By the commitment the Sheriff was bound to receive the prisoner into Ms custody, and detain him until he was legally discharged. He had no authority to take him to the county of Trinity, except to place him in confinement there in case the jail of that county was made, by a proper order, the jail of Klamath. If he voluntarily, or without legal authority, took him there for any other purpose, he rendered himself liable for an escape, and this offense was committed in Klamath county as soon as the intention was formed to remove him from that county, as his subsequent acts relate hack to that period, and the offense would 1)0 triable in Klamath county. From the facts that the petitioner Holt disobeyed this commitment—took hjs prisoner to the county seat of Trinity, and instead of placing him there in confinement, went before the County Judge of that county, received from him am order, in conflict with the command of his commitment, to convey Mm to the Lunatic <mask>, and without awaiting the action of the Courts of Klamath, of which only he was an officer, voluntarily obeying the order of the County Judge of a county in which he was not an officer, and proceeding with his prisoner as far as ¡Sacramento", suffering him there to go at large, and giving his consent to his making a visit to Fan Francisco alone, are very suspicious and unexplained circumstances, which present a strong j>rima facie case against Holt. He may have acted in good faith; he may have supposed he was obey*24ing v&Ed and legal orders when he removed Donelly from Klamath and Trinity, but whilst I have no disposition to pre-judge his ease in this preliminary investigation, I am unwilling to reconcile his conduct with innocence. I must, therefore, after having heard the testimony and proofs, under sections 16 and 22 of the Act concerning the writ of habeas corpus, (Compiled laws, p„ 167,) award a warrant to recommit him to custody, and that he be taken before the nearest or most accessible magistrate of the c-eunty of Klamath.


The word “ corporation ” has a definite legal meaning and differs essentially from an “ association,” which may or may not be incorporated. (Matter of Graves, 171 N. Y. 40, 47.) It cannot be soundly or logically argued that two or three trustees of a charitable trust become an “ association ” as the word is used in section 17 *716of the Decedent Estate Law. Any reasonable or clarifying definition of the word “ association ” may not be interpreted to include any person selected by a testator to execute a trust created by him. That term usually means an unincorporated organization, composed of a body of men partaking and assuming in its general form and mode of procedure with the characteristics of a corporation. Such an association cannot be the donee of a bequest, even for charitable purposes. (Pratt v. Roman Catholic Orphan <mask>, 20 App. Div. 352; Matter of Graves, 66 id. 267, 271; revd., 171 N. Y. 40, upon other grounds; Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524.)


The parcel in question was purchased in 1865 to establish a home for orphans. An orphan farm school was built *1081in 1866. In 1869 a charitable corporation was formed with power to purchase and hold real estate and to “establish, maintain, control, govern and manage any orphan house, farm school, industrial school, hospital, <mask>, retreat or other institution necessary and proper for the carrying out of the general object of the said corporation”. In 1897 a home for the aged was constructed. Thereafter, intervenorrespondents, hereinafter referred to as “Wartburg”, established a three-level concept of elderly care consisting of residences providing minimal care, intermediate facilities providing detailed care and a nursing home to provide intensive care. The proposed construction contemplates a fourth level of elderly care in single-family attached units. In each unit the wall behind the bed will be fitted with lifesaving equipment and the wall opposite the bed will be equipped with a closed-circuit television camera. This arrangement will allow the administration of all needed care short of hospitalization without moving the patient and enable a healthy spouse to live with a sick partner. The attachment of the units enables the residents to be close to their neighbors yet independent and facilitates the rendering of care.


Defendant cites Balbuena v IDR Realty LLC (supra) for the proposition that a jury may consider immigration status when future lost wages are in issue. In Balbuena, the High Court pointed out lack of a “green card” is a factor in assessing total lost wages. Further, defendant relies upon the immigration court’s conclusion that improved political conditions in Kosovo bar political <mask> because plaintiff supports the now ruling political party. Given the likely denial of political asylum, any jury determination of future damages based upon costs in the United States would be an unconscionable windfall to plaintiff if he is required to return to his homeland. Doubly compounding this injustice is plaintiffs opposition to adjourning this litigation until the federal immigration proceedings are finalized. Legal Discussion


The testator devises all the rest, residue and remainder of his estate real and personal, (which includes the premises in question,) to The Orphan <mask> Society, to be applied to the charitable purposes, for which the association was established; to take effect immediately after the payment of debts and legacies, if he should leave no child; but if he should leave a child, then to take effect upon the death, intermarriage, or attaining of age of such child.


“ a. A certificate shall be issued where the landlord establishes that he seeks in good faith permanently to withdraw occupied housing accommodations from both the housing and non-housing rental markets without any intent to rent or sell all or any part of the land or structure; and * * * “ (3) where the landlord is a hospital, convent, <mask>, public institution, college, school or any institution operated exclusively for charitable or educational purposes on a nonprofit basis, that the landlord requires the housing accommodations or the land for its own immediate use in connection with its charitable or educational purposes. * * * ” (Emphasis supplied.) The question is whether the two store leases having several years to run preclude the petitioner from securing relief under section 59. That section relates to occupied housing accommodations. The purpose of the law in general is to preserve housing accommodations which petitioner intends to use under the special grant of power to recover possession in good faith for dormitory use. Of course, the commercial space could be converted to educational purposes as respondent suggests if the space were available, but that space is not occupied as housing accommodations. In any event, dealing solely with occupied housing accommodations under section 59 is not inconsistent with the purpose of the act. (Dezelle v. Weaver, N. Y. L. J., Aug. 27, 1957, p. 3, col. 7, Sup. Ct., N. Y. County, Stevens, J., now Presiding Justice, App. Div., 1st Dept.)


application for <mask>, withholding of removal, and relief under the Convention Against Torture (CAT). Acha contends that the IJ’s adverse credibility determination was not automatically fatal to his claim that he is entitled to protection under the CAT. The BIA erred, he explains, by failing to independently analyze the merits of his CAT claim. The Government contends that Acha’s claim is unexhausted, but we disagree. That claim is properly before this court because it was first raised in Acha’s appellate brief before the BIA. See Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). It is true that Acha has abandoned any possible claim that he is entitled to asylum or withholding of removal because he does not challenge the determination that he lacked credibility. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008). But an adverse credibility finding is not determinative of a CAT claim. To establish entitlement to relief under the CAT, an alien must prove it is more likely than not that he will be tortured with the consent or acquiescence of public officials if he returns to the country in question. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The BIA based the denial of Acha’s CAT claim solely on the adverse credibility finding. Because Acha “offered non-testimonial evidence that could independently establish his entitlement to CAT relief,” his lack of credible testimony does not preclude him from meeting his burden for protection under the CAT. Arulnanthy v. Garland, 17 F.4th 586, 598–99 (5th Cir. 2021). Acha’s petition for review is GRANTED and these proceedings are REMANDED to the BIA to address Acha’s claim for protection under the CAT.


In Matter of A-B-, the Attorney General acknowledged that an <mask> applicant may have a cognizable claim based on past harm or fear of future harm by private actors. 28 I. & N. Dec. at 308–09. But an asylum applicant must still establish nexus, and Ms. Hueso-Choto has not argued or presented evidence tying harm to her identity as a Salvadoran woman unable to leave an abusive relationship with her mother. So even if we were to consider this proposed particular social group, this claim would have failed based on the failure to prove a nexus. Appellate Case: 21-9542 Document: 010110632110 Date Filed: 01/14/2022 Page: 7


It is contended on the part of the defense that the liability of the plaintiff as bail was occasioned by his own fault or neglect to protect himself, which his duty to the defendants required him to do in their bebalf, and that for his failure to do so they were relieved from liability to him. It appears that the reason why Warren-was not found and taken on the execution issued against his person, was because he had been taken to the Inebriate <mask>,- at Binghamton, by virtue of an order to that effect made by the county judge of Erie county. That order seems to have been void, and was so treated by the trial court. The action against the plaintiff was commenced April 10, 1879, and on the fourteenth of that month the plaintiff, as such sheriff, caused the return of Warren into his custody, and might have retained him in his custody and exonoration have been obtained by the sheriff, as such bail, prior to April 30, 1879, as his time to answer the complaint did not until then expire. (Id;, §§ 591-595.) On the fifteenth April, and while Warren was in such custody, the defendants' sought to make a formal surrender of him to the sheriff, and if it was in their power to do so it would have been an effectual relief for them, but their relation as bail, by reason of their failure to justify, had terminated and did not exist at the time of such attempted surrender, and it was, therefore, ineffectual as such. (Clapp v. Schutt, 44 N. Y., 104.) The plaintiff did not continue the retention of-Warren in hi's custody, but on the twenty-fourth of .April he accepted an undertaking in behalf of the judgment debtor and discharged him, caused his rearrest on the twenty-eighth of the month by the coroner, and on the next day he was again set at liberty on giving, with sureties, another undertaking, both of which were in the form of that first before mentioned. This arrest was evidently caused with á view to the exoneration of the sheriff as bail, and an application was by him made to the court, and the order granting it was reversed. (Douglass v. Warren and Same v. Haberstro, 19 Hun, 1.) And after the *207plaintiff’s term of office expired, and in February, 1880, be surrendered Warren to the sheriff, by whom he was taken into custody, and again moved for his exoneration as bail, and the order then granting his application was also reversed. (Douglass v. Haberstro, 21 Hun, 320; 82 N. Y., 572.) The opportunity of the plaintiff to obtain, as matter of right, his exoneration as bail, was lost by the discharge of Warren from custody after he was placed there in April, 1879. The taking of the undertakings thereafter received was without authority of law, and the discharge of the judgment debtor thereupon permitted, is treated as an escape, and of this the defendants complain, and allege such release from custody as matter of defense. It cannot well be claimed that the failure of the plaintiff to keep the judgment debtor in custody was caused by any bad'faith on the part of the plaintiff, or with any view to charge the defendants with liability. They denied to themselves the rights and privileges of bail when they refused or neglected to justify. The plaintiff owed to them good faith, hut no active duty to protect them against the consequences of such' omission on their part. It is not, therefore, a defense for them that he may, by a different course of proceeding than that taken by him, have protected himself and them against liability. When the defendants made the undertaking and he accepted it, the judgment debtor was entitled to his discharge from custody. (Code Civil Pro., § 573; Arteaga v. Conner, 88 N. Y., 403.) And it was only after he, by force of the statute, became bail that the sheriff was permitted to surrender or take him into custody. At the time he became such, the defendants ceased to have any rights or privileges as bail, and their liability became his indemnity for the damages that he might legitimately sustain as the consequence of the relation imposed upon him. The fact that the plaintiff misjudged or was illy advised of his legal rights, and therefore failed to observe and resort to the remedies which may have been available to relieve him from liability as bail, does not constitute a defense for the defendants without the support of had fajth on his part towards them, which does not appear to be a feature in the case: As the case is now viewed, the plaintiff was entitled to recover.


The immigration judge issued an oral decision concluding that, due to his criminal history, Pascal was ineligible for <mask> relief and withholding of removal. He then denied Pascal’s claim for CAT relief on the grounds that his fears of persecution were speculative. Pascal appealed to the BIA, stating that the immigra- tion judge erred as a matter of law when he (1) sustained the charges of removability against Pascal, because DHS failed to es- tablish that he was removable as charged, (2) denied Pascal’s re- quest for a continuance because he sought to apply for adjustment of status based on his marriage to a United States citizen, and (3) denied Pascal’s application for relief under CAT. Before the BIA ruled on Pascal’s appeal, Pascal filed a motion to remand proceedings. In the motion, Pascal explained that he had married Ebony Hughes, a United States citizen, several months be- fore the immigration judge’s ruling, and that shortly after their wedding, she had filed an I-130 petition seeking a visa on his behalf. He argued that, although United States Citizenship and Immigra- tion Services had not yet adjudicated the I-130, it entitled him to reopen his deportation proceedings. He argued that he was prima facie eligible for adjustment of status as the beneficiary of a visa petition filed by a United States citizen, and that, though his crimi- nal history rendered him inadmissible by statute, he was prima fa- cie eligible to seek a waiver of inadmissibility in conjunction with his application for adjustment status under INA § 212(h)(1)(B), 8 U.S.C. § 1182(h). USCA11 Case: 20-13993 Date Filed: 02/03/2022 Page: 6 of 10


“ Seventh. I give and bequeath to my executor hereinafter named the sum of One Thousand Dollars ($1000.00) in trust, however, for the following purposes, viz: To invest the same and keep the same invested in some good interest bearing security or securities, for and during the life of the present wife of Milton P. Reese, son • of Evelin P. Reese, and upon the death of the said wife of the said Milton P. Reese, to pay over to the said Milton P. Reese, the said sum of One Thousand Dollars ($1000.00) with all accumulations of interest thereon, and in the event of the death of the said Milton P. Reese prior to the death of his said wife, then said sum of One thousand dollars ($1000.00) together with all accumulations of interest thereon to be divided between The House of the Good Samaritan of Watertown, New York, and The Jefferson County *698Orphan <mask> of Watertown, New York, equally share and share alike.” The Northern New York Trust Company was named as executor and trustee, qualified and has been and is acting as such. Milton P. Reese died December 1, 1930, and Rose B. Reese, referred to in the 7th paragraph of the will as “ the present wife of Milton P. Reese,” died January 9, 1931. No part of the income or principal of the trust fund has been paid out and the trustee now has on hand in the trust fund the $1,000 principal and $940.35 income. The residuary legatees named in the will are, with some conditions, the same as named in said paragraph 7. The trustee asks for the construction or interpretation of the will (1) as to the validity of the trust provision as to principal; (2) as to the validity of the trust provision as to the accumulation of income, and (3) for instructions as to whom the trust fund shall be paid.


*374It is not the ease of an alleged lunatic, within the legal meaning of the term, or of a person who sometimes has understanding and sometimes not; although it is in evidence that respondent spent five years as a patient in a sanitarium or private hospital for mental diseases in Brookline, Massachusetts, from 1881 to 1886, committed thereto by a magistrate upon physician’s certificate, at which time she was thirty-four years old and the mother of one child; she herself testifies that she went to this institution voluntarily, because she had peritonitis and uterine trouble and sought rest and treatment under the care of her friend, Dr. Channing, the superintendent of this retreat or home for persons suffering from nervous disorders. This doctor was not allowed by the court to testify as to her condition mentally or her acts while in his charge, but another physician, Dr. Jelly, of Boston, an alienist of experience, chairman of the Massachusetts State Board of Insanity and supervisor of all the insane hospitals in the state, and examiner in insanity in Suffolk county, was permitted to give in evidence the result of his observation when he saw her in a social way several times during her sojourn in the sanitarium, and he relates that on one occasion shortly before her release he had quite a conversation with her about herself; he was familiar with her history, and he took great interest in her because she was suffering very much, and he and Dr. Channing thought it was a case that ought to get well, and the two physicians talked it over many times, but his own calls at the <mask> were social and he did not there visit her as a patient; her mental malady was acute suicidal melancholia, and this condition might have arisen without any physical ailment and it might have been caused by bodily illness ; but he had not seen her in nearly twenty years.


The dismissal of the complaint at the Circuit was ordered undoubtedly on the ground that the assured did not truthfully answer questions propounded to him in his application for insurance. To the usual question, whether any members of his family, parents, brothers or sisters, had died of or been afflicted with insanity, epilepsy, disease of the heai’t, scrofula, or other hereditary disease, he answered, “no; ” and in answer to the question, as to the disease of which his father died, he answered, “from"a brain disease caused by a hurt.” The case shows that his father had been insane, and twice an inmate of an insane <mask>; and that he died insane; and further, that the assured knew of these facts when he made his application for insurance. The negative answer then to the question, whether his father had died of, or been afflicted with insanity, was untrue. In the ordinary understanding of > words, his father died of insanity, for he died of a chronic affection of the brain which caused insanity. It was to this fact that this branch of the inquiry was directed. Fevers, *599and some other general and some local disturbances of the system, will and often do produce temporary insanity. But a settled disturbance of the mental faculties, continuing for months and years, is quite a different matter. In the former case, that of a fever, for instance; a death occasioned by it would not be a death from insanity, but death from fever. In the latter case, however, a disease of the brain continuing for years, causing periods of insanity and ultimate death, would, according to common understanding, be a death from insanity. When, therefore, the assured answered that his father did not die of insanity, he answered untruly. So, too, when he answered that his father had not been afflicted with insanity, ho answered untruly. But it is urged that his insanity was not in his case an hereditary disease, and, therefore, the answer was not untruthful. Now, insanity, epilepsy, disease of the heart, and scrofula, are held to be of the class of diseases known as hereditary, and the question was, did he die of, or- had he been afflicted with insanity * * * or other hereditary disease? The question was not, in its full scope and meaning, did he die of, or had he been afflicted with hereditary insanity, but did he die of, or had ho been afflicted with insanity or other hereditary disease? The question was answered untruthfully, according to its fair import. It is suggested that the record evidence, that the father of the assured had been adjudged insane, was improperly admitted. It is here unnecessary to consider this point, inasmuch as his insanity was established by other competent and satisfactory evidence. It is also urged by the respondent, that the answer to the effect that the father died of a brain disease “ caused by a hurt ” was untruthful. I confess I am not satisfied with the integrity of this answer under the facts of this case. But its discussion is unnecessary, in view of the conclusion above reached, with reference to other answers, Of course, if the answers above considered were untruthful, the policy was void. Such is the express stipulation contained in the policy itself; and the cases which bear on this point are too numerous and familiar to require citation. It was also provided in the policy, that in case the assured should “ die by his own hand,” then that the policy should be void. He did die undoubtedly by his own hand. He swallowed a fatal dose of laudanum,' and purposely to produce death. But whether he was entirely *600himself, and responsible for the act may be well doubted. Had this been the turning point in the ease, it _ might well be insisted that this was, on all the evidence, a proper question for the jury.


