77, 49 N. E. 663, on the ground that the statute was not retroactive, and could not affect judgments entered prior to the passage of the amendment.

[4] The court, having authority to modify, the question remains whether, under the circumstances of the case, it should exercise that right.

This depends, in part at least, upon the nature and character of the provision for alimony made in the decree of separation. The judgment of separation did not dissolve the marriage relation. That relation still continued with all the legal obligations of the husband to provide for the support of the wife, the measure and extent of which was fixed and determined by the provision for the payment of alimony in the decree of separation. The marital relation was modified by the judgment of separation based on the husband's misconduct to the extent that the wife was permitted to live separate and apart from her husband, but the decree recognized and continued the obligation to support the wife, by the provision for the payment of alimony.

The direction for the payment of alimony in actions for a judicial separation proceeds upon a different theory than provisions for alimony in cases of absolute divorce. In the latter class of cases the marriage is dissolved, and the judgment for alimony in such cases is rather in the nature of a penalty imposed upon the guilty party for a violation of his marriage vows and obligations. Alimony in such cases is rather a substitute for the rights of the innocent wife which the divorce cuts off and forbids in the future. This distinction has been pointed out in numerous cases. Wilson v. Hinman, 182 N. Y. 408, 75 N. E. 236, 2 L. R. A. (N. S.) 232, 108 Am. St. Rep. 820; Estate of Ensign, 103 N. Y. 284, 8 N. E. 544, 57 Am. Rep. 717.

In cases of divorce, the obligation to pay alimony terminates on the death of the husband. Johns v. Johns, 44 App. Div. 533, 60 N. Y. Supp. 865; Barnes v. Klug, 129 App. Div. 192, 113 N. Y. Supp. 325. The plaintiff in this action has seen fit to become a resident of the state of Ohio, and to invoke the jurisdiction of the courts of that state, and obtain an absolute divorce from the defendant. This divorce, we have seen, she is estopped from questioning, and it, in effect, has terminated the marriage relation between herself and the plaintiff, upon which the provision of the decree for the payment of alimony was predicated. In legal contemplation, the Ohio decree was just as effective to terminate the marriage relation as the death of the defendant would have been. Having elected to terminate that relation by proceedings in the Ohio courts, we do not think the plaintiff can insist that she still has the right to enjoy the benefits flowing from that relationship, and it follows that the judgment directing the payment of alimony should therefore be modified as asked.

In Burton v. Burton, 150 App. Div. 790, 135 N. Y. Supp. 248, the defendant had obtained a decree of judicial separation. Subsequently the defendant in that action brought an action for an absolute divorce against his wife on the ground of her adultery, and succeeded in his action. The court held that the court had the right and power by its judgment of divorce to provide that the plaintiff should be relieved from the obligation to pay further alimony by virtue of the decree of

separation, upon the ground and for the reason that the marriage relation was terminated, which was the basis of the provision for alimony in the judgment for separation.

The plaintiff's motion to modify the decree in this action as to the payment of alimony is therefore granted, and the motion to punish. the defendant as for a contempt is denied, without costs to either party.

So ordered.

(158 App. Div. 183.)

CITY OF NEW YORK v. KELSEY.

(Supreme Court, Appellate Division, Second Department. July 25, 1913.) 1. CEMETERIES (§ 3*)-CONSTITUTIONAL LAW (§ 208*)-EMINENT DOMAIN (§ 2*) -STATUTES-VALIDITY-LOCATION OF CEMETERY-DISTANCE FROM CITY

WATER SUPPLY.

Laws 1868, c. 591, entitled "An act to prevent burials near the reservoirs and ponds" used for the water supply of the city of Brooklyn, and making it unlawful to establish any cemetery or place of burial within half a mile of any reservoir or pond used to supply Brooklyn with water, except that nothing contained therein should prevent burials in any established cemetery or grounds held by any duly organized religious corporation or society, was a proper exercise of police power and not unconstitutional as depriving the landowner of property rights without compensation or as discriminatory between persons and corporations.

[Ed. Note.-For other cases, see Cemeteries, Cent. Dig. § 3; Dec. Dig. § 3; Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208;* Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2.*]

2. CONSTITUTIONAL LAW (§ 47*)-STATUTES-CONSTRUCTION.

In determining whether a statute is constitutional it must be considered in the light of what may be done under it and not what has been done under it.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 4345; Dec. Dig. § 47.*]

Appeal from Special Term, Nassau County.

