statute of usury, and did not intend to come within it. No doubt, also, there was then suggested a plan whereby he might keep outside of the statute, and still obtain a return for his investment greater than the rate allowed by it. There is no law against that." Dunham v. Cudlipp, 94 N. Y. 135. "In one sense the transaction took this form for the purpose of escaping usury. But the parties had a perfect right to deal with each other with the usury laws before their eyes, and to so shape the transaction as to escape the condemnation of those laws." Saving Inst. v. Wilmot, 94 N. Y. 221, 227. The assent of defendant to the substituted arrangement is apparent from his execution of the agreement of November 2, 1894, and other evidence. Defendant's position, then, is this: He does not impugn the legality of the.actual transaction, but urges that the agreement between the parties was for another and illegal transaction, which, though renounced and unexecuted, nevertheless invalidates its substitute, the actual and legal transaction. The bare statement of the proposition suffices for its refutation. In Wyeth v. Braniff, 84 N. Y. 627, the authority upon which defendant relies, the loan was indisputable,—an essential fact, absent from the case under review. "If there was no loan, and no corrupt agreement for forbearance, there can be no usury." Sweeney v. Peaslee (Sup.) 17 N. Y. Supp. 225, 227; Meaker v. Fiero, 145 N. Y. 165, 39 N. E. 714; Siewert v. Hamel, 91 N. Y. 201. The case is not free from doubt, but, mindful of the proof requisite to show usury, I am not content that the defense is established. "The defense of usury being an affirmative proposition to be established by the defendant, he assumes the burden of estab lishing it by affirmative proof, as all the presumptions are in favor of the legality of the contract; and if, upon the whole case, the evidence is as consistent with the absence as the presence of usury, the party alleging the usury must fail." Sweeney v. Peaslee (Sup.) 17 N. Y. Supp. 225, 227; Stillman v. Northrup, 109 N. Y. 473, 17 N. E. 379.

Judgment for plaintiff, with costs.

(17 Misc. Rep. 261.)

PEOPLE ex rel. DUCHAINE v. COON.

(Supreme Court, Special Term, Essex County. June, 1896.) HOUSE OF REFUGE FOR WOMEN-CONDITIONAL DISCHARGE-REARREST.

Under Laws 1881, c. 187, § 8, as amended by Laws 1892, c. 704, authorizing the managers of the House of Refuge for Women to conditionally discharge an inmate at any time, and to cause her to be rearrested and detained "for a time equal to the unexpired portion of her term at the time of her * * * conditional discharge," a person who is conditionally discharged may be rearrested after the expiration of her original term, and committed for a time equal to the unexpired portion of the term at the time she was conditionally discharged.

Application by Josephine Duchaine for writ of habeas corpus to procure her discharge from the House of Refuge for Women at Hudson, on the ground that her imprisonment in that institution is il legal and void. Dismissed.

V.40N.Y.S.no 1-3

David H. Agnew, for relator.
J. Rider Cady, for respondent.

MCLAUGHLIN, J. On the 11th day of April, 1889, the relator was convicted of being a common prostitute, and sentenced to the House of Refuge for Women at Hudson, N. Y., "for a term of five years, unless sooner discharged by the board of managers thereof." In pursuance of this sentence, she was committed to the House of Refuge on the 15th day of April, 1889, and there remained until the 14th day of January, 1892, when she was conditionally discharged therefrom. Had she remained in the institution or the conditional discharge not have been given, the five years for which she was sentenced would have expired on the 11th day of April, 1894, at which time she would have legally been entitled to her discharge. On the 7th day of December, 1895, she was rearrested, by virtue of a warrant of rearrest issued by the board of managers, and again committed to this institution, for having violated the conditions of the discharge previously given to her.

