene and dispose of a litigation involving an apportionment. It would be unreasonable that the utmost speed should be required of the courts in disposing of such a litigation, and yet the litigant be not held to any degree of promptness in instituting it. The order appealed from should be affirmed, with costs. 2. The second of these litigations is a taxpayer's action brought to enjoin the defendants, constituting the board of elections of the city of New York, from holding the primaries of the respective political parties and the general elections in conformity with the apportionment of 1907. The application for an injunction was denied by both branches of the Supreme Court, and the appeal is taken to this court by permission granted by the Appellate Division, which has certified three questions, as follows: "(1) Does chapter 727 of the Laws of 1907 violate any of the provisions of the Constitution of the state of New York? "(2) Was the motion of the plaintiffs properly denied as matter of law? "(3) Can a taxpayer maintain an action to enjoin the board of elections of the city of New York from expending the money of said city necessary to hold a primary and general election for the year 1911 in the several Senate and Assembly districts in said city, as organized under chapter 727, Laws of 1907, on the ground that said act is unconstitutional?" [3] The action was brought after the adverse decision of the Appellate Division already considered. In disposing of it we are not favored with the views of the Appellate Division, for no opinion was there written. In our view of the case it is not necessary to its determination to answer the question of the constitutionality of the statute. The application for an injunction was properly denied on several grounds: (1) For laches on the part of the plaintiffs-a subject already considered in the discussion of the first proceeding. (2) We are of opinion that * * The intention of the taxpayers' acts is doubtless to afford the taxpayer redress for the waste, fraud, and peculations of public officers, but it was never intended thereby to confer on courts of equity jurisdiction over a subject which has always been excluded from their cognizance. All attempts to so pervert taxpayers' suits should be discouraged. [4] At the time this action was brought defendants found an apportionment law that, whether valid or invalid, had been acquiesced in by the people of the state at four general elections. The plaintiffs, unless debarred by their laches, could have tested the validity of that apportionment by an application for a mandamus, as was done in Matter of Sherrill v. O'Brien, supra, Thus there was no justification for a resort to equity; there being a complete remedy at law. Until that remedy had been invoked and the apportionment declared invalid, the board of elections was justified in holding the election in accordance with the last apportionment act. The orders of the Appellate Division and Special Term should be affirmed, with costs, the second question should be answered in the affirmative, the third in the negative, and the first left unanswered. 51 of the general municipal law (Consol. People ex rel. Corscadden v. Haswell, 177 Laws 1909, c. 24), authorizes the mainte- N. Y. 499, 69 N. E. 1114, 66 L. R. A. 664. nance of this action. The first statute provides that an action may be maintained "to obtain a judgment, preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state * against any officer thereof, or any agent, commissioner, or other person, acting in its behalf." The second statute provides that "all officers, agents, commissioners and other persons acting, or who have acted, for or on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation." To bring the case within either statute the act sought to be enjoined should in some manner affect the estate, funds, or property rights of the municipality. The Code provision expressly limits the action to that purpose. The municipal law authorizes the maintenance of an action to prevent "any illegal official act on the part of any such officers, agents, commissioners or other persons." But who are the officers whose illegal acts may be re- [5] 3. The third appeal is from an affirmstrained? Only those "acting or who have ance by the Appellate Division of an order acted for or on behalf of" the municipal cor- denying the relator's application for a manporation. The defendants, the city board damus to the Secretary of State commandof elections, doubtless are local officers, but ing that officer to transmit to the several no relation of principal and agent, or of county clerks and boards of elections in the master and servant, exists between them and city of New York election notices in accordthe city. Maxmilian v. Mayor, etc., of N. ance with the apportionment contained in Y., 62 N. Y. 160, 20 Am. Rep. 468; Ham v. the state Constitution of 1895, and not with Mayor, etc., of N. Y., 70 N. Y. 459; N. Y. & that prescribed by the law of 1907. This Brooklyn Saw Mill & Lumber Co. v. City of proceeding was the proper one for the purBrooklyn, 71 N. Y. 580. They did not act pose sought to be accomplished, being the on behalf of the municipal corporation, but same as that adopted in Matter of Sherrill for the public in the control and direction | v. O'Brien, supra. We are thus brought to of the machinery of the general elections the merits of the application. of the state. As said by Chief Judge An- [6] The validity of the apportionment act drews in Rogers v. O'Brien, 153 N. Y. 357, of 1907 was impugned on two grounds only: 362, 47 N. E. 456, 457: "It is absurd to sup- First, that the noncontiguous counties of pose that the Legislature by the statute in- Richmond and Rockland had been united to tended to draw into the preventive jurisdic- form a senatorial district; second, that the tion in equity, at the instance of any