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FIFTH DEPARTMENT, JANUARY TERM, 1893.

yet it seems to us that the jury must have understood, from the rulings and instructions herein before quoted, that the defendant might be convicted of the crime of kidnapping if he failed to exercise a proper degree of foresight in the premises before instituting the proceedings for taking his daughter to the State Hospital; and, for aught that we can find in the record, the verdict may have been found solely on that ground.

The foregoing views necessarily lead to a reversal of the judgment appealed from, and to a new trial. But there is another and a more radical reason why the conviction of the defendant cannot be upheld. Upon the trial it was proved that the defendant acted throughout under the provisions of chapter 446 of the Laws of 1874, prescribing the steps necessary to be taken for the confinement of insane persons in the insane asylums of the State. Indeed, the indictment alleged that there was procured by the defendant the prescribed statutory certificate of two reputable physicians declaring the defendant's daughter to be insane before her detention at the State Hospital at Utica. Though the approval indorsed on such certificate by the county judge is not alleged in the indictment, yet the same was proved, and could, doubtless, have been put in evidence as a part of the people's case, being a material and necessary part of the warrant of authority to the hospital authorities for the detention of the patient for more than five days.

The learned district attorney has presented to us an argument to the effect that this indictment may be sustained, and the conviction of the defendant upheld, simply by proving to the jury that the daughter was, in fact, sane at the time that the defendant instituted these proceedings for her incarceration. We cannot assent to the conclusion reached by this argument, for the reason that it is contrary to the statute itself under which the defendant was indicted. Nor do the authorities upon which he mainly relies (Ayers v. Russell, 50 Hun, 282; Hurley v. Martine, 10 N. Y. Supp., 92; the latter affirmed by the Court of Appeals, 128 N. Y., 657), which were civil actions to recover damages for false imprisonment, in any respect support the contention that a person may be convicted under the statute by such evidence alone. In order to sustain a conviction under the statute, there must be made to appear, besides the actual unwilling detention or imprisonment, two things:

FIFTH DEPARTMENT, JANUARY TERM, 1893.

First. The seizure and confinement must be shown to have been, in the words of the statute, "without anthority of law." This lan guage "without authority of law" has no reference whatever, as counsel seem to think, to "due process of law." If the statute is observed, as was done in this instance by the defendant whose acts were regulated by its provisions, how can it be said that the imprisonment by the defendant of his daughter was "without authority of law?" The two reputable physicians certified to the daughter's insanity, and the county judge duly approved thereof under the statute, and the same was placed in the defendant's hands before he took any steps towards her restraint or removal to the State hospital.

In no sense can the act, with which the defendant is charged, be said to have been done "without authority of law." The burden of proof rested with the people to establish their allegation in this regard, and they failed to do so.

Secondly. The imprisonment or confinement must be shown to have been done "secretly." The phrase of the statute is "to be secretly confined or imprisoned within the State." In this respect, also, the people failed to establish any case against the defendant. Nothing could have been more public than the taking of the supposed insane person, and her detention in one of the public institutions provided by the State for insane persons.

The people having failed to make a case against the defendant in the two particulars last mentioned, the motion that the court advise the jury to acquit the defendant should have prevailed. As it is manifest that no stronger case can be made out by the people, a new trial seems to be unnecessary.

It follows that the judgment and conviction should be reversed.

DWIGHT, P. J., and LEWIS, J., concurred.

Judgment of conviction of the Oyer and Terminer appealed from reversed and the defendant discharged.

HUN-VOL. LXVI 68

66 538 25ap 77

FIFTH DEPARTMENT, JANUARY TERM, 1893.

SOPHIA D. TAYLOR, PLAINTIFF, 2. THE EMPIRE STATE
SAVINGS BANK OF BUFFALO, DEFENDANT.

Savings banks-individual deposit in excess of the limit of $3,000 prescribed by statute-interest on the excess not recoverable—banking act of 1882 (chap. 409)— the banking law of 1892 (chap. 689; chap. 37 of the general laws)

By force of section 31 of chapter 677 of the Laws of 1892 (the statutory construction law), which declares that the repeal of a statute shall not affect any act done or right accrued prior to the time of such repeal; and section 32 of the same chapter, which declares that the provisions of any chapter of the revision of the general laws, so far as substantially the same as those of laws existing at the time such chapter takes effect, shall be construed as a continuation of such laws, modified or amended according to the language employed in such provision, and not as new enactments, sections 256, 257, 267 and 290 of the banking act of 1882 (chap. 409), repealed by section 215 of the general banking law of 1892 (chap. 689), passed May, 1892, declared to take effect on the thirtieth day after its final passage, were in force until June 17, 1892, and since that time sections 113 and 123 of the general banking law of 1892 (chap. 689), which contain substantially the same provisions, have been in force in place of said sections of the act of 1882.