The sole question presented by this application is whether a prisoner conditionally discharged from the institution in question before the expiration of the term for which she was sentenced can, after the expiration of the term, be rearrested, and again committed and detained for a time equal to the unexpired portion of her term at the time she was conditionally discharged. Reference to the statute bearing on the subject leaves little room for discussion as to the proper answer to be given to the inquiry thus made. The language used, if any meaning be accorded to it, clearly and unmistakably indicates a legislative intent to confer such power on the board of managers. The statute is as follows:

"Subdivision 1. The board of managers of said House of Refuge shall have power to cause to be detained therein, under such proper rules and regulations as said board shall provide, any female so committed thereto, according to the terms of said sentence and commitment, and to conditionally discharge any inmate so sentenced and committed at any time prior to the expiration of said five years, and to cause the rearrest in any county of this state, and return to said House of Refuge, of any person who may have escaped therefrom, or has been conditionally discharged therefrom, as herein provided, and in any case of such rearrest and return to detain her as aforesaid from the time of such return, for a time equal to the unexpired portion of her term, at the time of her said escape or conditional discharge."

"Subd. 3. Any person having been conditionally discharged from said House of Refuge may be arrested and returned thereto upon a warrant signed by the president and attested by the secretary of said board, which warrant shall briefly state the reasons for such arrest and return, and shall be directed and delivered to any person employed by said board of managers to convey to said House of Refuge persons committed thereto, and when so signed, attested and delivered, may be executed by such person in any county in this state."

Section 8. c. 187, Laws 1881, as amended by subdivisions 1 and 3, § 3, c. 704, Laws 1892.

Indeed, it seems to me that no other construction can be given to this statute without eliminating the words, "and, in case of such rearrest and return to detain her for a time equal to the unexpired portion of her term at the time of her condi

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tional discharge." A prisoner who escapes from the institution, and is recaptured, is treated in the same manner as one who has been conditionally discharged and returned. A conditional discharge may be granted at any time within the period for which the person is sentenced. A prisoner may escape at any time during that period. No serious contention could be made that a prisoner who had escaped from the institution prior to the expiration of the original sentence, and was thereafter captured, could not be compelled, under the statute, to serve out the unexpired portion of her term. In the one case the prisoner is at liberty by virtue of her own act, while in the other she is at liberty by virtue of the act of the board of managers. The board of managers may grant a conditional discharge at any time within the five years; and, if the person discharged conducts herself properly, that is, lives according to the terms and conditions of the discharge,-the discharge may, in practical effect, be a final and unconditional one. The prospect of an early conditional discharge is an incentive to good behavior while in the institution. The prospect of rearrest and return to the reformatory in case of misbehavior thereafter is equally strong as an inducement to the leading of an orderly life, and must, of necessity, have a deterring effect to a return to evil ways. No good reason can be suggested why, if an inmate conditionally discharged shall thereafter return to viciousness, she should not be retaken, and compelled to serve out the unexpired portion of her sentence, although she be retaken and confined after the expiration of five years from the date of the imposition of the sentence. This seems to be the policy of the statute. It certainly is its natural, and, I believe, its true, construction. However, it is not for the court to pass upon the policy of this statute, but it discharges its duty by construing it, and, if it is not a wise one, then it is for the legislature to change it, and not for the court.

The proceeding is dismissed, and the relator remanded to the custody of the institution.

(7 App. Div. 247.)

PEOPLE ex rel. CORSA v. WARING, Commissioner. (Supreme Court, Appellate Division, First Department. June 29, 1896.) MUNICIPAL CORPORATIONS-DISMISSAL OF EMPLOYE-VETERAN ACT.

Employés in the street-cleaning department of New York City are not entitled to the protection of the veteran act (Laws 1892, c. 577) but may be discharged by the commissioner at any time. People v. Waring (Sup.) 37 N. Y. Supp. 478, followed.

Appeal from special term, New York county.

Application by Henry C. Corsa for a writ of mandamus to compel George E. Waring, Jr., commissioner of street cleaning of the city of New York, to reinstate relator in the position of district superintendent in said department. From an order granting a peremptory writ, defendant appeals. Reversed.

The relator, having been removed from his position by defendant, was reinstated August 22, 1895, and directed to report for duty on the next day to the

superintendent of street cleaning. August 29, 1895, the superintendent reported to defendant that the relator had been absent from duty without leave since August 23, 1895. Thereupon the defendant on the same day, for this reason, dismissed relator from the service. The relator was an honorably discharged soldier who had served in the Union army during the war of the Rebellion. Upon motion the court made an order directing the issue of the peremptory mandamus. From that order this appeal is taken.

Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

Francis M. Scott and James M. Ward, for appellant.

Charles Blandy and Louis C. Freeman, for respondent.

