the facts shown he is entitled in equity to follow the assets into the hands of the corporation and to recover from the corporation the amount of his demand, at least to the extent of the value of the assets so taken over. But whether one cause of action is in equity and the other in law, or whether both are in law, really makes no difference, because in either event I think it must be held that they are different, and that the cause of action set up in the complaint arises, if at all, from acts done in the state of New Jersey, and therefore it could not be said that the cause of action arose in this state within the meaning of subdivision 3 of section 1780 of the Code of Civil Procedure. Hibernia National Bank v. Lacombe, 84 N. Y. 367, 384.

The plaintiff further argues that, as there has been no separate defense alleging the nonresidence of the plaintiff set up in the answer, the fact cannot be taken advantage of upon this motion, and relies for this proposition upon Ubart v. B. & O. R. R., 117 App. Div. 831, 102 N. Y. Supp. 1000. I do not regard that case as controlling upon such an application as the present. It was there held that in an action brought against a foreign corporation in the courts of this state the residence of the plaintiff was material to the jurisdiction of the court, not to the cause of action, and that the plaintiff's nonresidence was a defense, and had to be pleaded as such in the answer in order to be put in issue, and that as it had not been so pleaded it could not be taken advantage of by the defendant upon the trial; the court remarking that the fact of residence is often a difficult and close one, and could not be litigated without notice and preparation. The situation here is quite different. The case is not on trial, and the plaintiff is not being surprised with an issue of which he has had no notice and for which he has had no opportunity for preparation. His nonresidence is stated distinctly in the opposing affidavits, and is not denied in the replying affidavits. It must therefore be taken as established for the purposes of this motion that he is a nonresident.

The motion is denied, with $10 costs.

(133 App. Div. 481.)

PEOPLE v. BAUM.

(Supreme Court, Appellate Division, Third Department. June 24, 1909.) 1. MUNICIPAL CORPORATIONS ( 594*)-ORDINANCES-MISDEMEANORS-REGULATION OF GAMBLING HOUSES-POLICE POWER.

While, under the direct provisions of Laws 1903, p. 747, c. 371, § 36, subd. 1, the common council of the city of Schenectady is authorized to enact ordinances to prevent and suppress vice, gambling houses, etc., an ordinance punishing by fine any person found in a gambling house is not a proper exercise of police power, as it imposes a penalty for merely being in a gambling house, however innocent the purpose may be.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 594.*]

2. CRIMINAL LAW (§ 307*)—PRESUMPTIVE EVIDENCE OF GUILT.

A statute can only declare certain facts presumptive evidence of guilt when such facts have a legitimate tendency to show that the person For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

charged was probably committing a crime, and they cannot be given an unusual interpretation for that purpose.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 307.*]

Appeal from Schenectady County Court.

Jacob Baum was convicted of violating a city ordinance, and he appeals. Reversed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, SEWELL, and COCHRANE, JJ.

John H. Gleason, for appellant.

Walter Briggs, Dist. Atty. (Del B. Salmon, of counsel), for the People.

JOHN M. KELLOGG, J. The defendant was convicted of violating a city ordinance "in being found in a gambling house down in the corner of State and South Center streets on the 15th day of June, 1908." The ordinance provided that:

"Every person being a vagrant, mendicant, street beggar, or persons soliciting alms or subscriptions for any persons whatever, except when authorized by an organized religious body, and any prostitute or gambler, or any person, male or female, found in a house of prostitution or gambling house, shall upon conviction be punished by a fine of not less than ten dollars, nor more than twenty-five dollars, and stand committed until such fine be paid, not exceeding one day for each dollar of fine imposed, or shall be imprisoned at hard labor or not, in the discretion of the police justice, for a period not exceeding one hundred and fifty days."

The evidence showed that the defendant, with others, was found by the police sitting in a room in which there were certain devices, alleged to be gambling devices. It does not appear that any gambling had ever taken place in the room, nor for what purpose or under what circumstances the defendant entered the room or that the alleged gambling devices had ever been used there. It is not necessary to discuss whether the alleged gambling devices found in the room are sufficient to justify the conclusion that this was a gambling house. Under the reading of the ordinance, if the policeman had found a gas man taking the meter, or even removing the meter for nonpayment of bills, or removing the meter because it was thought unlawful to furnish a gambling house with gas, or for any of many innocent purposes for which a man might go upon the premises he would be equally guilty.