Suit by the City of New York against Augustus D. Kelsey. Decree for complainant, and defendant appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

Thomas Young, of Huntington (Francis G. Hooley, of Rockville Centre, on the brief), for appellant.

James D. Bell, of Brooklyn (John B. Shanahan, of Brooklyn, on the brief), for respondent.

CARR, J. [1] This is an appeal from a judgment of the Special Term in Nassau county, decreeing a permanent injunction against the defendant as to the use of certain lands owned by him in Nassau county, situated at Rockville Center, for purposes of a public cemetery. The land in question adjoins an existing cemetery, known as the Rockville Cemetery. These lands are described in the complaint herein. Permission was given to the defendant by the board of supervisors of Nassau county to devote said lands to the purposes of a pub

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

lic cemetery. Within half a mile of these lands is situated a large pond of water, known as "Smith's Pond," which forms a part of the water supply system of the present borough of Brooklyn and the former city of Brooklyn. This pond was a part of the water supply system of the city of Brooklyn prior to the enactment of chapter 591 of the Laws of 1868, which provides as follows:

"An act to prevent burials near the reservoirs and ponds used for the supply of the city of Brooklyn with water.

"Passed May 5, 1868.

"The people of the state of New York, represented in Senate and Assembly, do enact as follows:

"Section 1. It shall not be lawful to establish any cemetery or place of burial, or burial vaults, or other place for the reception or burial of dead bodies, or to bury, or deposit in vaults, any dead body, within a distance of half a mile of the Ridgewood reservoir, or any other reservoir, or any ponds used for the supply of the city of Brooklyn with water. But nothing herein contained shall be construed to prevent burials in any cemetery already established, or grounds now held by any religious corporation or society organized under the laws of this state.

"Sec. 2. This act shall take effect immediately."

The city of New York brought this action to enjoin the use of said. lands for public cemetery purposes, as being in violation of the aforesaid statute. Judgment went for the plaintiff, but without any opinion from the trial court.

It is argued on this appeal that the act in question is unconstitutional in two aspects: First, that it deprives the owner of real property of a valuable property right in his land without compensation; and, second, that it makes an unlawful discrimination between various persons or corporations.

It seems that the obvious purpose of the act was to prevent the establishment of any more public cemeteries within a half mile from any reservoir or pond which formed a part of the water supply system of the city of Brooklyn. The appellant contends that the method in which this purpose is expressed is arbitrary, in that the distance of half a mile is taken, without regard to the lay of the land, or the actual question whether or not there was any danger of contamination of the sources of water supply. That the Legislature has power to prevent the erection of any additional public cemeteries within certain prescribed limits seems beyond question. If it has this power, then it may determine for itself, as a measure of absolute precaution, within what distances from sources of public water supply cemeteries may be erected. It might have said 300 feet, or 1,000 feet, but it has said at one-half mile, and it has taken this outside limit as a matter of absolute safety. Considering the sources of water supply of the borough of Brooklyn, ponds, streams, which are largely fed by percolating underground waters, it is impossible to say that the Legislature transcended its limits of power. To sustain an act as constitutional, it is not necessary that proof should be given to show that the act is reasonable, but the burden is upon those who attack the act to establish by proof, unless it is a matter of judicial cognizance, that the act is in its nature not only unreasonable but confiscatory of existing legal rights. Neither do we think that the act is to be condemned on the

ground of unlawful discrimination between persons or corporations within the same locality. The Legislature is presumed to have known just what cemeteries existed within a half mile of the Ridgewood reservoir, and the ponds of the Brooklyn water system, and likewise what burial grounds there were attached to churches and owned by religious corporations. It could have said, as it did say, that there were in its. judgment sufficient of those existing burial grounds, and that there should be no further extensions or additions to them.

[2] It is argued, however, that the act is to be considered in the light of what may be done under it, not what has been done under it. Of course this is true. Then it is argued that under this act it would be unlawful for any man to inter on his farm lands a dead body, even if the place of interment was a private and not a public cemetery. In times long gone by it was the habit of many people to bury their dead on their own lands, and not in public cemeteries; but this custom has disappeared and the objection of the appellant is, in our judgment, unsubstantial. If necessary to uphold the act, it might be so construed as to relate only to places used for general cemetery purposes. In any event, we think we should affirm the judgment, with costs. Judgment affirmed, with costs. All concur.

