If the defendant is anxious to dispose of the litigation, and thus, if possible, avoid the judgment, the condition of the equity calendar of Kings County is such that he may have his hearing almost immediately. The said order of December 31st restored the case to the calendar for January 10, 1916, and in ordinary course, but for this appeal, the trial of the issue would have been possible long since. We find no reason for interference with the order of December 23d, which relates to a reargument of the original motion and to the taxation of the costs.

The appeals from the orders of December 9th and 23d are dismissed, without costs, and the order of December 31st is modified, so that the case is restored to the next calendar of the Special Term, and, as so modified, it is affirmed, with $10 costs and disbursements.

THOMAS, STAPLETON, and MILLS, JJ., concur. CARR, J., not voting.

EICHHORN v. NEGRIN.

(Municipal Court of City of New York, Borough of Manhattan, Second District. March, 1916.)

COSTS 9-SPECIAL APPEARANCE-"MOTION"-STATUTE.

Under Municipal Court Code (Laws 1915, c. 279) § 78, allowing a party to appear specially by filing with the clerk, on or before the last day for answering, a notice of special appearance, stating the particular purpose for which he appears, whereupon the case shall be set down for a hearing, and Code Civ. Proc. § 768, defining a motion as an application for an order, a special notice of appearance, interposed for the purpose of moving to set aside the service of the summons and complaint, was in effect an application for an order dismissing the answer, and hence a "motion," so that, on granting it and dismissing the action, the court might grant motion costs, under Municipal Court Code, § 167, subd. 1. [Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 7-15; Dec. Dig. 9.

For other definitions, see Words and Phrases, First and Second Series, Motion.]

Action by Herman Eichhorn against Jake Negrin. Motion to set aside service of summons and complaint granted, with costs.

Geza Eichhorn, of New York City, for plaintiff.
Nathan H. Stone, of New York City, for defendant.

SNITKIN, J. In this action a special notice of appearance was interposed for the purpose of moving to set aside the service of the summons and complaint herein. This matter came on for hearing on the 22d day of March, 1916, and the traverse to the service made herein was sustained and the action necessarily dismissed. The attorney, appearing specially herein, moves for an allowance of costs, which is opposed by the plaintiff herein.

Under section 78 of the Municipal Court Code (Laws 1915, c. 279) a party may appear specially by filing with the clerk, on or before the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

last day for answering, a notice of special appearance, stating the particular purpose for which he appears. In that event the case shall be set down for a hearing. Strictly speaking, as the word "traverse" does not appear in the Municipal Court Code it is no more nor less than a motion, except that it has been customary in this court, where a return is traversed, to set the same over for a hearing and have the witnesses orally in court, rather than to determine the facts upon affidavits. It is really nothing more nor less than an application for an order dismissing the action, on the ground that improper service was made. Section 768 of the Code of Civil Procedure defines a motion as follows: "An application for an order is a motion." Being therefore a motion, I am inclined to the view that the court, in disposing of it, may grant motion costs under section 167 of the Municipal Court Code, subdivision 1.

The motion is therefore granted, and the person appearing herein. specially is allowed the sum of $10 costs.

1. INDIANS

SHONGO v. SHONGO et al.

(Erie County Court. March 11, 1915.)

27(7)—ACTIONS-APPELLATE JURISDICTION-COUNTY COURT.

Laws 1914, c. 508, amending Indian Law (Consol. Laws, c. 26) § 50, so as to permit an appeal from a determination of the Council of the Seneca Nation to the County Court, is valid.

[Ed. Note.-For other cases, see Indians, Dec. Dig. ~27(7).]

2. INDIANS 27(7)—JURISDICTION OF INDIAN COUNTRY-COUNCIL OF SENECA NATION.

Under Indian Law, § 50, authorizing an appeal from the Peacemakers' Court of the Seneca Nation to the Council of the Nation, the Council had the power to determine whether an appeal had been taken. [Ed. Note. For other cases, see Indians, Dec. Dig. —~27(7).]

3. INDIANS

~27(7)—ACTIONS-APPELLATE JURISDICTION-COUNTY COURT. Under Laws 1914, c. 508, authorizing review in the County Court of a determination of the Council of the Seneca Nation on the evidence taken in the Peacemakers' Court, the County Court has power to review a determination of the Council that an appeal was not properly taken from the Peacemakers' Court.

[Ed. Note. For other cases, see Indians, Dec. Dig. 27(7).]