WILLIAMS, J. The order appealed from must be reversed. People v. Waring, 1 App. Div. Rep. 594, 37 N. Y. Supp. 478, decided by this court, affirmed by court of appeals, 44 N. E. is conclusive upon all the questions involved in the present case. We held in that case that the relator was not entitled to the protection of the veteran act, in reliance upon which the court made the order here appealed from, but the power to dismiss was given by the street-cleaning act. We also held in that case that no particular species of evidence was required under the street-cleaning act to enable the commissioner to dismiss the relator. It was only required to be satisfactory to the head of the department. In that case the deputy commissioner recommended in writing that the relator be dismissed on charges and specifications, and the commissioner believed the charges to be true upon information he received, and this we held was sufficient. Here the superintendent reported the relator had been absent from duty for five days without leave, and it was true. There was dispute as to whether he was absent by some arrangement between the commissioner and relator's attorney, but we do not think the court could determine whether the evidence on which the commissioner acted in dismissing relator was satisfactory to him. And, moreover, the decision of the court was not put on such ground, but on the ground that the relator was protected under the veteran act, which was untenable.

The order appealed from should be reversed, and the writ dismissed, with costs. All concur.

(7 App. Div. 248.)

STEINER v. HELLMAN.

(Supreme Court, Appellate Division, First Department. June 29, 1896.) PLEADING AND PROOF.

Plaintiff in an action for specific performance alleged that defendant agreed in writing to give him a lease for three years. The only writing given in evidence was a receipt signed by defendant for money paid on account of rent of the premises in question, but no term was specified therein, nor did it contain any agreement to give a written lease. Held, that plaintiff could not recover on proving a contract partly oral, without an amendment of the complaint.

Appeal from special term, New York county.

Action by Victor Steiner against Myer Hellman.

From a judg.

ment entered on a decision dismissing the complaint on the mer its, plaintiff appeals.

Affirmed.

The action was brought to compel the specific performance of a written contract for a lease of real property. The complaint alleged a written contract for a lease of the ground floor and basement of a building for the term of three years. No such contract was proved on the trial. The only writing given in evidence was a receipt signed by defendant for $25 paid by plaintiff as a deposit on account for store, said amount to be credited to May rent; rent to be $70 per month, in advance, from May 1, 1895. No term was specified, and no agreement to give any written lease. Both parties gave parol evidence as to what took place with reference to the leasing of the property, what the term was to be, and whether an additional floor of the building was finally agreed to be included in the property to be leased. Plaintiff took possession of the two floors and basement, and occupied them. A lease of the whole for the term of three years was made out and sent by defendant to plaintiff, with the request that he execute and return duplicate. Plaintiff refused to accept such lease, or to sign and return duplicate, and it was finally returned to defendant. The plaintiff claimed that he should have a lease of the ground floor and basement alone for three years, and that he was to lease the other floor for no particular term. The defendant claimed that the plaintiff was to lease the whole together for the three years. It was not claimed that this agreement was perfected at the time the receipt for the $25 was given, but that no term was then agreed upon as to the store, and by agreement after that the basement and first and second floors were to be leased together for three years. The court denied the plaintiff the relief asked for.

Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

George C. Coffin, for appellant.
William C. Wolf, for respondent.

WILLIAMS, J. We see no reason to disturb the judgment entered upon the decision of the trial court. The plaintiff entirely failed to establish a written contract for a three-years lease, as alleged in his complaint. There was no amendment made to the complaint, so as to allege a contract partly written and partly parol, which was sought to be enforced; and without such amendment, certainly, the plaintiff could not have the relief asked for. If such amendment had been made, the defendant would have had the right to answer such amended complaint, and could then have interposed the defense of the statute of frauds, which the court of appeals seems to have held must be pleaded in order to be taken advantage of. The court took all the evidence, however, and then determined the case upon the facts; holding that, even considering the parol evidence, there was no contract for a lease for three years of the basement and first floor alone so satisfactorily shown as to authorize the court to compel specific performance thereof. The evidence was conflicting, and, considering the parol evidence and the documentary evidence appearing in the records. altogether, we quite agree with the learned trial judge that the plaintiff did not make a case entitling him to the relief sought.

The judgment appealed from should be affirmed, with costs. All concur.