(a) Prior to the execution of said will and said codicil the said residuary legatee induced the deceased to separate from his said wife and children, and to occupy the same apartments occupied by her at a lodging-house situated at the southeast corner of Fifth and Market streets, in the city and county of San Francisco, and thereafter prevailed upon the deceased to continue his said separation and occupation *484of said apartments with her, and he was so occupying them at the times of the execution of said will and said codicil. (b) Prior to the execution of said will and said codicil, and prior to the time he separated from his wife and children, and while he was so living separate from them, as last above stated, the said residuary legatee poisoned the mind of the deceased against the contestants by falsely asserting to the deceased that the contestants had caused him, the deceased, to be placed in an insane <mask> and in the Home for the Inebriates, situated in the city and county of San Francisco, without any cause; and that they, the contestants, were inimical to him, and would again place him in an insane asylum or Home for the Inebriates if he should return and live with his wife and children; that deceased believed these assertions of the residuary legatee, and at the times of the execution of said will and said codicil the deceased was laboring under the delusion that they were true; and the contestants allege that said assertions, each and all of them, were false, and known to the residuary legatee to be such. (c) Prior to the execution of said will and said codicil said residuary legatee abused contestants in the presence of deceased, and told him that contestants had turned him out of his own home and into the streets; that contestants had no love for him, and that she was the only true friend that he had; and that the reason why contestants desired the deceased to live again with his wife and' children was that they, the contestants, might thereby obtain control of his property, and, if they did so, they would then turn him into the streets penniless; and at the times last above mentioned said deceased was laboring under the delusion that these statements were true; and the contestants allege that said assertions, each and all of them, were false, and known to the residuary legatee to be such. (d) While deceased was living at the same apartments as the residuary legatee, as above stated, and for some time prior to the execution of the said will or codicil, and even subsequent thereto, said residuary legatee was not willing that any of the contestants should see the deceased except *485in her presence; and on one occasion she ordered his said wife out of the said apartments, and told deceased, in the presence and hearing of his wife, that he must choose between “that woman,” referring to his, deceased’s, wife, and herself. (e) Prior to the execution of the said will and the codicil said residuary legatee persuaded deceased to transfer to her, without any consideration, certain of his real estate and certain of his personal property; that she concealed all these transfers from contestants, and at the times of the execution of said will and the codicil she had complete control of the deceased’s mind. (/) Said deceased for several years prior to his death was in the habit of using intoxicating liquors to excess, and was easily influenced by anyone who would supply him with such liquors; and that said residuary legatee, contrary to the advice and directions of the physicians of deceased, prior to, at the time of and subsequent to the execution of said will and the codicil, constantly supplied the deceased with intoxicating liquors, and thus obtained such control over deceased as to unduly influence him. RESPONSE OF PROPONENTS.


The decedent, Eldora Cress, was admitted voluntarily to Utica State Hospital on February 3, 1927, when she was 19 years of age. At that time the hospital record indicates she was “ seelusive, quite emotional, cried, wrung her hands and appeared to be in a state of panic.” She expressed no definite delusional ideas of a persecutory nature. On May 7, 1927, a position was obtained for her at Camp Healthmore and she was paroled. She was returned from parole on May 20, 1927, and again paroled on August 16, 1927 to take a position at Onondaga County Orphan <mask>, but because of “ peculiar ” behavior was returned from parole on August 25, 1927. Following treatment administered to her, she showed some improvement.


This conclusion derives no slight support from McCartee v. Orphan <mask> Soc. (9 Cow., 437) and Bowen v. Lease (5 Hill, 221). In the former case the defendant, by the act incorporating it, was empowered to obtain real estate by purchase. It wTas nevertheless incompetent, because of the restrictions of the Statute of Wills, to take real estate by devise, unless those restrictions had been impliedly removed by the terms of its charter. In declaring that such removal had not been effected, Woodwoeth, J. (p. 507), said: “The Statute of Wills prohibits a devise to a corporation. The act incorporating the Orphan Asylum Society declares that they may purchase real estate. In the most extensive signification of the word purchase, it includes a devise, and therefore relates to the subject which by the Statute of Wills is excepted. These statutes, I apprehend, ought to be construed together; and inasmuch as the right claimed is by the former statute expressly denied, it would seem to be more congenial to the spirit of both acts to understand the word purchase in a restricted sense, and as so intended by the legislature.”


*523In our view, the Legislature never intended the RSL to apply to adult care facilities operating under the comprehensive statutory and regulatory scheme provided by Social Services Law article 7. Review of both Social Services Law article 7 and the RSL reveals that the two statutory schemes represent wholly separate and essentially incompatible regulatory schemes. On an elemental level, the RSL applies only to certain multiple dwellings (Administrative Code § YY51-3.0), and since we conclude that the petitioner’s facility is not a multiple dwelling, it is necessarily exempt from the RSL. Multiple Dwelling Law § 4 (7) provides in pertinent part: “A ‘multiple dwelling’ is a dwelling which is either rented, leased let or hired out, to be occupied, or is occupied as the residence or home of three or more families2 living independently of each other * * * A ‘multiple dwelling’ shall not be deemed to include a hospital, convent, monastery, <mask> or public institution * * * For the purpose of this chapter ‘multiple dwellings’ are divided into two classes ‘class A’ and ‘class B’ ” (see also, Administrative Code § YY513.1).


In Coit v. Patchen (77 N. Y., 533), the will was contested, and delusions alleged as to the conduct and affection of testatrix’s, husband, and as to the want of affection for her on the part of some of her children; *101among others, that they desired to confine her in an <mask>, whereby she was led to discriminate against them. The testatrix was a strong-minded woman. She had had a severe sickness some years before making her will; she continued thereafter, however, to manage and control her business, to collect her rents and make improvements. She conversed intelligently. No act of insanity or improvidence as to her business affairs was shown. She was passionately jealous of her husband, and quarreled with him frequently. The children discriminated against sided with the husband, and those favored sided with the mother. Lunacy proceedings were instituted and then stopped by the husband. It was held, that the evidence failed to show any insane delusions, such as rendered testatrix incompetent to make a will. In Children’s Aid Society v. Loveridge (70 N. Y., 387), it was held that the fact that an aged person is forgetful, and at times labors under slight delusions, does not, per se, establish testamentary incapacity.


It is objected by defendant that this section prohibited the performance by Dr. Macdonald of the services as above stated, because he was their holding the position of medical' superintendent of the <mask> for the Insane, and that therefore no compensation for such services could be paid. It is contended that the case is covered by •the phrase in the section “ or other officer of the corporation.” This *91raises tbe question whether the medical superintendent of the New York Oity Asylum for the Insane, is an officer of the city corporation. In Maxmilian v. The Mayor (62 N. Y., 160) it was held that the subordinates appointed by the commissioners of charities and corrections were not agents or servants of the city, for whose negligence the city is liable. This was placed upon the ground that the commissioners of charities and corrections are public officers who discharge duties for the general public .benefit imposed upon them by the legislature; and the fact that the legislature have conferred the power of appointing such commissioners upon officers of the city does not change their relation- or character of public officers so as to make the city responsible for their acts in the performance of their official duties. They are likened to the overseers of the poor of a town who are public officers though getting their right of office from a circumscribed locality; and the court says: “ The acts which they may do are to be done in their capacity as public officers in the discharge of duties laid upon them by the law for the public benefit, - and far removed from acts done by city or town, in its municipal character, in the management of its property for its own profit or advantage.”


Section 830 of the Code of Criminal Procedure serves to implement the provisions for extradition in the Constitution of the United States (art. IV, § 2, subd. 2) which pertains to “ A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State The constitutional mandate is that “ on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime ” (U. S. Const., art. IV, § 2, subd. 2). It is the duty of the State of <mask> to deliver to the demanding State a fugitive from justice. The requirements of the Constitution of the United States and the provisions of section 830 of the Code of Criminal Procedure having been met, there is no discretionary power to refuse the demand for extradition of a fugitive from justice. (People ex rel. Higley v. Millspaw, 281 N. Y. 441; People ex rel. Marshall v. Moore, 167 App. Div. 479, affd. 217 N. Y. 632.)


Contending that equitable doctrines may not be asserted against a school board acting in a governmental capacity (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33 [1984]), petitioner argues that the Commissioner’s ruling was affected by an error of law. But this is not merely a case of laches or estoppel, nor, for that matter, even one of longstanding acquiescence.* Time can shift burdens, and its long passage uninterrupted by protest or challenge raises a justified presumption that matters settled in the distant past were accomplished regularly and agreeably to law. It was not the Ogdensburg District’s burden to show how the <mask> lands were transferred to its jurisdiction, and the case is long past the point where the City School District need prove that it relied to its prejudice on some word or deed of petitioner or its predecessor. Acts bespeak intention, so too does a long course of inaction unveeringly sustained. For nearly a century, the Ogdensburg District has delivered educational services to the residents of the disputed lands without challenge from any quarter. Lisbon Common did not protest in 1901 when the City District first assumed that responsibility. Nor did it assert any claim of jurisdiction in 1943 when a map prepared by the Education Department purported to show that the asylum property lay within its boundaries. Similarly, petitioner asserted no claim of jurisdiction in 1956 when it annexed Lisbon Common, although the map prepared in 1943 allegedly was still in effect. Nor did it raise such a claim in *4141958 when the State Master Plan for School District Reorganization clearly reaffirmed Lisbon Central’s jurisdiction over the former Lisbon Common District. Furthermore, there was no evidence that Lisbon Central or Lisbon Common was ever considered a school district partly within a city until the City of Ogdensburg annexed additional territory in 1979.


It follows by analogy that children who, if adults, would be classified as vagrants or poor persons, are city charges; while children who, if adults, would be classified as disorderly persons, are county charges, and truant children are, in Buffalo, city charges. But the St. Agnes Training School for Girls is not primarily a poorhouse or orphan <mask>; it is, as alleged in the complaint, a reformatory, a correctional institution; nor are delinquent children necessarily to be classed with paupers or vagrants; nor are .poor persons, as such, committed by magistrates to jails or reform*654atories. As pointed out by Gaynor, J., in the Clark case, sufra, a common prostitute is not necessarily ,a vagrant, as she may have a lawful .employment whereby to support herself ; nor does it follow that she is a “ poor person,” pecuniarily, at least. The statutes relative to poor persons have, therefore, no .necessary "nor exclusive application to the question of liability for the support of children committed to this institution.


present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as <mask> applicants— may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “eco- nomic necessity for employment”); see also id. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admis- sion of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5. For the reasons discussed below, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion.


The by-laws provided that neither the corporation nor any officer, member or employee shall receive any salary or other emoluments except such as may be commensurate for services actually rendered; also “ no retreat maintained by this corporation shall be used for any purpose other than for the moral and mental improvement of men or women and no person shall be admitted to any such retreat unless he or she shall be actively or usefully engaged in some creative art and no such person shall be entitled to the privileges of such retreat, unless in the opinion of the executive committee the enjoyment of those privileges shall tend to furnish assistance and inspiration in some creative art that is of benefit to humanity. The executive committee in granting or refusing applications for admission to such retreat shall, in all cases, be governed by the desire of the founders that this corporation contribute to the advancement of mankind by assisting those who, by creative art, have contributed to the mental or moral improvement of humanity, rather than as an <mask> for those who have mistakenly applied their talent.


In reviewing probable cause, what are the standards to be applied by the <mask> State? Petitioner argues that where extradition is challenged, hearsay evidence alone cannot support a finding of probable cause. He would have this court apply a stricter standard than in other probable cause evaluations where he concedes hearsay may be admissible. There are no New York cases squarely addressing the issue raised. Nevertheless, after applying established constitutional standards, this court must reject the argument.


Hew York Infant <mask> v. Roosevelt (35 Hun, 502) was an action for libel, the complaint, as amended, contained allegations in respect to damage, after setting forth the alleged libel, as follows: “ That' by reason thereof, a number of persons, viz., J. Fisher, Charles Parke (whose real first name is unknown to plaintiff) and John Doe and Richard Roe and others, whose names are unknown to plaintiff, who had theretofore been accustomed to contribute and donate sums of money to the plaintiff, ceased to have confidence in his management, and ceased and refused to contribute and donate any further sums of money to the plaintiff.” It was held proper for the court to grant an order requiring the -plaintiff to furnish a bill of particulars of the names of the persons who, by reason of the mat*167ters alleged in the complaint, have ceased or refused to make contributions to the plaintiff.


“An author must be supposed to be consistent with himself; and therefore if, in one place, he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect the work of the legislature is treated in the same manner as that of any other author; and the language of every enactment must be so construed, as far as possible, as to be consistent with every other which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction when the words may have their proper operation without it.” And further (at p. 198): “ Repeal by implication is not favored. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.” To similar effect see Hayden v. Carroll (Ridg. Parl. Cases, 545, 599; Bowen v Lease (5 Hill, 221); O’Flaherty v. McDowell (6 H. of L. Cases, 149, 162); Burnham v. Onderdonk (41 N. Y., 425); Henderson’s Tobacco (11 Wall., 652); Taylor v. Taylor (10 Minn., *479107); McCartee v. Orphan <mask> (9 Cow., 437, 507); Escott v. Mastin (4 Moore, P. C. C., 104,130); Bruce v. Schuyler (9 Ill., 221); Hill v. Hall (L. R., 1 Ex. D., 414); Bishop on Written Laws, § 119.


Petitioner is incorporated under section 7 of the Benevolent Orders Law of the State of Hew York. Its purposes, insofar as pertinent here, are stated as follows in its charter: “ To build and maintain a building for its meetings and the meetings of the bodies comprising this corporation, or subordinate bodies of the Masonic Fraternity, and for the accommodation of other fraternal bodies or associations; to receive and maintain a fund or funds of real or personal property or both and subject to the restrictions and limitations herein set forth to use and apply the whole or any part of the income therefrom and the principal thereof exclusively for the foregoing purposes; provided, however, that the entire net income shall be exclusively applied or used to build, furnish and maintain an <mask> or asylums, a home or homes, a school or schools, for the free education or relief of the members of the fraternities comprising this corporation or for the relief, support and care of worthy and indigent members of such fraternities, their wives, widows and orphans, and provided that no part of such income or such principal shall enure to the benefit of any private individual (except that reasonable compensation may be paid for services rendered to or for the corporation affecting one or more of its purposes), and no member, trustee, officer, or any private individual shall be entitled to share in the distribution of the corporate assets on dissolution of the corporation; nor shall any part be used for the carrying on of propaganda or otherwise attempting to influence legislation or participating in or intervening in any political campaign on behalf of any candidate for public office.”


The complaint sets forth the petition and certificate of the two medical examiners presented' to the county judge of Eranklin county on the application of the defendant to have the plaintiff adjudged to be insane and to be committed to an <mask>, and alleges that they were insufficient to confer jurisdiction on the county judge to make the order of commitment.


As a part of the application, which was nominally for admission to the Masonic Home, was an agreement which she signed and which read in part as follows: “ As a condition for admission to the Masonic Home, I hereby agree * * * to transfer to the Trustees of the Masonic Hall and <mask> Fund all property I may now be possessed of, and all which may hereafter come to me.”


The court will now consider the other issue submitted for its determination, viz., the validity and effect of the assignment executed by the remainderman Cornelia. On May 12, 1951, when she was 83 years of age, the said Cornelia was admitted to the Masonic Home at Utica, New York, which is owned by respondent, trustees of the Masonic Hall and <mask> Fund, where she remained as a guest until the date of her death in 1963. At the time of her admission and in accordance with the rules and regulations of the home she executed an ‘ ‘ Agreement by Applicant ” wherein she agreed “ to transfer to the Trustees of the Masonic Hall and Asylum Fund, on their demand, any and all my property, both real and personal, of which I may now be possessed, or which may hereafter come to me, or to which I may become entitled.” It is undisputed that upon her admission to the said home, pursuant to demand made upon her, the said Cornelia transferred and assigned to respondent, trustees of the Masonic Hall and Asylum Fund, all of the property she then owned or was entitled to, in the value of about $900. The respondent alleges in its answer that said transfer of property was one of the considerations for admission to the home and they are entitled to the remainder interest of Cornelia in the trust fund by virtue of the aforesaid assignment and the demand which was made and understood to cover all property “ of which I may now be possessed, or which may hereafter come to me, or to which I may become entitled.” (Emphasis supplied.) The special guardian appearing on behalf of the unknown distribu*1095tees of 'Cornelia, on the other hand, contends that the said assignment was ineffective to transfer her remainder interest in the trust to respondent as no express demand therefor was made during her lifetime. Accordingly, he recommends that “ the principal and accrued income after payment as enumerated in the accounting, of the subject trust fund be set aside for the heirs of said Cornelia Van Zandt Freed ”.


Where the validity and effect of certain dispositions of personal property are put in issue, it is the duty of the surrogate to pass upon the issues, *546before admitting the will to probate. (Effray v. Foundling <mask>, 5 Redf. 557; Hagenmeyer v. Hanselman, 2 Dem. 87; Potter v. McAlpine, 3 Dem. 108; Pfaler v. Raberg, 3 Dem. 360; Lynch v. Loretts, 4 Dem. 312; Wardlow v. Home for Incurables, 4 Dem. 473; Matter of Tifford, 5 Dem. 524; Ludlam v. Holman, 6 Dem. 194; Matter of Pettit, 6 Dem. 391; Matter of Havens, 6 Dem. 456, 2 N. Y. Supp. 639; Matter of Hall, 39 Misc. 281; Matter of Zimmerman, 22 Misc. 411; Matter of Mullen, 25 Misc. 253; Matter of Counrod, 59 N. Y. Supp. 164; Matter of Howland, 37 Misc. 114; Matter of Probate of Will of Kelman, 126 N. Y. 75.)


under oath, and considering the circum- stances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the De- partment of State on country condi- tions), and any inaccuracies or false- hoods in such statements, without re- gard to whether an inconsistency, inac- curacy, or falsehood goes to the heart of the applicant’s claim, or any other rele- vant factor. 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). And, after consider- ing the totality of the circumstances, the IJ must support her ad- verse credibility determination with “specific, cogent reasons.” Forgue, 401 F.3d at 1287. So, while “inaccuracies and falsehoods” don’t have to be material to the basis for the application to support an adverse credibility determination, they still have to be consid- ered in context and they still must make sense as reasons to disbe- lieve the applicant. Taking each of the IJ’s offered “inconsistencies” in turn re- veals that, when considered within the totality of the circum- stances, they cannot be used to provide the requisite specific, co- gent reasons for an adverse credibility determination. Before I explain why, I note that we must remember that Ahmed seeks <mask> on the basis that he has been persecuted for USCA11 Case: 20-12580 Date Filed: 01/28/2022 Page: 16 of 20


To corroborate his statements that he had nothing to do with the disposition of the property, he introduces a witness, Dr. Thomas Grant, who testified that he knew Mrs. Ingram, and also Dr. Hatch, the latter of whom lived in the same house for awhile with them. Grant saw Mrs. Ingram on Polk street before she went to Paso Robles Springs, and she said she had everything all fixed in case she did not come back; she left everything to Dr. Hatch, he and his family had been kind to her; only $5 to her husband; he had been unkind to her; all he wanted was her property; he had tried to get her in the <mask>; she left $5 each to her nephews; they had been unkind; this was about the sum and substance of what she said to the witness Grant, according to his testimony. She asked him to remember what she told him in case she didn't come back from the springs. Upon the *249cross-examination of this witness it appeared' that his relations with Dr. Hatch were quite friendly, and that he went to see Mrs. Ingram at the instance of and in company with him. What was the purpose of this joint visit? Although this witness, according to his statement, had been at one time a regular physician, it is many years since he pursued that calling as a profession, and not at all in this city, his nearest connection with the practice being that he deals in medicines in a small way, being occupied at other times in the building of houses, and his medical attentions to Mrs. Ingram were of the slenderest character.


Plaintiffs rely upon section 2(g)(6) of the Code of the Rent Stabilization Association, which code was adopted pursuant to powers granted the association by the Rent Stabilization Law. Section 2(g)(6) was adopted as an amendment to the code, purportedly "in accordance with the provisions of Chapter 576 of the Laws of 1974 of the State of New York.” Section 2(g)(6) provides that: "Notwithstanding the foregoing definition of 'dwelling units’, this Code shall not apply to the following: * * * Dwelling units owned or operated by a hospital, convent, monastery, <mask>, public institution, or college or school dormitory or any institution operated exclusively for charitable or educational purposes on a non-profit basis.”


While I realize that a substantial argument might be made from which directly opposite conclusions would be warranted than those reached by me, along the lines of an enfeebled mind, long confinement in the lunatic <mask>, and certain eccentricities developed either through the encroachments of old age, or from such feebleness and enforced confinement and the dis*19tressing effect such, circumstances might have made upon the decedent who was a woman of an extremely delicate and nervous temperament, and that the beneficiaries under this will are not blood relatives or relatives by marriage, and that such beneficiaries have received in the course of their association with the deceased many substantial gifts of large sums of money, with all the pathos and struggles which mark the life history of this woman, it nevertheless seems to me that the deceased, from motives of affection and gratitude, chose the Stuarts to be the objects of her bounty, rather than her sister, and this view of the case, I am constrained to follow.


So, here the bar invoked by the petitioner must be raised in Rhode Island. To an extent, the restricted powers which may be exercised in an <mask> State in extradition reflects the demands of the Federal system and the comity which must be always recognized between the States of the Union. The process of extradition would be imperiled if the asylum State could, prior to the proceedings in the demanding State, decide the validity of the indictment or the compliance of State procedures with the constitutional safeguards. The writ is, therefore, dismissed, the application denied, and the petitioner remanded.


was not long lasting; (3) the abuse was not as extensive as in A-R-C-G-; (4) she moved out of her former partner’s home; and (5) she took her former partner to court and received child support and a protective order. The BIA also recognized that the Attorney General’s decision in A-B-I overruled A-R-C-G-. Citing A-B-I, it reiterated that claims involving domestic violence will generally not qualify for asylum unless the violence was inflicted “on account of” a protected ground. And that protected ground, in turn, “must exist independently” of the harm from which the <mask> flees. The BIA concluded that Jaco’s group failed this requirement because it was defined by the very persecution from which she flees. Quoting A-B-I, it determined that the group was “effectively defined to consist of women . . . who are victims of domestic abuse because the inability ‘to leave’ [is] created by harm or threatened harm.” See 27 I. & N. Dec. at 334–35 (alteration in original). Finally, the BIA held that the proposed group was neither particularized nor recognized in society as a distinct group. Because Jaco had failed to show a cognizable particular social group, the BIA found it unnecessary to address whether the Honduran government was unwilling or unable to protect her. After affirming its prior decision that CAT relief is unavailable, the BIA denied the motion for reconsideration and dismissed the appeal. III. Jaco now petitions from the BIA’s decision dismissing her appeal and denying her timely motion for reconsideration. Our jurisdiction is governed by 8 U.S.C. § 1252. Normally, petitioners wishing to challenge both the dismissal of an appeal and the denial of a motion for reconsideration must file separate petitions. See Kane v. Holder, 581 F.3d 231, 237 n.14 (5th Cir. 2009); 8 U.S.C. § 1252(b)(6). Here, however, because of our prior remand to the BIA, the Board addressed both Jaco’s appeal and her motion to reconsider in


tells Customs and Border Protection that he or she wishes to apply for asy- lum, fears persecution or torture, or fears returning to his or her home coun- try. While detained by Customs and Border Patrol, the <mask> re- ceives information about the credible fear interview process. Ordinarily, an asylum-seeker waits 48 hours to participate in the interview, but he or she may waive that waiting period. See U.S. CITIZEN AND IMMIGRATION SERVICES, QUESTIONS AND ANSWERS, CREDIBLE FEAR SCREENING, https://www.uscis.gov/humanitarian/refugees-and- asylum/asylum/questions-and-answers-credible-fear-screening (last visited Dec. 29, 2021). USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 4 of 11


(Department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because the Department failed to investigate mother’s filing of an ICWA-020 form stating either a parent or the child possessed an identification card indicating <mask> or membership in an Indian tribe, which conflicted with another ICWA-020 form filed on the behalf of mother the same day indicating she had no Indian heritage. Specifically, father complains the Department failed to interview mother and her extended relatives and also failed to review the identification card and contact pertinent Indian tribes. For the reasons explained herein, we find the record does not establish the Department and juvenile court complied with their continuing duty to investigate whether the minor was an Indian child within the meaning of ICWA. Accordingly, we will conditionally reverse and issue a limited remand directing the Department and court to comply with ICWA. I. BACKGROUND Because father’s challenge on appeal is limited to ICWA compliance, we limit our recitation of the facts and procedural history to those necessary to determine that issue. Following the minor’s premature birth and report that he had tested positive for methamphetamine and cannabis, mother and father agreed to a protective emergency placement.2 However, neither parent complied with their informal services plan, resulting in the filing of a dependency petition. At an interview on December 17, 2019, both parents denied they had any Native American ancestry. The parents were then present at the 9:00 a.m. detention hearing on


Additional instructions to the voter concerning when the ballot should be mailed so as to ensure timely receipt by the Board *521of Elections and the requisite “statement of absentee voter” by which the voter confirms his/her qualifications to vote (<mask>, registered voter, inability to appear personally on election day, absence of intention to vote elsewhere or a prior vote in the subject election, and absence of impediment to voting) appear next. Finally, four blank lines appear on the envelope. These four lines are labeled as follows:


When he entered his plea, Olvera signed a form with boilerplate language about immigration consequences: he acknowledged that the law concerning *1115the effect of "a criminal offense of any kind on my legal status as a non-citizen will change from time to time," so "I hereby expressly assume that my plea ... will, now or later, result in my deportation, exclusion from admission or readmission," and "denial of naturalization and <mask>." He acknowledged that his attorney "has gone over this form with me." His attorney represented that he "explained the direct and indirect consequences of this plea," to Olvera. At the change of plea hearing, Olvera again acknowledged that he went over the form with his attorney and an interpreter. There was no specific colloquy about immigration consequences.


It appears from the evidence that he had not visited Nassau previous to 1937 except in one or two isolated instances. Apparently his original intent when he built the house there in 1937 was to maintain it for his winter vacations. His children continued to be educated at schools in New York. But the true nature of his intent not to abandon his New York domicile is found in his own declarations as described by his uncle, who accompanied, him on his last trip abroad just before his death. His uncle testified that the testator had spoken of the possibility of his intention of changing his residence to Nassau. The testator declared, however, that it was not decisive, that it gave him a period of five years to acquire <mask> in a foreign country and “ I have got that long to make up my mind finally what I will do.” During the few days before his death he stated that he had not decided definitely to change his domicile. He had often mentioned that New York city was his home.


On cross-examination by Mr. Piasecki, Hotz said that the purpose of the checkpoint was related to immigration, checking <mask> and whether noncitizens were legally in the country. He was reasonably certain that Jock was a United States citizen when he said that he was. He took possession of Jock’s license *460during the questions, as a precautionary measure so that the agents would have a motorist’s identification if he were to flee. He also used the license to determine where Jock lived. He remembered asking the passenger about his citizenship, but does not recall whether he asked for identification. Hotz did not recall Jock’s residence address. Hotz asked Jock where he was coming from, and was told “Hogansburg.”


The petitioner has heretofore voted in the city of New York and heretofore produced his naturalization papers. Section 170 of the Election Law prescribed the procedure by which a naturalized citizen desiring to register should satisfy the board of the fact of his naturalization. In the first instance, he is required to produce the naturalization papers upon which his <mask> depends. However, in 1952 the Legislature enacted an important amendment (L. 1952, ch. 169) which dispensed with the production of the naturalization papers if the person seeking registration had theretofore produced the papers before an appropriate board. The amendment reads:


*1082Mr. Justice Butledge (p. 167) in another concurring opinion in Schneider man, although concerned with canceling <mask>, too, spoke of the limitations upon the Government — and, yes, the courts themselves — in denying citizenship to an alien: “No citizen with such a threat hanging over his head could be free. If he belonged to ‘ off-color ’ organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could not open his mouth without fear his words would be held against him. For whatever he might say or whatever any such organization might advocate could be hauled forth at any time to show ‘ continuity ’ of belief from the day of his admission, or ‘ concealment ’ at that time. Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is not citizenship. Nor is it adjudication.”


Jury service is an obligation of <mask> and its incidence is to be borne as widely as possible. The creation of a permanent pool changes the obligation into a burden to be avoided by all who cannot afford the demands that repetitive service entails. It is unfair to those members of the community who perform this duty willingly; it is unfair to the defendants who *883are entitled to a judgment from a cross section of the community.


It will now be proper to observe the course and practice followed by the superior court of the city of New York in matters of naturalization. Prior to 1858 the preliminary proofs and the oath of allegiance of the applicants were in many, if not in most, cases written out by the clerk and kept upon loose sheets of paper. The declarations of intention, however, were, since November, 1846, kept in a separate book. These loose papers were filed away, after the action of the court upon them, as of the date of the respective applications and kept in the' office of the clerk in the same manner as other records were preserved. In passing upon each application the judge holding the court neither signed the papers, nor did he affix his .initials, but the clerk was required to- note the fact of the judgment of admission by an entry in the minutes, lip to 1858 these entries were made in the minutes; but in that year, no doubt in consequence of the large increase in the number of applications, the practice was changed. Printed blanks came into general use for making the preliminary proofs and taking the oath of allegiance. If the applicant and his witness, after having been duly sworn to make true answers, answered all questions put to them to the satisfaction of the court, the presiding judge, on admitting the applicant to <mask>, signified the fact of having made such adjudication by affixing the initials of his name to the application, and thereupon handed the papers to the clerk, with directions to do whatever might remain to be done; the clerk then,- in pursuance of such adjudication, fiat and directions, administered, and the applicant in open court took, the oath of allegiance, and a certificate was given to the applicant as evidence of the fact of his admission. The papers containing the fiat of the presiding judge, as aforesaid, were thereupon indorsed and filed among the records of the court as a part thereof, and marked filed as of the date of the respective application. An entry was also made in a book, kept in *16alphabetical order, showing the date of the admission, the name of the applicant, his nationality, the name of his witness and the residence of such witness, and if the admission was ordered without a previous declaration of intention, either on a discharge from the army or on the ground that the applicant had arrived in this country during his minority, such fact was specially alluded to. As often as necessary a new book of like character was opened upon the same-plan. All the books thus kept were permanently preserved among the records of the court. The first thus opened and kept bears upon the outside the simple title or label “ Naturalization.” The one next in order of time is labeled H Naturalization Index.” Those opened since October 16, 1868, bear the title “ Naturalization Record.” The practice, however, of braking an entry in the regular minute book was discontinued. The course and practice as now detailed was observed by the court for the following fifteen years, and under it the promovents now before the court were admitted in 1868.


There is no provision in article 4 of the Family Court Act which makes residence or domicile a prerequisite to the commencement of a support proceeding. It is a well-established principle of law that a party may subject himself to the jurisdiction of a court for the purpose of commencing a proceeding before such court, regardless of his residence or <mask>. (Anderson v. N. V. Transandine Handelmaatschappij, 28 N. Y. S. 2d 547, affd. 263 App. Div. 705, affd. 289 N. Y. 9 [1942] ; “England” v. “England”, 205 Misc 2d 645; Catalanotto v. Palazzolo, 46 Misc 2d 381.) The fact that dependents may be residents or even citizens of a foreign country does not in any way diminish the husband’s or father’s obligation to support them. The party liable for support should not be able to avoid this responsibility by claiming that the foreign residence or citizenship of his dependents automatically precludes them from the relief which they seek.


*282Hopefully, as these and other issues are considered in the future, our appellate courts will provide needed guidance. In its absence, however, the trial courts must continue to deal with the issue on a case-by-case basis, with due consideration for the underlying principle of both Batson and Kern (supra). Plainly, those cases preclude purposeful discrimination in the selection of a jury, which not only violates the defendant’s due process and equal protection rights when practiced by the prosecution, but also, when committed by defense counsel, impinges upon the civil rights of citizens, which includes jury service as a privilege of <mask> and as a means of participation in government.


The motion to dismiss, based upon application of the doctrine of collateral estoppel grows out of the fact that this plaintiff previously commenced an action in the United States District Court for the Western District of New York against the same defendants for the same relief, upon the same grounds alleged here and that the complaint was dismissed there upon the ground inter alia thatf< the complaint does not contain allegations sufficient to state a cause of action arising under and involving the interpretation and application of the Railway Labor Act as amended ”. Leaving aside the question of whether that earlier determination fits within the doctrine of collateral estoppel, rather than that of res judicata, it could only act as a bar to this action if it constituted a final adjudication on the merits. However, the District Court dismissed for lack of jurisdiction of the subject matter in the absence of a diversity of <mask> of the parties, the lack of any jurisdiction conferred pursuant to sections 1331 and 1337 of title 28 of the United States Code, and, as stated, the lack of allegations sufficient to state a cause of action arising under and involving an interpretation of a Federal statute, i.e., the Railway Labor Act. The argument of the defendants is that Federal laws control this case because it involves a collective bargaining representative, Division 421 of the Brotherhood of Locomotive Engineers, certified by the National Mediation Board, under the Railway Labor Act, as the representative of a class of employees in the service of an employer engaged in interstate commerce, and is argued, a cause of action arising out of a Federal labor statute, the Railway Labor Act. This last refers to the duty of fair representation, which the defendants claim arises from Federal law. Concluding from these propositions that Federal law applies exclusively, the defendants reason that the earlier dismissal by the District Court is a conclusive determination that no cause of action exists under Federal law and that therefore none can exist under State law.


reinstatement of a question regarding <mask> on the 2020 decennial census questionnaire. The letter stated that citizenship data is critical to the Department of Justice’s enforcement of the Voting Rights Act and its protections against racial discrimination in voting. The Department ex- plained that, to enforce the Act’s requirements, it needs a reliable calcula- tion of the citizen voting-age population in localities where voting rights violations are alleged or suspected, and that the census is the most appro- priate vehicle for collecting that data. Approximately three months later, on March 26, 2018, the Secretary announced that he was reinstating a citizenship question on the census in response to the Department’s re- quest. On January 8, 2019, the Committee sent a letter to the Secretary re- questing an extremely broad set of documents regarding the Secretary’s decision to include the citizenship question on the census questionnaire. On February 12, 2019, the Committee sent a letter to the Acting Attorney General requesting similar documents regarding the Department of Jus- tice’s role in that decision. The Departments promptly began producing thousands of responsive documents to the Committee on a rolling basis, and made multiple witnesses available for interviews. Despite these efforts, the Committee issued separate subpoenas to the Secretary and me on April 2, 2019, seeking many of the documents re- quested in the Committee’s January 8 and February 12 letters. The sub- poena issued to the Secretary requested eleven specific documents, in- cluding e-mails between the Secretary and his close advisers, as well as e-mails and documents produced by or sent to an attorney in the Depart- ment of Commerce’s Office of General Counsel. The subpoena also requested all communications from January 20, 2017 through December 12, 2017 among Department of Commerce officials or between such officials and outside entities concerning the citizenship question. The subpoena issued to me requested a memorandum and note to the Acting Assistant Attorney General for the Department of Justice’s Civil Rights Division from the same Department of Commerce attorney regarding the citizenship question. The subpoena also requested all documents and communications from January 20, 2017 through December 12, 2017 within the Department of Justice and with outside entities regarding the Department of Justice’s request to include the citizenship question.


In United States v. Keller, decided in 1882, in the Circuit Court for the Southern District of Illinois, it was held, that by the marriage of a resident alien woman with a naturalized citizen, she, as well as her infant son, dwelling in this country, became citizens of the United States as fully as if they had become such by the special mode prescribed by the naturalization laws. In that case Keller was indicted for illegal voting. Eis parents were aliens, being subjects of Prussia, and his father died without ever having been in this country. Subsequently his mother removed to the United States, bringing her infant son with her, and in 1868 she intermarried with a naturalized citizen. Keller claimed, as he was under the age of twenty-one years when his mother married a citizen of this country, he, by force of the act of 1855, was immediately invested with the privileges of <mask>, and as he was otherwise qualified by the laws of the State of Illinois to become an elector, he was not guilty of any offense. As this decision was rendered by Mr. Justice HaelaN, one of the highest judicial officers in the federal system of courts, and involves the construction of an act of congress, we readily adopt his views as they are in accord with our own interpretation of the same laws. As a general rule, when the question to be determined arises as to the proper construction to be placed upon an act of congress the State courts follow the interpretation given to the same by the federal courts.


March 18, 2020, wherein through their attorneys they filed ICWA-020 forms denying heritage, and the court determined the minor was not an Indian child and ICWA did not apply. The same day at 3:31 p.m., mother (acting in pro per) filed another ICWA-020 form with a box checked that indicated “Either parent or the child possesses an Indian identification card indicating membership or <mask> in an Indian tribe.” However, mother failed to complete the associated portion of this form where she should have identified the name of a tribe or a membership/citizenship number. According to the combined jurisdiction and disposition report, the next week on March 24, 2020, both mother and father were interviewed by the Department and again denied having any Native American ancestry. This report did not acknowledge mother’s statement under the penalty of perjury on the second ICWA-020 form that either mother or the minor possessed an “Indian identification card indicating membership or citizenship in an Indian tribe.” This report also noted that the Department had located and interviewed a paternal grandmother, T.G., and a maternal great-grandmother, T.D., but neither of them were able to provide a secure placement for the minor. The report did not indicate whether the social worker discussed Native American ancestry with either of these extended family relatives. The Department then filed an amended dependency petition preceding the jurisdiction and disposition hearing, which attached a copy of an ICWA-010(A) form completed August 21, 2020. This form identified the parents as the individuals interviewed in order to determine there was “no reason to believe the child is or may be an Indian child.” It also did not acknowledge mother’s second ICWA-020 form or any efforts undertaken to resolve the issues created by it. On September 2, 2020, the juvenile court sustained the dependency petition and ordered reunification services for the parents. Nothing in the record indicates the court engaged in a new consideration of ICWA in light of mother’s filing of the second ICWA- 020 form, including whether the Department’s successive interview with the parents a


Section 1780 of the Code of Civil Procedure makes provision for the cases in which a foreign corporation may be sued in this State. It provides, first, that an action against a foreign corporation may be maintained by a resident of the State or by a domestic corporation for any cause of action ; secondly, that an action against a foreign corporation may be maintained by another foreign corporation or by a non-resident in one of the following cases only: 1st. *392Where the action is brought to recover damages for the breach of a contract made within the'State, or relating to property situated within the State at the time of the making thereof. 2d. Where it is brought to recover real property situated within the State, or a chattel which is replevied within the State; and 3d. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State. It is apparent that this action is not one within either of those provisions. It is brought for a cause of action which arose in the State of Pennsylvania upon a contract made and wholly to be performed, and the- allóged breach of which occurred, within that State. Both parties being foreign corporations and each having its place of business in another State, are of course non-residents of this State. In Ervin v. Oregon Navigation Company (28 Hun, 269) this court held that since the adoption of section 1780 of the Code a foreign corporation can only be sued by a non-resident in one of the cases mentioned therein. But it is insisted by the counsel for the appellant that section 1780 is in conflict with the provisions of the Constitution of the United States, which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. But without considering fully the elaborate and able arguments of the counsel upon that question, it is enough to say that the plaintiff in this case, being a corporation of Pennsylvania, is not, within the meaning of the Constitution, a citizen of that or any other State, and therefore may not claim in another State whatever rights and immunities are preserved by that instrument to the citizens of all the States. By section 1 of article 14 of the amendments to the Constitution, <mask> is expressly defined and declared as follows: “ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”


*882Defendant asserts that, when he recently attempted to apply for U.S. <mask>, he was informed that his “prior conviction posed a problem in terms of immigration.” Specifically, defendant asserts that his bail jumping conviction constitutes an “aggravated felony” under the relevant immigration laws. Defendant also asserts that an aggravated felony conviction bars him from obtaining U.S. citizenship, and that such a conviction will also result in his deportation. Therefore, defendant seeks to vacate his judgment of conviction.


It appeared that at the general election held at the place mentioned in the indictment the defendant offered to vote, and hex-right being challenged she- took the usual and requisite oath, and the ballots offex-ed by her wex-e received by the inspectors and deposited in the ballot boxes. The statute, pursuant to which the prosecution was instituted and had, provides that “ any person not duly qualified to vote under the laws of this State, who shall knowingly vote or offer to vote at any general or special town or charter *200election in this State, shall be adjudged guilty of a misdemeanor, and on conviction shall be imprisoned for a period not exceeding six months,” etc. The disqualification in view to support the charge of offense was that the defendant was a female. It is contended that the fact so relied upon is not alleged in the indictment, and that the reference made to the fact that the person charged was a female was mere matter of description rather than of allegation. "We think the indictment was sufficient in that respect. And that founded upon that fact assuming that it was a disqualification the offense was sufficiently described. It is true that a statement .of the facts constituting an alleged crime is essential to support an indictment. (Code Crim. Pro., § 275.) And such has been the long standing rule founded upon the reason that by a presentment so made the party should be well advised of the character of the offense charged^against him. (Wood v. People, 53 N. Y., 511; People v. Wilber, 4 Park. Cr. R., 19; People v. Standish, 6 id., 111; Pearce v. State, 1 Sneed, 63; 60 Am. Dec. 135.) The sufficiency of statement is dependent upon the information it may furnish, and when an offense may result from one of two or more causes, the one upon which the alleged crime is sought to be predicated must be stated. (People v. Dumar, 106 N. Y., 502.) In the case at bar the alleged crime was illegal voting, and the alleged disqualification was that the defendant was a female. This was a sufficient statement of the facts constituting and which produced the offense upon the assumption before mentioned. (Hamilton v. People, 57 Barb., 625.) It is, however, said that the defendant does not come within the “ meaning of ” a person not duly qualified to vote under the laws of this State, “ because the provision of the Constitution defining the qualification of voters is not law as that term is ordinarily applied, and therefore the statute creating the crime and providing for its punishment, has no application to the case presented by the indictment. This view cannot be supported. The provision referred to of the Constitution is the law of the State upon that subject and must be so treated as effectually as if it were engrafted into a statute, and the fact that the section of the act of 1842, which contained the word “ male,” was repealed by the act of 1847 (chap. 240), and that since then there has been no statute on the subject embracing that term by way of limitation, we think has no significance on *201the question now under consideration. That provision of the Constitution required no legislation to give effect to it as a governing rule of law, nor can we adopt the view of the learned counsel for the defense, that persons not designated in that provision of the Constitution are not excluded from the right to vote. The view thus contended for would render the provision substantially nugatory, except as a guaranty to those so designated against disfranchising legislation, and lead to the conclusion that while it declares that male citizens of the requisite term of <mask>, inhabitancy and residence, are entitled to vote at elections, it has the effect to exclude none from the exercise of the elective franchise (Const., art. 2, § 1), and that no persons are denied such right other than such as may come within the second section of that article and those who may by statute be disqualified.


The full text of Code of Civil Procedure section 155, subdivision (a), reads: "A superior court has jurisdiction under California law to make judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101(a)(27)(J) and 8 C.F.R. Sec. 204.11 ) (July 6, 2009), which includes, but is not limited to, the juvenile, probate, and family court divisions of the superior court. These courts may make the findings necessary to enable a child to petition the United States <mask> and Immigration Service for classification as a special immigrant juvenile pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code."


The experts disagreed, however, upon the ultimate question in this case, i.e., the Swiss rule applicable to the distribution of the Swiss realty of a person of hybrid nationality domiciled not in Switzerland but in the country of his second <mask>. Under Swiss law the decedent herein was vested with dual nationality. The law of that country provides that a citizen, in order to divest himself of the cloak of citizenship must formally renounce his allegiance in the manner prescribed by statute. Such formal act of renunciation was not performed by the decedent. The assumption of a new allegiance by naturalization in the United States did not of itself suffice to free him of fealty to Switzerland. In such event, he became a *1026person of twin or dual citizenship, a status which is recognized under Swiss law (see e.g., Matter of Community of Feldis, 24 B. E. [1] 312 [Switz.] ).


There appears to be no dispute that the plaintiff, a foreign corporation, was at the time of contract an unlicensed corporation doing business in this State. A first litigation was instituted in the Federal jurisdiction where the action was dismissed, the court finding that there was no such diversity of <mask> as would confer jurisdiction upon that court, since under the pertinent statute the plaintiff had a principal place of business in this State. In its decision the court there declared that the cause of action before it was one in conversion. In any event, a determination on the question of diversity of citizenship is not a determination of the issues here involved. Thereafter, this action was commenced in this court upon an original complaint in which it was alleged that the plaintiff was and is the owner and entitled to the immediate possession of certain *824moneys advanced by plaintiff and to be received and held in trust by the defendant for the plaintiff in connection with the importation and sale of certain food products pursuant to a written agreement. Thereafter, the plaintiff demanded that the defendant return such moneys to the plaintiff and the defendant failed and refused to do so. Upon motion of the defendant the complaint was dismissed and on appeal the order of dismissal was unanimously modified on the law and the facts and in the exercise of discretion to delete the provision of the order directing the entry of judgment and to provide that the plaintiff shall have leave to serve an amended complaint. In the course of its decision the court stated (13 A D 2d 919-920): “ The plaintiff, a foreign corporation, doing business in the State, may not maintain this action on the basis of the contract made with the defendant in this State; it appearing that it did not, prior to the maldng of such contract obtain a certificate of authority to do business within the State. (General Corporation Law, § 218.) ” There was no doubt, however, that the plaintiff claimed that the action was not brought on the contract but upon a claim of conversion of moneys belonging to the plaintiff. Concerning that contention the court stated (p. 920): “It is clear, however, that the particular cause of action pleaded here is one upon contract. The writing annexed to the complaint, constituting in whole or in part the contract between the parties, contains no provision justifying plaintiff’s allegation that the moneys advanced were received and held in trust by defendant for plaintiff. The plaintiff should have been given leave, however, to plead a cause of action in conversion if he has such a cause.” And it further stated (p. 920): “It is true that the statute (§ 218) would not be available as a defense to an action grounded solely in conversion.” An amended complaint was served and it is this pleading which is now under attack. It is to be noted that the Appellate Division decision referred to the writing attached to the original complaint as “ constituting in whole or in part the contract between the parties ”. In the amended complaint the plaintiff appears to allege upon a contract which is broader than the writing that was attached to the original complaint and it does not appear that any writing is attached to the amended complaint. While the writing contains no provision justifying an allegation that the moneys advanced were received and held in trust by the defendant for the plaintiff, yet the writing does contain a provision, as follows: ‘ ‘ The undersigned agrees that any moneys received from the sale of such goods, shall be received and held in trust by the undersigned, and turned over to you forth*825with upon receipt thereof in its original form, with proper endorsement, if necessary.”


No action for an annulment of the marriage has been instituted in the Supreme Court and, therefore, the present status of the relationship between the parties is that of husband and wife. Since the marital relationship now exists, this court has jurisdiction over the parties and may enter an order for the support of the wife and the child. In fact, the respondent does not deny his liability for the support of his child and states that he is willing to support her as soon as his means will permit. Although respondent has made sincere efforts to secure employment, he has not been successful. He is still under the age of eighteen and is not a citizen because his father has not yet received final <mask> papers. It appears unlikely that respondent will secure employment in the immediate future. In view of the respondent’s financial condition, his lack of assets and his inability to secure employment, the proceeding is reserved generally with leave to the petitioner to renew in the event of a change in the respondent’s economic condition. The petitioner’s case is referred to the department of welfare for investigation and assistance.


After the divorce of her parents it appears that the infant (in whom alone I am interested in this proceeding, as her <mask> clearly follows that of her father, and she now resides in my jurisdiction and is committed to my care) was taken by the father from Germany via New York to Mexico. In July, 1910, the child was brought thence to New York. In November, 1910, as I am informed by the papers submitted to me, a writ of habeas corpus issued out of the Supreme Court of this State, at the instance of the mother, directing the father, Otto Wagner, to produce the infant before the court for its further action. Pending this proceeding, the father and mother entered into some sort of convention in writing, dated November 30, 1910, providing for the future custody, maintenance, support and education of the infant. Thereupon the writ of habeas corpus in question seems to have fallen without further action of the court. The father then took the infant to Berlin, Germany, in December, 1910, apparently pursuant to the agreement mentioned. Both parties now allege ultimate breaches of the said agreement. Which is in the right I cannot determine, and, according to my view of the status of the child, it is of no consequence in this proceeding before me. In any event, the infant was brought back to New York almost immediately by the father, and since January, 1911, has been continuously in the county of my jurisdiction. Thereafter the mother procured to be *30issued out of the Supreme Court of this State a second writ of habeas corpus directed to the father and requiring the production of the child. This writ also was allowed to lapse without further action of the Supreme Court.


Whether this result is good law or bad law is not for the court to discern. Whether any change in the law is called for remains within the sound discretion of the legislature. That does not, however, leave the People or the tribal police department without some remedy. The court can perceive no obstacle, under such circumstances, to the responding officers, suspecting the commission of a crime, seeking the assistance of sister agencies who could effect an arrest, even upon the sworn statements of the responding officers. They remain, most generally, citizens who are permitted, even called upon, to cooperate with law enforcement and provide statements of their observations. Alternatively, in some cases, they could be called before the grand jury, in a direct presentment, and give testimony of their observations. In these instances, they would simply be exercising the prerogatives of <mask> and not “the duties or functions of a police officer” (see Indian Law § 114 [8]).


Thus, if due process concerns, rather than competence concerns, underlie the requirement of jurisdiction over the marital res, then the question remains whether such jurisdiction acquired at the commencement of an action may be retained when the jurisdictional predicate is lost. The general rule with respect to jurisdiction of the person or of the res is that jurisdiction acquired at the commencement of the action is not defeated by subsequent events occurring during the pendency of an action, even if they are of such character as would have prevented jurisdiction from attaching in the first instance. (21 CJS, Courts, § 72; see also Primavera v Primavera, 195 Misc 942.) Such jurisdiction is retained until final disposition of the case. (21 CJS, Courts, § 73.) In the instant action, the Court clearly had jurisdiction over the marital res at the time of commencement by virtue of plaintiff’s New York domicile. Due process having been satisfied, there is neither precedent nor rationale for the proposition that due process is undone by virtue of plaintiff’s mid-action change of domicile. To the contrary, public policy militates against allowing a litigant to divest a court of jurisdiction in a pending action by his own volitional acts. (Cf. McEachron v Glans, 983 F Supp 330 [ND NY 1997], citing 28 USC § 1332 [a] [federal subject matter jurisdiction based on diversity of <mask> is determined at the commencement of an action and can neither be created nor destroyed by a party’s subsequent change in domicile].)


“ § 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then, at the next session of the court in which such suit or prosecution is pending, file a petition stating the facts and verified by affidavit, for the removal of the cause for trial to the next Circuit .Court-of the United States, to be holden in the district where the suit *596is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court, and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or 1 prosecution,’ and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the <mask> of the parties, any former law to the contrary notwithstanding.”


Two other New York cases have passed upon this question (Clemente v Little, NYLJ, Jan. 5, 1977, p 19, col 3; Holt v City of Troy, 78 Misc 2d 9). In Clemente the court observed, in *15reliance upon Judo (supra), that State courts exercise concurrent jurisdiction over section 1983 claims, but dismissed the claim against the municipality. In Holt the court sustained a section 1983 claim against a police officer, primarily upon the rationale that absent diversity of <mask> the Federal courts could not enforce such a claim. However, insofar as the latter rationale is concerned, the overwhelming weight of Federal authority is that diversity, like the monetary jurisdictional requirement, is not a prerequisite to access to the Federal courts for redress of section 1983 violations (see US Code, tit 42, § 1933, cases cited Ann No. 762; Later Case Service, CLS, US Code, tit 42, § 1983, cases cited Ann No. 71), although the United States Supreme Court has not, as yet, specifically resolved the issue (cf. Scheuer v Rhodes, 416 US 232, 234, n 2; Collins v Hardyman, 341 US 651; Douglas v Jeanette, 319 US 156).


*387In the opinion of the court the prima facie case made by the plaintiff by the offering of the policies in evidence (Campanaro v. Prudential Insurance Co., supra) has been overcome by the documentary evidence offered by the defendant to the effect that the age of the plaintiff was seven years greater than that stated in each policy. The statements of the plaintiff made to the various public authorities, passport, immigration, <mask>, election, license, at a time when no motive for falsifying existed or appeared to exist, that his correct birth date is 1878, is accepted by the court as the correct statement of the fact. Each written instrument signed or the information therein supplied by the plaintiff is documentary evidence. Documentary evidence may be any written instrument to which the plaintiff did or did not affix his signature and from which written instrument evidence material to the issues is supplied. “ A public document is one recording facts which may have been inquired into or taken notice of for the benefit of the public by an agent authorized and accredited for the purpose.” (22 C. J. 791, note 14.) Public documents may include records generally, registers of births, baptisms, marriages, deaths and other registers, such as immigration, citizenship, election and license.


Defendant also contends that since she is a resident alien contemplating application for <mask> and since implication in a crime involving moral turpitude may subject her to deportation (United States v. Unger, 26 F. 2d 114 [U. S. Dist. Ct., S. D. N. Y.]), she may still assert her privilege. However, it is well settled that deportation proceedings are civil rather than criminal in nature and therefore the constitutional guarantees, of which the privilege against self incrimination is one, are not applicable to such a proceeding. (United States ex rel. Bilokumsky v. Tod, 263 U. S. 149.)


In any case, the mere mention of State-wide <mask> would not be sufficient compliance with recent case law development. That is, the Court of Appeals, in its second Heller decision, stated that the applicable community standard in New York has been, and will continue to be, defined and administered by our appellate courts as a matter of State law. (See People v Heller, 33 NY2d, at pp 326-327, supra.) Apparently, then, it is incumbent on a Trial Judge to fully explain and define that standard in his charge, as a matter of law. This was not done in appellant’s case, wherein the entire matter was specifically left up to the jury as the trier of fact.


The opinion in O’Rourke (730d 842, supra) begins with a *860determination of the appropriate substantive law to be applied on the ground that choice-of-law "is necessary before we may consider in particular the prejudgment issue” (730d, at p 846). In accordance with the rule that "[w]here jurisdiction rests upon diversity of <mask>, the court must apply the whole law of the state in which it sits” (supra, p 846). New York’s substantive law was found applicable to the claim against Eastern.2