4. INDIANS ~~27(7)—JURISDICTION OF INDIAN COUNTRY-PROcedure.

Under Indian Law, § 50, providing that an appeal may be taken to the Council of the Seneca Nation from the Peacemakers' Court, by serving on the adverse party and on the Peacemakers' Court a notice of such appeal, a notice of appeal signed by two of the defendants, and followed by the name of the attorney for defendants in typewriting, with the words "Attorney for Defendants," is sufficient as to defendants who did not sign. [Ed. Note.-For other cases, see Indians, Dec. Dig. ~27(7).]

5. INDIANS 27(7)—JURISDICTION OF INDIAN COUNTRY-PROCedure.

Indian Law, §§ 47, 48, 53, providing that each entry in the record of Peacemakers of the Seneca Nation shall state the amount of costs and to whom allowed, that the fees shall be fixed by the Council and the Peacemakers shall award costs to the party against whom the determiFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

nation is made, and the marshal shall be entitled to the same fees as are allowed by law to constables in Justice Courts, contemplate that the Council of the Nation shall fix certain costs and fees applicable to all cases, and that the Peacemakers are to fix the costs and fees in each action on the basis of the schedule fixed by the Council.

[Ed. Note. For other cases, see Indians, Dec. Dig. ~27(7).]

6. INDIANS ~27(7)—JURISDICTION OF INDIAN COUNTRY-Procedure.

Rules and practice of the Council of the Seneca Nation, providing that, to perfect appeals from the Peacemakers' Court, all costs of the Peacemakers' Court must be paid according to a certain schedule, have no legal binding force until the costs have been properly fixed according to the provisions of the Indian Law.

[Ed. Note. For other cases, see Indians, Dec. Dig, 27(7).]

7. INDIANS 27(7)—JURISDICTION OF INDIAN COUNTRY-PROcedure.

An allowance of costs in the Peacemakers' Court of the Seneca Nation of $5 for complaint, $4.50 for first and second adjournments, $5 for one day's trial, and $21.20 marshal fees, is so exorbitant that their payment cannot be exacted as a condition of appeal to the Council of the Nation. [Ed. Note. For other cases, see Indians, Dec. Dig. 27(7).]

Action by Moses Shongo against Howard J. Shongo and others. From a judgment for plaintiff, defendants appeal. Motion to dismiss appeal denied, and motion by appellants for further return granted. Leroy Andrus, of Buffalo, for appellants.

Robert E. Congdon, of Gowanda, for respondent.

LAING, J. This is a motion on behalf of the plaintiff and respondent to dismiss the defendants' appeal, and a motion on behalf of the defendants and appellants to compel the making and filing of a return on the appeal herein.

[1] The first ground upon which the motion to dismiss this appeal is made is that the Legislature had no power to pass chapter 508 of the Laws of 1914, amending section 50 of the Indian Law, so as to permit an appeal from the determination of the Council of the Seneca Nation to the County Court. The appellant challenges the right of the Legislature to give to this court authority to pass upon a final determination of the Council of the Seneca Nation.

It is not proposed now to go into an exhaustive discussion of the question raised by this motion. There have been many decisions of the courts of this state dealing with the status of the Indians and their relation to the state and to the United States. Some of these decisions. are quite recent, and several of them contain much interesting history. and discuss questions closely related to the question involved in this. motion.

The most recent decision of the Court of Appeals is People ex rel. Cusick v. Daly, 212 N. Y. 183, 105 N. E. 1048, Ann. Cas. 1915D, 367. In the opinion in that case it was held that the courts of this state had no power to try an Indian for the offense of assault with intent to kill, because that is a crime specified in section 328 of the United States Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1151 [Comp. St. 1913, § 10,502]), and the United States by that section having

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

exercised jurisdiction over the crime, the power of the state must yield to the paramount authority of the federal government.

The opinion in that case discusses at some length the question as to whether the state or the general government has the power to legislate with regard to the New York Indians. Werner, J., writing the opinion, recognizes the fact, as pointed out in several other decisions, that the status of the New York Indians toward the state is not the same as the status of that of other Indian tribes or nations toward the states within whose boundaries their respective reservations are located. But notwithstanding this fact he inclines to the view that the New York Indians are the wards of the nation rather than the wards of the state, and with some hesitation he concludes that in the case under consideration the state courts had no power to try the defendant. The opinion concludes in this language:

"Even if we assume that, in the absence of federal legislation, the state has the most ample power to legislate for the Indians within its borders, there seems no escape from the conclusion that when Congress does act the power of the state must yield to the paramount authority of the federal government." Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312, 101 N. E. 907. "Congress has exercised its power in respect to the crimes enumerated in section 328 of the United States Criminal Code, and the crime for which the relator has been arrested and held is among those therein set forth. For these reasons we think that the jurisdiction of our state courts must give way before the higher authority which this statute vests in the federal courts."