tax- apportionment act was passed at an extraorpayer, any proposed illegal official act, irre- dinary, instead of a regular, session of the spective of the fact whether the act sought Legislature. We consider the first objection to be restrained involves a waste of public disposed of by what has been said on the property or a violation of public rights, or subject in the Sherrill Case. The Constituany injury to the interests of the taxpayers, tion requires that each Senate district shall as such." It is not alleged in the complaint contain as near as may be an equal number that elections, whether primary or general, of inhabitants, that it shall be as compact will cost any greater sum under the new as practicable and consist of contiguous terriapportionment than under the old apportion- tory, and that no county shall be divided in ment. It is the settled law of this state, as the formation of a Senate district, except well as of the United States, that equity has to make two or more Senate districts wholly no jurisdiction over contests for public office. in such county. In the case of Richmond It is true that cases can be found in which county the constitutional requirements are this rule has been violated, but the over- irreconcilable, and it was impossible to com er, which is equally great at either session. If our interpretation of the Constitution is correct, the power vested in and imposed upon the Legislature to pass a constitutional apportionment bill was a continuing one until exercised and discharged, and the Legislature at any time after the time prescribed by the Constitution and at any character of session might discharge the duty which was still undischarged. The order appealed from should be af firmed, with costs. to Richmond are New York and Kings. Each | less possibly by the exercise of the veto powof these counties contained more than one senatorial district. To combine Richmond, therefore, with parts of either of these counties, would violate the requirement of the Constitution last mentioned. If combined with any other county, it would violate the rule as to contiguity. To constitute Richmond by itself a senatorial district would violate the constitutional requirement as to equality of population-the population of that county being only 72,000, about one-half the requisite population if the state were divided into exactly equal senatorial districts, regardless of the county or municipal lines. The union of Richmond and Rockland counties complies as nearly with the letter of the Constitution as is physically possible, and probably complies nearer with the spirit of the Constitution than any other that could be suggested. Indeed, in the Constitution itself Richmond county is treated as an exception; for by that instrument it was joined to the noncontiguous county of Suffolk to form a senatorial district. [7] The objection that the apportionment was made at an extraordinary session of the Legislature is not well founded. As to apportionments the Constitution provides: "The said districts shall be so altered by the Legislature at the first regular session after the return of every enumeration." Article 3, 4. The question is whether the provision as to the regular session is a qualification as to the character of the session at which an apportionment bill can be enacted, or whether it is merely part of the definition of the time or period at which the duty is imposed on the Legislature to make a new apportionment. We think it is clearly the latter. "First regular" merely prescribes when the Legislature is first empowered to alter the districts for legislative representation. HAIGHT, VANN, WERNER, HISCOCK, (202 N. Y. 476.) DREYER v. REISMAN et al. A holographic will provided that, after all testator's lawful debts were paid, "he gave, dedaughters named, share and share alike, the vised and bequeathed unto his living son and same to be equal divided between themselves," and then provided that all real estate, if any owned by him, that could not be sold at a fair market price, should be sold at public auction. Held, that the will was void for failure to mention, describe, or identify the subject of the intended gift or devise, under the rule that courts has in fact been made, so as to import into it have no power to construct a will where none new provisions designed to create a testamentary disposition which is neither expressed nor necessarily to be implied. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 130.*] Appeal from Supreme Court, Appellate DIvision, Second Department. Action by John H. Dreyer against Herman Reisman and others. From an order of the Appellate Division (136 App. Div. 796, 121 N. Y. Supp. 918) affirming a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered. Nicholas Dietz, for appellant. Béla D. Eisler, for respondents. We think the suggestion that the Legislature at an extraordinary session would be under the domination of the Governor and thus be induced to pass an unfair statute, and that the constitutional provisions were intended to guard against such an evil, is wholly fanciful. Such a thought might occur to a recluse whose knowledge of the WERNER, J. This is an action in parworld is exclusively gathered from the books tition, and the plaintiff's right to maintain in his library, but would not be considered it depends upon the question whether one seriously by any one whose familiarity with Joseph H. Hasselbrook, who died seised of government was acquired by participation in the real property sought to be partitioned, public affairs. The Governor would have left a valid will disposing of the same, or no personal interest in an apportionment, whether he died intestate. If Hasselbrook and, if he and the Legislature were in ac- died intestate, then the plaintiff, as the only cord, he would have no reason for resorting child of Hasselbrook's deceased daughter, is to an extraordinary session. On the other entitled to an undivided one-fourth part of hand, no one can imagine that any Governor the real property in suit; and if, on the could force a hostile Legislature to enact an contrary, Hasselbrook left a valid will which apportionment bill unfair to the party of disposed of this real property, it is conceded the legislative majority either at a regular that he devised it all to his own three sursession or at an extraordinary session, un-viving children. A short statement of the facts disclosed by the record will show how | Pond v. Bergh, 10 Paige, 140. Courts have the question arises. no power, however, to construct a will where John H. Hasselbrook died in 1905 in the none has in fact been made, or to import borough of Brooklyn, city of New York, into a will new provisions which are deleaving an estate consisting of some money signed to create a testamentary disposition on deposit in a savings bank and two par- which is neither expressed nor necessarily to cels of land known as Nos. 60 and 62 Frank- be implied. Wager v. Wager, 96 N. Y. 164, lin street in that borough. He left a writ- 172. The will before us, viewed in the light ing purporting to be his last will and testa- of these simple rules is fatally defective in a ment, evidently holographic, in which he di vital point, for it fails to mention, much less rected: "First. After all my lawful debts to identify, any gift, devise, or legacy. The are paid, all funeral and testamentary ex- testator doubtless intended to give his chilpenses, I give, devise and bequeath unto dren something, else he would not have atmy living son and daughters Charles Hassel- tempted to make a will. When we pass that brook, Martha Ellen Nordbruch and Senie point we enter the realm of surmise, conMeyer, share and share alike, the same to jecture, and speculation. It is argued that be equal divided between themselves. Sec- it must have been his intention to leave ond. All real Estat if any owned by me and them all his property, since they were the the same canot be sold at a fair market natural objects of his bounty, and that this price then same sall be sold at public oc- claim is strongly supported by the testator's tion." The careful reader of these material direction that all real estate owned by him provisions of this instrument will at once shall be sold at public auction in case it perceive the question which they present. cannot be sold at a fair market price. This What did the intending testator bequeath or argument, so far from being controlling, is devise? There is no mention or description not even convincing, for the direction to sell of property except in the second paragraph at auction is in no wise inconsistent with which contains the direction for a sale of a devise of only a part of the testator's the real estate. The children of Hassel-real estate. A much more cogent suggestion brook, acting upon the assumption that the is found in the fact that the plaintiff is not instrument was a valid will under which they became seised of their father's estate, procured the paper to be admitted to probate as a will, and then sold to the defendant Reisman the premises described in the complaint. Later this action was brought, obviously upon the theory that Hasselbrook died intestate and that the plaintiff, his grandson, is entitled to an undivided one-fourth of the real estate above mentioned. The courts below have upheld the contention of the defendants, but we feel constrained to take a different view. We think the defendants Hasselbrook, Nordbruch, and Meyer took nothing as devisees, and that they must stand upon their rights as heirs at law of their father. This gives them each an undivided one-fourth of the estate, and the remaining one-fourth goes to the plaintiff. There mentioned in the will, and this circumstance may support the inference that there was no intention to make him a beneficiary; but this, after all, simply brings us back to the real question, which is whether the testator succeeded in making a devise to any one. That is a question which, in the nature of things, cannot often arise in the precise form in which it is presented here. are many cases in which the subject or the object of a gift have been imperfectly identified or described, but yet with sufficient certainty to support a gift by implication. Marsh v. Hague, 1 Edw. Ch. 174; Matter of Vowers, 113 N. Y. 569, 21 N. E. 690; Masterson v. Townshend, 123 N. Y. 458, 25 N. E. 928, 10 L. R. A. 816. We have found no case, however, to support a gift by implication where, as in this instance, there is no mention, description, or identification of the subject of the intended gift or devise. "To uphold a legacy by implication, the inference from the will of the intention must be such as to leave no hesitation in the mind of the court and to permit of no other reasonable inference." Bradhurst v. Field, 135 N. Y. 564, 568, 32 N. E. 113, 114. Another case states the rule even more forcibly. "To devise an estate by implication, there must In be such a strong probability of such an intention to give one, that the contrary cannot be supposed." Post v. Hover, 33 N. Y. 593, 599. Especially is this true when the The making of a will naturally imports an intention to make a testamentary disposition of property. But the intention is one thing and its execution is quite another thing. While courts have great latitude in giving effect to imperfectly expressed testamentary intentions, they have no right to make wills for testators. Although a will need not be framed in any particular or set phrase, it must at least be so plain as to furnish some tangible clue to the testator's intention. cases where the language of wills have been inexact or ambiguous, the courts have frequently transposed or inserted words or phrases, or even left out or inserted provi- implication sought to be drawn will result sions in order to effectuate an intent that was with reasonable certainty to be gathered from the context of the whole instru in the disinherison of an heir. Scott v. Guernsey, 48 N. Y. 106; Quinn v. Hardenbrook, 54 N. Y. 83; Lynes v. Townsend, 33 The judgment should be reversed, and a new trial ordered, with costs to abide the event. cur. Judgment reversed, etc. (202 N. Y. 415.) PEOPLE v. McGRATH. (Court of Appeals of New York. Oct. 3, 1911.) 1. CRIMINAL LAW (§ 1158*)-APPEAL TO COURT OF APPEALS-REVIEW. On a direct appeal to the Court of Appeals and a judgment of death, the Court of Appeals from a conviction of murder in the first degree may consider questions of both fact and law. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1158.*] 2. CRIMINAL LAW (§ 1931⁄2*)—Former Jeop ARDY. Code Cr. Proc. § 464, provides that the granting of a new trial places the parties in the same position as if no trial had been had; that all the testimony must be produced anew, and the former verdict cannot be referred to either in evidence or in argument. Section 544 declares that, when a new trial is ordered, it shall proceed in all respects as if no trial had been had. Held, that where a person charged with first-degree murder is convicted of murder in the second degree, and the verdict is set aside at his instance and in his real interest, he may be again placed on trial for first-degree murder. We think the case at bar is not to be dis- | the courts to do but to remit the parties tinguished in principle from the case of to their rights under the statutes relating to Brown v. Quintard, 177 N. Y. 75, 69 N. E. the devolution of estates by intestacy. 225. In that case the testator left him surviving four children and a son of a deceased child. He gave his residuary estate to his executors in trust for certain purposes and directed that, at the expiration of CULLEN, C. J., and GRAY, HAIGHT, the trust term, it be divided into four parts. | VANN, HISCOCK, and COLLIN, JJ., conOne of these parts was given to a son, subject to certain reductions to meet advancements which had been made to him, and the testator directed that such reductions were to be made "in justice to my other children." The will contained no provision for the disposition of the remaining three-fourths of the residuary estate. There the contention was made that under the circumstances there was plainly a devise by implication; but this court decided that the testator must be held to have died intestate as to the residuary estate, and that the inferences arising from the will were not so plain and cogent as to justify the disinherison of the grandson, who was an heir at law of the testator. In the later case of Leggett v. Stevens, 185 N. Y. 70, 77 N. E. 874, there was a will in which there was a disposition of a certain fund to the testator's wife and an attempt to dispose of what was left of the fund after her death. The direction was that it "shall be equally divided between my adopted daughter Helen S. Eldridge * if she is living, if she has children to go to them, if not to go to my nearest kin on my side." The testator left a son, as well as the adopted daughter. From other parts of the will it was evident that the testator intended that, upon his wife's death, this fund should be divided between this son and the adopted daughter. But the son was not mentioned in the clause disposing of the particular fund, and we held that, although the testator's intention might be gleaned from other portions of the will, we could not import into it the name of the son for the purpose of effectuating the testator's probable intention. In the case at bar we have no safe guide except the rule that an heir shall not be disinherited unless that intention is clearly expressed by a testator or is necessarily to be implied from the provisions of his will. conjecture that the failure of the testator to mention in his will the grandson who now claims a share of the estate is some indication of the testator's intent. That may be so, but after all it is mere conjecture. By the same rule we may surmise that the testator's omission to describe or identify any property as the subject of his attempted devise betokens his intention to give all of his estate to his own children, but that is also pure surmise. Whatever the intention of the testator may have been, he has failed to express it, and thus there is nothing for * We may see Criminal [Ed. Note.-For other cases, Law, Cent. Dig. §§ 366, 387, 389, 394; Dec. Dig. § 1932.*] 3. CRIMINAL LAW (§§ 951, 974*)-MOTION TO SET ASIDE VERDICT-NEW TRIAL-ARREST OF JUDGMENT. Under Code Cr. Proc. § 466, providing that a motion for new trial except on the ground of newly discovered evidence and except where the sentence is of death must be made before judgment, and section 469 declaring that a motion in arrest of judgment must be made before or at the time when the defendant is called for judgment, it is within the discretion of the trial judge to require such motions to be made immerefuse to reserve the same until the day of sendiately after the return of the verdict, and to tence; accused not being entitled to a postponement as a matter of right. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2349-2358, 2469-2478; Dec. Dig. §§ 951, 974.*] 4. CRIMINAL LAW (§ 959*)-VERDICT-MOTION TO SET ASIDE-WITHDRAWAL. A defendant who has moved to set aside a conviction has the legal right to withdraw the motion at any time before it is decided, and, even after it is decided, the court possesses discretionary power to permit him to withdraw it. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 959.*] 5. CRIMINAL LAW (§ 959*)-VERDICT-MOTION TO VACATE-WITHDRAWAL. der in the second degree, his counsel asked the A jury having convicted defendant of murcourt to reserve motions until the day of sen |