While the common council has ample power to enact ordinances to preserve the public peace and good order, to prevent and suppress vice, immorality, and disorderly and gambling houses, under subdivision 1, § 36, c. 371, p. 747, Laws of 1903, the ordinance in question is too broad. An ordinance might perhaps provide that a person found in a gambling house shall be presumed to be there for the purpose of gambling, unless it is shown to the contrary. People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668. The facts which may be declared as presumptive evidence of guilt cannot be forced from their ordinary interpretation, and must have some legitimate bearing tending to show that the defendant was probably committing a crime.

The ordinance in question is not one of presumption, but the mere For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

fact of being found in such a place is criminal, and the defendant is not permitted to explain or show for what purpose he was present. It is not, therefore, a proper exercise of the police power. Fisher Co. v. Wood, 187 N. Y. 90, 79 N. E. 836, 12 L. R. A. (N. S.) 707. For that reason no offense was proved against the defendant, and it is unnecessary to consider the other questions raised upon the appeal.

The judgment of the County Court and the Police Court should therefore be reversed. All concur.

PEOPLE v. DANIELS.

(Supreme Court, Appellate Division, Third Department. June 24, 1909.) Appeal from Schenectady County Court.

Carl Daniels was convicted of violating a city ordinance, and he appeals. Reversed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

John H. Gleason, for appellant.

Walter Briggs, Dist. Atty., for the People.

PER CURIAM. Judgment of the County Court and Police Court reversed, upon the opinion in People v. Baum (decided at this term of court) 118 N. Y. Supp. 3.

PEOPLE v. SEARS et al.

(Supreme Court, Appellate Division, Third Department. June 24, 1909.)

Appeal from Schenectady County Court.

Fred Sears and others were convicted of violating a city ordinance, and they appeal. Reversed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

John H. Gleason, for appellants.

Walter Briggs, Dist. Atty., for the People.

PER CURIAM. Judgments of the County Court and Police Court reversed, upon the opinion in People v. Baum (decided herewith) 118 N. Y. Supp. 3.

TRYON et al. v. LYON.

(Supreme Court. Appellate Division, Fourth Départment. July 6, 1909.) 1. VENDOR AND PURCHASER (§ 108*) - RESCISSION OF CONTRACT - DEFECT IN QUANTITY OF LAND.

Where a vendor misstates the quantity of land in a lot which she is selling, and the purchasers rely thereon and would not otherwise have purchased for the price paid, the minds of the parties did not meet and there could be no reformation of the contract; but the contract should be rescinded, and the bond and mortgage given by the purchasers canceled, and the money paid by them repaid, although the misstatements were not intentional.

[Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 108.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. VENDOR AND PURCHASER (§ 34*)- PROCEEDINGS TO CANCEL CONTRACT PLEADINGS-ISSUE OF PROOF-VARIANCE.

In an action to rescind a contract for the sale of real estate on the ground of fraudulent misrepresentation as to the amount of land in the lot, plaintiff is entitled to have the contract rescinded without proof that the misrepresentations were fraudulent, as the court in an equitable action will not permit a party to profit by her even unintended misstatement. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 34.*]

3. VENDOR AND PURCHASER (§ 34*)-RESCISSION OF CONTRACT-MISTAKE AS TO QUANTITY.

A purchaser, who relies on the statements of the vendor as to the quantity of land in the lot he is buying, is entitled to have the contract rescinded, if the vendor's statements are false, without showing the difference in value between the land which he bargained for and the land actually conveyed.

[Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 34.*]

Appeal from Trial Term, Onondaga County.

Action by Clarence R. Tryon and another against Jennie F. Lyon. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.

