The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-11-19
NOTES or LEGAL EVENTS.

Reports. II covers thirty nine printed pages.
and is devoted chiefly to a discussion OF the
facts. The victim was the wife Of the defend
ant. to whom she was married In 1892 at the
age OF 10 years. She was poisoned by the ad-
ministration OF prussic acid at their home In Ba-
tavia In January. 1907. The review OF the facts
by Judge Haight does not present SO strong
q case against the husband as did the opinion
OF Judge Gray against the defendant In the
Carlyle Harris case. For example. the Court
regrets that the autopsy was not a. carefully
or fully performed as II should have been.
There were several organs OF the body which
were but partially or imperfectly examined
and consequently the testimony OF those per-
forming It Ia not as satisfactory az II would
navo been had these organs been thoroughly
examined. thus excluding any possibility OF
death from natural causes" This language
plainly implies that the post norton examina-
ton left some doubt as to the cause OF death.
though the Court must have thought that II
did not amount to reasonable doubt In law.
One OF the grounds upon which a reversal
was asked In the Benhnm poisoning case was
the alleged misconduct OF the District Attor-
pey In the course OF his summing up to the
jury He spoke OF the defendant as a seducer.
and when objection was made to tho ex-
preston. he referred to evidence In the case
tending to Justify the remark. The Court said
that the proof on the subject hardly warranted
the charge. whereupon thu District Attorney
declared that he wished 10 go no further than
was justified by the evidence. and II he had
done 90 he wanted the jury to forget
what he had said and remember :only the
facts. The Court OF Appeals holds that this re-
traction cured any error In the original state
ment. 1T Is sufficient for the purpose Of this
case to say that. II the District Attorney sx-
ceeded the bounds by characterizing the de-
PENDANT as seducer. he sufficiently retracted
tho statement by asking the Jury to disregard
and forget what he had said and to only con-
slider the evidence on the subject" The only
dissenting Judge In the Benham case is Judge
vann. who wrote the opinion In the Fielding
case. from Brooklyn, where the judgment was
reversed. solely on account OF what we're held
to be improper appeals by the District Attorney
to the Jury. There Judge Haight wrote a dis
sentng opinion. taking the ground that the
District Attorney did not depart so far from tho
line OF permissible discussion as to warrant q
reversal.
Very rarely does the Court OF Appeals be-
stow such n compliment upon lawyers as that
paid 20 tho counsel for the defendant in the
Benham case. The defendant has been rep
resented by counsel" Eays Judge Halght.
who presented this case to the court with an
argument seldom equalled in this forum for
force. ingenuity and ability" The gentlemen
distinguished by this motto, are William I.
Mackey OF Buffalo and William Everard Web
ster OF Batavia. Mr.. Mackey was admitted to
the bar in 1879 and practised in Niagara
county until 1884. when he moved to
Erie and became prominent figure in
the councils OF tho Cleveland Democracy
in Buffalo. He has been Attorney for the State
Dairy Com missioner. Assistant City Attorney
OF Buffalo. Assistant United States Attorney
Tor the Northern district o, New York and Ia
now State Senator from the Forty.sevcnth
iseS3 from tirnesee county Frederick S. Ran
dali. the District Attorney OF Genese., and
hyron II. Peek, ". represented the people on
the argument in the Court o! Appeals.
The announcement comes from the Corpora
ton Counsers once that no appeal Ia to be
taken TO the Court " Appeals In the case 81
Thomas Mulvoy. the New York policeman
who draws pension m n retired ofiiccr OF the
old police force and salary us a patrolman
transferred from the town OF New Utrecht.
having been made n member OF the new police
force Of tho Greater New York. by thu orera-
ton OF tho charter. his pension Is $1,000 a
year and his pay ns patrolman sl.4UO The
case was originally heard before Mr.. Justice
Dlckey. who decided that Muiyey was entitled
20 compensation in both CAPACITIES. This de-
cis!on was affirmed by the Appellate Division
IN Brooklyn. In a clear and logical opn-
ION hy Mr.. Justice Hatch which will
be found In the pamphlet number OF the Com
hned Oflca Series OF Law Reports for Aug.
., 1899 al Appellate Division Reports. page
40. Judge Hatch admitted. however. that
the result was hardly satisfactory. saying:
ma.
serves as patrolman. receives pay as such. ard
also draws a pension. may BE- conceded to Ia
somewhat ot al anomaly: but such condition
Ia created by act of Jaw and results from tho
IL by no net OF his that the present condition
has been produced: and In all that he has
done he has simply exerc,sei his legal rights,
that Mulyey lost all right TO tho continuance 81
his pension upon accepting cmployment on
the police force OF the Greater New York.
The most i'm portant declsion rendered by the
courts OF this State during the past week il
that OF the Appellate Division OF thu Supreme
Court ia the Third Department albany, CIV
ing a construction 10 the so-calod White Civil
Service law. which was enacted by the last Leg
stature at tho instance o! Gov. Roosevelt. The
case arose out OF n competitive examination In
Binghamton for the position OF Superintend-
ent OF Streets and City Property. and tho
missioners were bound to appoint the person
who passed. the bss. examination. or might
choose any one NJ the first three on the ex amin
ers' list The clause OF the statute which re-
lates 10 the matter reads thus: Appointments
shall be made to or employ m ent shall DO given
in all positions In the competitive class that
are not flle by promotion, renstate Mt
transfer or reduction under the provisions OF
this act and the rules In pursuance there
Of. bv appointment Of those graded hiohrs,
in open competitive examinations conducted
BY the STATE ~ municipal commission, except
as herein otherwise provided" The effect Of the
decision OF the Appellate Division l. to hold
that this provision Is unconstitutional 81 far hs
It assumes to require the Rppo ntment OF the
person at tho head OF the eligible list: and il
permits the BinRh0mton authorities to APP
point their Superntsndent OF Streets from
among the three candidates having the highest
standing under the civil service regulations
ante dating the White law re fecinlon has
Democrat. wrote the prevailing opinion. which
and Mr.. Justice Merwin. both Repubilcans
Judge Landon. Republican. dlssente1.