(158 App. Div. 217.)

PEOPLE v. SILVER.

(Supreme Court, Appellate Division, Second Department. July 25, 1913.) 1. PHYSICIANS AND SURGEONS (§ 6*)-PRACTICE OF DENTISTRY-SINGLE ACT. Under Public Health Law (Laws 1909, c. 49 [Consol. Laws 1909, c. 45]) § 203, par. 5, subd. B, making it a misdemeanor to practice dentistry under a false or assumed name, proof of a single treatment, consisting of filling one tooth, is not sufficient to establish the practice.

[Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.*]

2. INDICTMENT AND INFORMATION (§ 109*)-STATUTORY OFFENSES-BURDEN OF PROOF.

In a prosecution for a statutory offense, all facts necessary to bring the case within the statute must appear.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. 88 286-288; Dec. Dig. § 109.*]

3. PHYSICIANS AND SURGEONS (§ 6*)-PRACTICING DENTISTRY UNDER ASSUMED NAME EVIDENCE.

In a prosecution for aiding and abetting another in the practice of dentistry under a false name, evidence held insufficient to show that the defendant committed any affirmative act which aided the commission of the offense.

[Ed. Note. For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.*]

Harry B. Silver was convicted of aiding and abetting another to practice dentistry under an assumed name. Reversed, and defendant discharged.

See, also, 156 App. Div. 910, 141 N. Y. Supp. 1140.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

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

Charles S. Taber, of Brooklyn, for appellant.

Harry G. Anderson, Asst. Dist. Atty., of New York City (James C. Cropsey, Dist. Atty., and Edward A. Freshman, Asst. Dist. Atty., both of Brooklyn, on the brief), for the People.

STAPLETON, J. The defendant was convicted in the Court of Special Sessions of a misdemeanor in violating section 203 of the Public Health Law (chapter 49 of the Laws of 1909, constituting chapter 45 of the Consolidated Laws). The specific provision of that section, alleged to have been violated, is paragraph 5 of subdivision B., which declares it to be a misdemeanor for a person to practice dentistry under a false or assumed name. The information does not charge that the defendant actually practiced dentistry under a false or assumed name, but it charges that on the 11th day of June, 1912, he aided and abetted one Maschke in so doing.

[1] The evidence showed that the other person gave a single treatment, filling one tooth; secured money therefor; gave a receipt on a bill of Longenecker Bros., signed "Longenecker Bros., by Dr. Maschke." The only evidence relating to the defendant is that Maschke asked the defendant "if he didn't think he would have to do so and so I can't remember exactly what it was-in connection with a plate. that he was fitting in my mouth," and the defendant said, "Yes, Doc, I think you'll have to." The defendant, at the time, was standing at the left of the complaining witness, alongside the operating chair. This was the only evidence of word or deed on defendant's part. There were two signs outside the dental parlors "Longenecker Bros.," across the front of the building; and "Longenecker Bros.," at right angles to the building. The defendant's name did not appear at all. Without objection, the receipt was offered in evidence, and also a bill of sale from David L. Longenecker to the defendant, dated November 13, 1911, by the terms of which the dental business and equipment, together with the good will, were sold to the defendant. Longenecker covenanted in the instrument not to practice in the city. of Greater New York. We do not perceive that there was any evidence that Maschke practiced dentistry under an assumed name or that he practiced it at all.

[2] The information, being for a statutory offense, must state all the facts which constitute the statutory offense, and upon the trial the proof, as well as the allegations, must bring the case within the statute. Wood v. People, 53 N. Y. 511. An essential ingredient of the offense charged was the practice of dentistry. In People v. Firth (Sup.) 142 N. Y. Supp. 634, the court said:

"It is a practice, not an act as distinguished therefrom, with which defendant is charged, and which the statute forbids. Practice results from a series of acts."

The Legislature has demonstrated its capacity to use appropriate and effective words to prevent personation of a skilled practitioner by a single act, in section 174 of the Public Health Law. It used this language: