App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. inherit in connection with one Where the husband who would ute. Those cases which speak of the right of the next of kin are those only in which the next of kin of the persons named in the statute. otherwise be entitled to the entire surplus has waived his claims, either before or after the death of the wife, the statute is, I think, so far personal as to preclude the next of kin from raising the question. With this interpretation of the rule as stated in Amherst College v. Ritch, no antagonism is found to the rule stated in Harris v. American Bible Society (2 Abb. Ct. App. Dec. 316). I am of opinion, therefore, that the release of the husband contained in the ante-nuptial agreement was effectual to waive the provision of the statute as to the residuary legatees, and that the property should pass as specified in the will. The decree of the surrogate should, therefore, be reversed, with one bill of costs to the residuary legatees, one to the special guardian and one to the next of kin, payable out of the fund. All concurred. Decree reversed and matter remitted to the surrogate, with direction to proceed in accordance with opinion, with one bill of costs to the residuary legatees, one bill of costs to the special guardian and one to the next of kin, payable out of the fund. N. ARCHIBALD SHAW, JR., as Administrator, etc., of MARY E. FOWLKS, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, as Lessee of THE BOSTON AND ALBANY RAILROAD, Appellant. Village ordinance ·when passed under subdivision 4 of section 14 of chapter 458 of the Laws of 1870, it must be published as required by subdivision 25 of section 57 of chapter 426 of the Laws of 1847 — the record thereof, how put in evidence. An ordinance of the village of Chatham, which was apparently incorporated under the Village Law of 1847 (Laws of 1847, chap. 426 and its amendments), passed under subdivision 4 of section 14 of chapter 458 of the Laws of 1870, is not effective unless it appears that the requirements of subdivision 25 of section 57 of the Village Law of 1847, in respect to the publishing and posting of village ordinances, have been complied with. THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. Quare, whether the record of a village ordinance may be read in evidence from an ordinance book into which it has been copied, unless such record is properly certified and is accompanied by the requisite proof of publication and posting. APPEAL by the defendant, The New York Central and Hudson River Railroad Company, as lessee of the Boston and Albany Railroad, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 27th day of October, 1902, upon the verdict of a jury for $4,000, and also from an order entered in said clerk's office on the 24th day of October, 1902, denying the defendant's motion for a new trial made upon the minutes. A. B. Gardenier, for the appellant. George K. Daley, for the respondent. CHASE, J.: The plaintiff's intestate was killed in a collision at a railroad crossing in the village of Chatham. This action is brought by her administrator to recover damages for the benefit of her next of kin by reason of the alleged fact that her death was caused by the wrongful act, neglect or default of the defendant. At the time of the collision the defendant's train was running at a speed of between twenty-five and forty miles per hour. The question of the defendant's negligence and of the intestate's contributory negligence were the two important questions litigated on the trial. There was received in evidence an alleged ordinance of the village of Chatham relating to the speed at which cars should be run over street crossings in said village. One D., the village clerk of said village, was called and the record relating to such ordinance is as follows: "I have the book of ordinances of the village of Chatham. Q. Will you turn to the ordinances of such village with reference to the speed of railroad cars ? A. Yes, sir. Q. What do you find? [Objection if witness is about to read from the minutes. Objection is interposed to any proof of the record in the hands of the witness, or what purports to be a record, as incompetent, there being no proof of the incorporation of the village and no proof that any memorandum or record contained in the book has been authorized or is a valid record; there is no App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. proof that there is any authority of any officer or set of officers for publishing the same. Objection overruled. Defendant excepted.] Plaintiff offered the ordinance in evidence to which the same objection was made, and also that proof upon the admission of the ordinance is not such record as is authorized by the Code; further that there is no proof whether this is the original record or that the witness has knowledge of the enactment of the ordinance or the correctness of the record from which he proposes to read. [Overruled. Exception by defendant.] Q. This is the ordinance book of the village of Chatham? A. Yes, sir. Q. Read the ordinance. A. I find an ordinance of August 30, 1870, as follows: Section 2. No person shall run or cause to be run, or assist in running any railroad engine, car or train of cars, or part of a train of cars on or over any street or crossing in said village at a greater rate of speed than six miles an hour. Any person violating this ordinance shall be subject to a penalty of $5 for each offense." The court did not refer to the village ordinance in the charge, but immediately following the charge counsel for the appellant inade two requests of the court to charge which with the rulings thereon are as follows: "Mr. Gardenier: I think this is already