On the 2d day of June, 1908, the defendant owned a house and lot in the village of Liverpool, in the county of Onondaga, with an easterly frontage on Tulip street at its intersection with Fourth street. By a deed bearing date on that day she conveyed the same to the plaintiffs in consideration of the sum of $2,450, $300 of which was paid in cash, the payment of a subsisting mortgage of $900 was assumed by the grantees, and they gave their joint and several bond, secured by a second mortgage, of $1,150, the residue of the purchase price. Before purchasing the premises the plaintiffs inspected the house and were shown the boundary lines by the defendant. There was no fence on the south side of the lot, which extended westerly 165 feet. There was a barn on the southwest corner of the lot, and the evidence, without dispute, shows that the defendant told the plaintiffs that the southerly side of the barn was the southerly lot line. There was also a bed of ferns and fruit trees near the line, and the plaintiffs testified that the defendant said the fern bed and fruit trees were on the lot they were to purchase. The defendant testified that she said a part of the bed of ferns and the apple trees were within the premises to be conveyed, and that the pear tree and other shrubbery were on the adjacent lot, which she had sold to one Heid. The plaintiffs also testified that they went with the defendant to the northeast corner of the lot at the intersection of Tulip and Fourth streets. There was no sidewalk on the south side of Fourth street, and no lot fence, and nothing to denote the street line. A cement sidewalk had been constructed on Tulip street along the front of the lot, and the defendant said that the end of this walk at Fourth street was the line of that street, which was 90 feet in width, so that there was room for an additional lot of fairly good width between the dwelling house and Fourth street. The defendant denied this conversation in a measure, stating that she told the plaintiffs she was not certain of the south line of Fourth street, but that the end of the walk was on this line, and that she did not say anything as to the width of the street. The deed to the plaintiffs gave the frontage of the lot as 962 feet and the southerly line as 165 feet, both of which distances were correct. The distances on the rear of the lot and on Fourth street were not given in the deed. The southerly boundary of Fourth street was not a straight line. The plaintiffs took possession of the premises the day the deed was delivered, going there from Syracuse. They found that Mr. Heid, the owner of the contiguous lot, had torn up the fern bed and was making preparations to build. His lot had been surveyed, and included 21⁄2 feet on the southerly part of the prem*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ises conveyed to the plaintiffs, including the pear tree, a part of the fern bed, and the barn extended on his premises 22 feet. It also developed that Fourth street was not 90 feet, but 99 feet, in width, and that the cement walk extended into Fourth street 11⁄2 feet. The plaintiffs on the same day notified the defendant of the mistake as to the location of the south line, and immediately insisted upon reconveying the premises to the defendant, and asked that the money paid be refunded to them, the bond and mortgage canceled, and the whole contract rescinded. The defendant, while admitting the error which had been made, peremptorily refused to accede to the demands of the plaintiff, and this action in equity was commenced for a rescission, and for the cancellation of the bond and mortgage, and for the recovery of the money paid; the plaintiffs offering to restore the land to the defendant. Other facts appear in the opinion.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

J. W. Shea, for appellants.

Stewart F. Hancock, for respondent.

SPRING, J. Upon the trial Mr. Heid testified on behalf of the defendant that he was willing to have the barn moved onto the premises conveyed to the plaintiffs, and the defendant offered to move it at her expense. Thereupon the court dismissed the complaint, without costs, inserting in the judgment a provision requiring the defendant within a stipulated time to move the barn 22 feet to the north, so that it would stand wholly on the premises actually conveyed. We think, in view of the undisputed evidence in the record, that the disposition made of the case is not just to the plaintiffs. There was no intentional misrepresentation as to the lot line made by the defendant. She did not intend to deceive. She did, however, make a misstatement to the plaintiffs as to a material fact, by which they were misled and induced to purchase the land. It is not necessary to prove the fraud alleged. The action was in equity, and the court will not permit the plaintiffs to lose or the defendant to profit by her misstatement, although unintentionally made. Silverman v. Minsky, 109 App. Div. 1, 95 N. Y. Supp. 661, affirmed 186 N. Y. 576, 79 N. E. 1116; Crowe v. Lewin, 95 N. Y. 423; Am. & Eng. Ency. of Law, vol. 24, p. 618; (2d Ed.). The parties never agreed, the one to purchase or the other to sell, the lands covered by the conveyance. Their minds did not meet. There could be no reformation, for the defendant did not own that part of the land included in the conveyance and which did not pass to the grantees. The action for rescission was, however, an available remedy. Vail v. Reynolds, 118 N. Y. 297, 302, 23 N. E. 301. Davis v. Rosenzweig Realty Co., 192 N. Y. 128, 133, 84 N. E. 943, et seq. The learned trial court was of the opinion that the representations were not shown to be material. The plaintiffs did not receive the quantum of land which they bargained for. The width of a part of their lot was diminished 212 feet, and we think the evidence fairly established this paring off one side of the lot deprived them of a portion of the fern bed and the pear tree. They testified they would not have purchased for the price paid if they had expected the lines. were not as shown them by the defendant, and that they relied upon her statements. They were not required to show the depreciation in