enacting clause in New York

1939Notes with Cowen & Hill’s Notes], p. 821; Harris v. White, 81 N. Y. 532, 548 .) For these reasons we think the complaint was defective and that without discussing the other reasons urged therefor by the defendant, the judgment should be affirmed, with costs.” Thus the rule is clearly adduced from these cases that, where the exception is in the enacting clause and the general rule applies, the People must allege and prove the negative of the exception.

1918Law, 378): ‘ If provisos and exceptions are contained in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the proviso it contains. * * * Eor all these are matters of defense which the prosecutor need not anticipate, but which are more properly to come from the prisoner. * * * If the exceptions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute. ’ Such is the law of this state.” In support

1919It is said in Rowell v. Janvrin ( 151 N. Y. 60 at page 67) “ An exception exempts something absolutely from the operation, of a statute by express words in the enacting clause; a proviso defeats its operation conditionally.

1901It may be that the plaintiff should have negatived the proposition in its complaint, but if the evident intent of the Legislature is to be carried out, and the proviso is to be given any force, the whole matter of the liability of the directors of “ a corporation formed for promoting or maintaining the principles of a political party ” must be referred to .the last clause of the section, where it comes under the well-established rule thatwhere there is a clause 'for1 the benefit of the pleader, and afterwards follows a proviso which is against him, he may plead the clause and leave it to his a

1973The leading New York decision is People v. Stedeker ( 175 N. Y. 57 ) where the defendant was indicted under a statute prohibiting bookmaking except on authorized race tracks.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1980In People v Smith ( 192 Misc 965 , affd 299 NY 707 , supra), for example, the statute in question (former subdivision 3 of section 56 of the Vehicle and Traffic Law) read "[a] rate of speed * * * in excess of fifty miles an hour * * * except where a greater speed is permitted by the state traffic commission, shall be unlawful”.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1948(People v. Stedeker, 175 N. Y. 57 ; People v. Devinny, 227 N. Y. 397 ; Rowell v. Janvrin, 151 N. Y. 60 ; Harris v. White, 81 N. Y. 532 ; Fleming v. People, 27 N. Y. 329 ; People [Lewis] v. Kollender, 169 Misc. 995 .) The statute in question here does contain a specific exception which is more fully covered in article 7 of the Yehicle and Traffic Law, entitled “ State Traffic Commission ”.

1899The words ‘unless,’ ‘other than,’ ‘not being,’ ‘not having,’ &c., have the same legal effect, and require the same form of pleading.” In Dawson v. People ( 25 N. Y. 402 ) the court, per Selden, J., says: “ These qualifying words being found in the enacting clause of the statute, an indictment would not be good which failed to show that the defendant was not within their protection,” citing authorities, The rule is well recognized, though not applied, in Fleming v. People ( 27 N. Y. 329 ) and again enunciated with authorities in Harris v. White (81 id. 532, 546, 547.) It is to be noted that the

1980In People v Smith ( 192 Misc 965 , affd 299 NY 707 , supra), for example, the statute in question (former subdivision 3 of section 56 of the Vehicle and Traffic Law) read "[a] rate of speed * * * in excess of fifty miles an hour * * * except where a greater speed is permitted by the state traffic commission, shall be unlawful”.

1972(People v. Bailey, 60 Misc 2d 283 ; People v. Devinny, 227 N. Y. 397 and in 105 Misc. 555 ; also People v. Smith, 192 Misc. 965 , affd. 299 N. Y. 707 ; People v. Stedeker, 175 N. Y. 57 .) Briefly stated, the burden on the prosecution of negativing statutory exceptions applies where the existence of the exception .relieves the act charged of its criminality.

1972(People v. Bailey, 60 Misc 2d 283 ; People v. Devinny, 227 N. Y. 397 and in 105 Misc. 555 ; also People v. Smith, 192 Misc. 965 , affd. 299 N. Y. 707 ; People v. Stedeker, 175 N. Y. 57 .) Briefly stated, the burden on the prosecution of negativing statutory exceptions applies where the existence of the exception .relieves the act charged of its criminality.