covered, but for greater certainty I will ask you to charge that the jury in determining any question of fact in this action, including that of contributory negligence on the part of the deceased or negligence on the part of the defendant, cannot consider or take into account. as any part of the evidence upon this trial the alleged or pretended ordinance of the village of Chatham relating to the speed of trains therein, upon the ground that there is no evidence that the said alleged and pretended ordinance has ever taken effect or become operative upon or against the defendant, there being no evidence tending to show that the same ever was posted, published, or promulgated either under the village act of 1847 or the act of 1897 or under any statute relating to said village; and upon the further ground that an ordinance of a village is not a statute of which judicial notice can be taken. Court: Oh, I decline to charge all that you embrace in that proposition. [Defendant excepted.] "Mr. Gardenier: Also that the jury cannot find from the evidence taken upon this trial that the deceased had any knowledge or notice of such alleged or pretended ordinance of the village of Chatham, THIRD DEPARTMENT, JUNE TERM, 1903. [Vol. 85. there being no proof that the said ordinance was ever posted, published or promulgated according to the requirement of the village law of 1847 or the act of 1897, or any act relating to said village, and no evidence that the same ever took effect as an ordinance. Court: I don't think it is essential that the deceased should have had notice of the ordinance to make it operative. I decline to charge all of that. [Defendant excepted.]" No evidence was offered in regard to the incorporation of the village of Chatham, but it is claimed by the respondent that the court should take judicial notice of chapter 458 of the Laws of 1870 relating thereto. By reference to said act it appears in the 1st section thereof that the village of Chatham had been theretofore incorporated, and that officers had been theretofore elected and were then holding office. No other special act of the Legislature appears to have been passed relating to said village, and it may be assumed from the provisions of said act of 1870, and the fact that said village had not been incorporated by special act, that it had theretofore been incorporated under the general acts relating to villages. (Laws of 1847, chap. 426, and the acts amendatory thereof.) Respondent claims that the village of Chatham was authorized to pass the ordinance in question by subdivision 4 of section 14 of said act of 1870. Said section provides: "In addition to the powers now conferred by law, the trustees of said village shall have power and it shall be lawful for them," and follows with ten subdivisions specifying certain things which it shall be lawful for the trustees to do. The said 4th subdivision provides: "To limit the speed of running railroad cars over the street crossings in said village * * * " The "powers now conferred by law" are the powers conferred by sections 57 and 58 of said Village Law of 1847 and the amendments thereto. By subdivision 25 of section 57 of said Village Law it is provided: "To make such by-laws not inconsistent with the laws of this State or of the United States, * * and no such by-law shall take effect until two days after it shall have been published in a newspaper printed in such village, if there be one, and if there be none, until four days after a printed copy thereof shall have been posted in ten of the most public places in such village, of which publication or posting an affidavit shall be made and filed with the village clerk within six days after it shall take place." App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. An ordinance passed under said act of 1870 must be published or posted as provided by the said Village Law of 1847. No evidence was offered to show that the ordinance in question was ever published or posted as required by law, and so far as appears from the record it never took effect. The jury, in determining the question at issue, had a right to take into account said ordinance if it had been duly passed and promulgated. (Grinnell v. Taylor, 85 Hun, 85; Skelton v. Larkin, 82 id. 388.) As there is no sufficient evidence that the ordinance had been promulgated, the trial court was in error in allowing the same to be considered by the jury. The proceedings of a board of trustees of a village can be shown from the original record or minutes thereof, but it may be doubtful whether they can be read from an ordinance book into which they are in part copied unless there is special provision therefor, or they are therein properly certified and accompanied by the prescribed proof of publication or posting. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except CHESTER, J., not sitting. Judgment and order reversed and new trial granted, with costs to appellant to abide event. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDWARD R. BUELL, Appellant. Pleading action to recover a penalty, for selling impure milk, under the Agricultural Law - when a single cause of action only is alleged, authorizing the recovery of but one penalty. The complaint in an action brought by the People of the State of New York alleged: "Upon information and belief that the defendant on or about the 15th day of October, 1901, at Miller's Station, in the county of Delaware, N. Y., did expose for sale, offer for sale, and sell, a quantity of impure and adulterated milk, to wit, five cans of milk, in violation of sections 20, 22 and 23 of Chapter 338 of the Laws of 1894* and the amendments thereto." The complaint demanded judgment against the defendant for the sum of $500. |