Section 290 of the banking act of 1882 (chap. 409), which declares it unlawful for any savings bank to receive from any individual a deposit or deposits, in excess of $3,000, does not make the act of leaving, at a savings bank, money, in excess of that sum, unlawful; and the depositor of such excess is not thereby prevented from recovering the full amount of his deposits from the bank. Section 290 of the banking act of 1882 was not intended to render void a contract entered into between a depositor and a savings bank in contravention thereof. Section 290 of the banking act of 1882, was amended in 1885 (chap. 477) by adding to it a clause to the effect that the limitation on deposit should not be construed as "prohibiting the crediting of interest on individual accounts which may have reached the maximum limit, provided that thereafter no interest shall be allowed on such increase."

Held, that, notwithstanding the provisions of sections 257 and 267 of the banking act of 1882, and of sections 113 and 123 of the general banking law of 1892, in relation to crediting interest on deposits, to be repaid to depositors, and the fact that said chapter 477 of the Laws of 1885 had been repealed by the general banking laws of 1892, a depositor was not entitled to receive any increase of his deposit over $3,000 by way of interest.

While, on the one hand, a savings bank cannot avail itself of its own violation of the law against receiving deposits in excess of $3,000, so as to deprive an innocent depositor of his money; yet, on the other hand, the depositor himself under this provision of the law is not placed in a position in which he can benefit himself by receiving any increase on his deposits by way of interest.

FIFTH DEPARTMENT, JANUARY TERM, 1893.

SUBMISSION of a controversy between Sophia D. Taylor, plaintiff, and the Empire State Savings Bank of Buffalo, defendant, without action, under section 1279 et seq. of the Code of Civil Procedure.

John G. Milburn, for the plaintiff.

Charles Daniels, for the defendant.

MACOMBER, J.:

The facts contained in the submission of this case are, that the defendant is a savings bank, located and doing business under the laws of the State of New York, at the city of Buffalo, and was originally incorporated under chapter 777 of the Laws of 1867 by the name of the National Savings Bank of Buffalo, and, under that name, continued to exist and do business until the 1st day of September, 1892, when, by proceedings taken under chapter 409 of the Laws of 1882, its name was changed to "The Empire State Savings Bank of Buffalo," the present defendant.

The plaintiff deposited money in this bank from September 15, 1880, to and including June 16, 1892, and at the last-named date a balance existed in her favor, and now remains unpaid, over the amounts from time to time paid to her, in the sum of $24,272.75. Depositors, whose deposits are under the sum of three thousand dollars, object that the defendant is not liable to pay to her any part of her deposit exceeding in amount the sum of three thousand dollars, under section 290 of chapter 409 of the Laws of 1882. On the other hand, the plaintiff claims the further amount of her deposits, less twenty-two per cent ordered to be deducted by an order of the Special Term in an action brought by the attorney-general. The defendant, acting at the suggestion and in the interest of small depositors, declines to pay to the plaintiff more than three thousand dollars. The further claim is made by the plaintiff of four per cent interest on her balance from time to time over three thousand dollars, that being the rate of interest paid by the bank on deposits of three thousand dollars or less, but the defendant denies her right to such interest. Such are the two questions submitted.

Section 290 of chapter 409 of the Laws of 1882, declares that : "It shall be unlawful for any savings bank, directly or indirectly, to receive from any individual a deposit or deposits in excess of three

FIFTH DEPARTMENT, JANUARY TERM, 1893.

thousand dollars, but this limitation shall not apply to deposits arising from judicial sales or trust funds."

It is not claimed in behalf of the plaintiff that the money deposited by her was trust funds, or was produced at any judicial sale. But this chapter (chap. 409 of the Laws of 1882), cxcept sections 68 and 69, and sections 312 to and including 327, was repealed by section 215 of chapter 689 of the Laws of 1892. Section 113 of the last-named act contains the following provision: "The aggregate amount of deposits to the credit of any individual at any time shall not exceed three thousand dollars, exclusive of all deposits arising from judicial sales or trust funds or interest."

Section 256 of the Laws of 1882 contains a provision making it lawful for savings banks to receive any sum or sums on deposit and pay the dividends thereon. By section 257 of that act the sum so deposited, with any dividends or interest credited thereto, is directed to be repaid to the depositors, and, by section 267, the rate of interest payable on deposits was to be regulated by the trustees according to the principles there laid down, but not to exceed five per cent. The provisions of sections 256, 257, 267 and 290 are substantially retained in sections 113 and 123 of the act of 1892.

Section 32 of chapter 677 of the Laws of 1892 has the following enactment: "The provisions of any chapter of the revision of the general laws, of which this chapter is a part, so far as they are substantially the same as those of laws existing at the time such chapter takes effect, shall be construed as a continuation of such laws, modified or amended according to the language employed in such provisions, and not as new enactments."

Section 31 declares: "The repeal of a statute, or a part thereof, shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected."

Chapter 677 of the Laws of 1892, took effect May 18, 1892, the date of its enactment. The general banking law of 1892, passed May 18, 1892 (chapter 689), took effect on the thirtieth day after its final passage. Hence it appears that sections 256, 257, 267 and 290 of the banking act of 1882 (chapter 409) were in force until

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