1962(People v. Smith, 192 Misc. 965 , affd. 299 N. Y. 707 ; People v. Devinny, 227 N. Y. 397 .) An examination of the record show’s that the Police Justice asked some questions to clarify his understanding of the testimony and the issues.

2006Moreover, even where the exception is in the enacting clause so that the People are generally required to plead it in the negative (see People v Kohut, 30 NY2d 183 [1972], supra), there is authority stating that the People are still not required to do so when the facts are peculiarly and immediately within the knowledge of the defendant (see People v Baur, 102 Misc 2d 971, 973-974 [1980]; People v Odermatt, 39 Misc 2d 217, 218 , supra; People v Kollender, 169 Misc 995, 998 [1939]).

1976(Cf. People v Kohut, 30 NY2d 183 .) The modifying words are not part of the enacting clause, but rather are found in section 802.

1862(Rex v. Jarvis, 1 East., 647; Rex v. Earnshaw, 15 id., 456; State v. Morse, 6 Conn., 9 ; Spiers v. Parker, 1 T.

1862Under the other statute, it would be defective because it is not alleged that the acts were done "without justifiable or excusable cause." These qualifying words being found in the enacting clause of the statute, an indictment would not be good which failed to show that the defendant was not within *Page 403 their protection. ( Rex v. Jarvis, 1 East., 647; Rex v. Earnshaw, 15 id., 456; State v. Morse, 6 Conn., 9 ; Spiers v. Parker, 1 T.R., 141; The People v. Allen, 5 Denio, 74 .) If it was clear that two offences were intended to be set out in the single count, it might be fatal, although one

2006Moreover, even where the exception is in the enacting clause so that the People are generally required to plead it in the negative (see People v Kohut, 30 NY2d 183 [1972], supra), there is authority stating that the People are still not required to do so when the facts are peculiarly and immediately within the knowledge of the defendant (see People v Baur, 102 Misc 2d 971, 973-974 [1980]; People v Odermatt, 39 Misc 2d 217, 218 , supra; People v Kollender, 169 Misc 995, 998 [1939]).

1990"The nature of a proviso has long been well understood by legislators as well as lawyers” (Sharrow v Inland Lines, 214 NY 101, 105 ). * The purpose and functioning of a proviso is to restrain the enacting clause, to take something back from the power first declared, to except something which otherwise would be within it.

1982In our view, the standards, while stated in general terms, when taken with the enacting clause and purposes set forth in the statute, sufficiently limit and define the board’s discretionary powers to withstand an attack on grounds of improper delegation (see Dur-Bar Realty Co. v City of Utica, 57 AD2d 51, 55-56 , affd 44 NY2d 1002 ; Matter of Aloe v Dassler, 278 App Div 975 , affd 303 NY 878 ).

1982In our view, the standards, while stated in general terms, when taken with the enacting clause and purposes set forth in the statute, sufficiently limit and define the board’s discretionary powers to withstand an attack on grounds of improper delegation (see Dur-Bar Realty Co. v City of Utica, 57 AD2d 51, 55-56 , affd 44 NY2d 1002 ; Matter of Aloe v Dassler, 278 App Div 975 , affd 303 NY 878 ).

1982In our view, the standards, while stated in general terms, when taken with the enacting clause and purposes set forth in the statute, sufficiently limit and define the board’s discretionary powers to withstand an attack on grounds of improper delegation (see Dur-Bar Realty Co. v City of Utica, 57 AD2d 51, 55-56 , affd 44 NY2d 1002 ; Matter of Aloe v Dassler, 278 App Div 975 , affd 303 NY 878 ).