It will thus be seen that the case of People ex rel. Cusick v. Daly leaves open the question now under consideration. In the absence of an adjudication by the Court of Appeals, the decisions of the lower courts must furnish the authority for the disposition of this motion. It is my opinion that the cases of Jimeson v. Pierce, 78 App. Div. 9, 79 N. Y. Supp. 3, Peters v. Tallchief, 121 App. Div. 309, 106 N. Y. Supp. 64, Matter of Printup, 121 App. Div. 322, 106 N. Y. Supp. 74, Hatch v. Luckman, 155 App. Div. 765, 118 N. Y. Supp. 689, 140 N. Y. Supp. 1123, Silverheels v. Maybee, 82 Misc. Rep. 48, 143 N. Y. Supp. 655, George v. Pierce, 85 Misc. Rep. 105, 148 N. Y. Supp. 230, and People ex rel. Jamerson v. John, 80 Misc. Rep. 418, 141 N. Y. Supp. 225, together with Seneca Nation v. Christie, 126 N. Y. 122, 27 N. E. 275, and Johnson v. Long Island R. R. Co., 162 N. Y. 462, 56 N. E. 992, are authority for holding that the Legislature had ample power to pass chapter 508 of the Laws of 1914.

In Jimeson v. Pierce, cited above, Williams, J., says:

"For many years the Legislature has passed laws for the protection of the rights and property of these Indians and the enforcement of such rights under the laws so passed. We see no reason why such laws should not be regarded as valid, and should not be enforced. While it has been frequently held that Indians cannot come into our courts and bring actions, in the absence of acts of the Legislature enabling them to do so, yet it has always been held that they can do so under enabling acts when they have been passed."

The above language is quoted with approval by Kruse, J., in the case of Peters v. Tallchief, 121 App. Div. 309, 106 N. Y. Supp. 64, in a case involving the jurisdiction of the state courts to entertain a summary proceeding under section 5 of the Indian Law.

In the Matter of Printup, 121 App. Div. 322, 106 N. Y. Supp. 74, the court held that the Surrogate's Court had jurisdiction to grant letters of administration on the estate of an Indian under section 5 of the Indian Law, if a case came under the provisions of that section. In the case of Hatch v. Luckman, it was held that the Surrogate's Court of Erie County had jurisdiction to issue letters of administration upon the personal estate of a Tonawanda Indian, and in the course of the opinion Wheeler, J., says:

"The law of this state is supreme, and the Tonawandas, we think, can claim no sovereignty of their own superior to that of the state. The state from time immemorial has assumed to control and direct their affairs, and legislate in reference to them, and its authority so to do has never been doubted or questioned. Where the Indians assert any peculiar rights or privileges, they must find authority for them in the legislation and laws of this state, and not by reason of their peculiar customs, or tribal existence from immemorial times. Such sovereignty as they formerly possessed, we think it may be safely asserted, has at this time been merged and lost in the greater sovereignty of the state, under which they must look for protection of life and property."

In the case of Silverheels v. Maybee, 82 Misc. Rep. 48, at page 52, 143 N. Y. Supp. 655, at page 657, Laughlin, J., says:

"The interesting and learned arguments presented by counsel for the defendant in support of his contentions that the provisions of the Indian Law in question are unconstitutional and void, that the court is without jurisdiction, and that the Legislature has only authorized the enforcement in the state courts of orders, directions, and judgments for the recovery of money, would merit an opinion, if there were no precedents controlling upon the trial court; but it appears that all of those questions have been authoritative ly decided adversely to the defendants."

In the case of George v. Pierce, 85 Misc. Rep. 105, 148 N. Y. Supp. 230, it was held that under section 5 of the Indian Law the courts of this state have jurisdiction to try and determine disputes between Onondaga Indians as to the possession of lands lying within the boundaries of the reservation.

During the early history of the state it made many treaties with the different Iroquois Nations, and from an early date down to the present time it has passed and enforced laws for the regulation of the Indians and their property. As time has gone on the remnants of the Iroquois Nations have come more and more under the control of the state, and their lives have been more and more directed and regulated by the laws and courts of the state. We now have, as a part of our Consolidated Laws, a chapter known as the "Indian Law," and the trial before the Peacemakers' Court and the appeal there from to the Council of the Nation in this case are supposed to have been had and taken under the provisions of this Indian Law. The constitution of the Seneca Nation of Indians presented on this motion was ratified by an act of the Legislature of this state. The general government has recognized and acquiesced in the exercise of the authority over the Indians by the state of New York. The Indians themselves have recognized the authority of the state of New York by entering into treaties with it, and by appealing to the Legislature for the enactment