1973(People v. Smith, 192 Misc. 965 ; People v. Bailey, 60 Misc 2d 283 ; People v. Tarlow, 249 App. Div. 224 ; People v. Silver, 251 App. Div. 309 ; People v. Rubenstein, 252 App. Div. 730.) In People v. Kollender ( 169 Misc. 995, 998 ), the court, in a scholarly opinion, undertook a review of the law in this State, and enunciated the rule as follows: “ (1) When a.statute contains in and as a part of its enacting clause an exception or exceptions to the effect that in certain cases * * * the offense prohibited by the statute is not to be considered as having been committed, that constitutes a true

1973(People v. Smith, 192 Misc. 965 ; People v. Bailey, 60 Misc 2d 283 ; People v. Tarlow, 249 App. Div. 224 ; People v. Silver, 251 App. Div. 309 ; People v. Rubenstein, 252 App. Div. 730.) In People v. Kollender ( 169 Misc. 995, 998 ), the court, in a scholarly opinion, undertook a review of the law in this State, and enunciated the rule as follows: “ (1) When a.statute contains in and as a part of its enacting clause an exception or exceptions to the effect that in certain cases * * * the offense prohibited by the statute is not to be considered as having been committed, that constitutes a true

1973(People v. Smith, 192 Misc. 965 ; People v. Bailey, 60 Misc 2d 283 ; People v. Tarlow, 249 App. Div. 224 ; People v. Silver, 251 App. Div. 309 ; People v. Rubenstein, 252 App. Div. 730.) In People v. Kollender ( 169 Misc. 995, 998 ), the court, in a scholarly opinion, undertook a review of the law in this State, and enunciated the rule as follows: “ (1) When a.statute contains in and as a part of its enacting clause an exception or exceptions to the effect that in certain cases * * * the offense prohibited by the statute is not to be considered as having been committed, that constitutes a true

1972(People v. Bailey, 60 Misc 2d 283 ; People v. Devinny, 227 N. Y. 397 and in 105 Misc. 555 ; also People v. Smith, 192 Misc. 965 , affd. 299 N. Y. 707 ; People v. Stedeker, 175 N. Y. 57 .) Briefly stated, the burden on the prosecution of negativing statutory exceptions applies where the existence of the exception .relieves the act charged of its criminality.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1969(People v. Smith, 192 Misc. 965 ; People v. Stedeker, 175 N. Y. 57 ; People [Lewis] v. Kollender, 169 Misc. 995 ; People v. Talbot, 34 Misc 2d 385 ; People v. Grammer, 25 Misc 2d 223 ; People v. Hosier, 19 Misc 2d 1065 .) The exceptions set forth in subdivision (a) of section 1120 of the Vehicle and Traffic Law are clearly part of the enacting clause of the statute.

1939People v. Davico ( 170 App. Div. 337 ) was a similar case involving a statute making it a felony to sell cocaine “ except under the conditions and to the persons authorized by this section.” The defendant, having been convicted, was granted a certificate upon the ground the exception being part of the enacting clause of the statute it was incumbent upon the People to adduce evidence to show that the defendant’s act was not within the exception under the ruling in the Stedeker case (supra).

1937But if the modifying words are no part of the enacting clause, but are to be found in some other part of the statute, or in some subsequent statute, it is otherwise, and he may then state his case in the words of the enacting clause, and it will be prima fade sufficient.” (See, also, Hill v. Smith, 260 U. S. 592 .) We hold that each payee-owner has the burden of showing that he did not elect to treat his item as dishonored, before he is entitled to priority.

1937But if the modifying words are no part of the enacting clause, but are to be found in some other part of the statute, or in some subsequent statute, it is otherwise, and he may then state his case in the words of the enacting clause, and it will be prima fade sufficient.” (See, also, Hill v. Smith, 260 U. S. 592 .) We hold that each payee-owner has the burden of showing that he did not elect to treat his item as dishonored, before he is entitled to priority.

1934In any reorganization which shall have been approved and shall become effective as provided herein, all depositors and other creditors and stockholders of such national banking association, whether or not they shall have consented to such plan of reorganization, shall be fully and in all respects subject to and bound by its provisions, and claims of all depositors and other creditors shall be treated as if they had consented to such plan of reorganization.” The act was passed in pursuance of a proclamation by the President declaring a national emergency, and is entitled “A bill to- provide rel