pensions are to be paid out of the fund, and that no pensioner has a right to look to the capital or income of the company to meet such payments. When counsel argue about vested rights, it must be borne in mind that it must first be determined just what rights exist. It clearly appears from the rules that plaintiffs in error have no vested right to any of the property or income of Morris & Co. to pay their pensions, but must look wholly to the fund.

[9] Numerous arguments are advanced concerning the character of the pension as a deferred wage, and considerable space in counsel's brief is devoted to what they characterize as the best thought of the day on the subject. Those matters are interesting, but can be of no avail to change the rights and obligations of the parties as prescribed by the contract.

[10] Counsel's contention that Armour & Co. is liable to plaintiffs in error for the payment of their pensions, and that the sale to Armour & Co. was in violation of the Bulk Sales Law, must be grounded on the proposition that plaintiffs in error are creditors of Morris & Co. Since there is no obligation resting on Morris & Co. that has not been fully discharged, they cannot be considered creditors of that company, and there is therefore no basis for the contention of counsel for plaintiffs in error on these points.

In support of their argument for the existence of an implied contract on the part of Morris & Co. in this case, counsel for plaintiffs in error cite McLemore v. Western Union Telegraph Co., 88 Or. 237, 171 P. 390, 1049. In that case the Western Union Telegraph Company created a plan for employees' pensions. The company created, controlled, and administered the fund, and guaranteed to keep the same in its original amount. The court in that case held that the defendant was liable under its contract, and that it was not a mere benefaction. It will be noted that there was a specific agreement to keep the fund to a certain amount.

In Lead Company's Workmen's Fund Society v. Governor & Co., 75 Ch. Div. L. J. R. 628, 20 L. T. R. 504, a society had been formed to provide benefits for workmen arising out of funds raised by contributions and fees from the membership. Eligibility to pensions was fixed at the age of 65. The employer ceased to carry on business, resulting in a cessation of the contributions. A suit was brought to have the society dissolved and its funds distributed. One of the rules provided that a member of the society, upon attaining the age of 65, who had ceased to contribute to the society, would become "indefeasibly entitled to a weekly allowance of six shillings for the remainder of his life." The court held this rule did not mean that the beneficiaries were indefeasibly entitled to such allowance whether the funds of the so

ciety were sufficient or not, but that the rule assumed that the society would have sufficient funds.

In Grand Canal Boatmen and Workmen's Benefit Society v. Tough, I Irish, 142, the plan under which the funds of this character were raised was by contribution of weekly sums by the employer supplemented by weekly payments by the employees. The fund was administered by a committee, three of whom were elected by the employees and three by the employer. In a suit to wind up the society, the question was raised as to who was entitled to the proceeds. It was held that the contributions by the company were absolute gifts, and that the funds were the property of the society, to be distributed according to the interests of the members.

[11] In none of the cases cited by counsel is it held that the contributing employer is required to continue the fund or continue business in order to support it, unless there is an express contract to do so. It is too well established to require the citation of authority that a party is free to dispose of his property on such conditions and terms as he deems advisable, where to do so does not conflict with any rule of law, good morals, or public policy. There is no evidence here to support the charge made by counsel for plaintiffs in error in their brief that Armour & Co., Morris & Co., and the fund committee engaged in a conspiracy to defeat or defraud the rights of the pensioners.

Mc

[12, 13] Plaintiff's in error contend that they have a vested interest in the fund which is prior to the interest of the contributing members. The rule in this class of cases is that the interests of all parties to the fund are to be governed by the contract, represented in this case by the rules or by-laws gov erning the fund. Royal Arcanum v. Knight, 238 Ill. 349, 87 N. E. 299; Pain v. Société St. Jean Baptise, 172 Mass. 319, 52 N. E. 502, 70 Am. St. Rep. 287; Stohr v. Musical Fund Society, 82 Cal. 557, 22 P. 1125; Fugure v. Mutual Society of St. Joseph, 46 Vt. 363. The rules in this case not only provide for the payment of the pension, but also provide the contract right of each contributor not a pensioner to withdraw his contribution when dismissed from the company. The rights of plaintiffs in error are therefore bound by, and subject to, the terms of the contract or rules governing the fund.

[14-17] It is contended that the committee conspired to defeat the rights of the pensioners, and its members should be held personally liable for the amount paid out. There is no evidence whatever of a conspiracy on the part of the committee to defeat the rights of plaintiffs in error, or that it acted in any manner other than that required by rule 22 in paying out the fund to the contributors. The rule generally in cases of dissolution of a fund similar to the one involved here is,

that the assets are to be distributed among the members thereof in accordance with their contributions. Coe v. Washington Mills, 149 Mass. 543, 21 N. E. 966; Walter v. Pittsburgh & Lake Angeline Iron Co., 201 Mich. 379, 167 N. W. 834, 1 A. L. R. 624; Fogg v. Order of the Golden Lion, 156 Mass. 431, 31 N. E. 289; In re Youth's Temple of Honor, 73 Minn. 319, 76 N. W. 59. The committee was obliged to administer the fund in compliance with the rules. Rule 22 is plain and unambiguous, and requires no judicial construction. There was therefore no necessity to appeal to a court of equity to determine the duty of the committee. A trustee is required to perform the trust he has undertaken in accordance with its provisions, and the care and prudence to be exercised by him are those which ordinary men would exercise under like circumstances concerning their own affairs. Wahl v. Schmidt, 307 Ill. 331, 138 N. E. 604; Wylie v. Bushnell, 277 Ill. 484, 115 N. E. 618; Kaufman v. Loomis, 110 Ill. 617; 2 Perry on Trusts (6th Ed.) § 914; 3 Pomeroy's Eq. Jur. (3d Ed.) 1070. The committee cannot be held personally liable for discharging the duty imposed upon it by the rules.

Much stress is laid on the argument that a great injustice has been done the pensioners, for which Morris & Co. and other defendants are responsible. The facts show that the pensioners, up to March 31, 1923, had paid into the fund $131,000, and had withdrawn therefrom $1,315,000. There remained in the fund for their benefit on that date the further sum of $364,915.07. The twenty original complainants in this case paid into the fund $8,378.28, and drew out $85,522.99. The evidence also shows that, after having retired from the service of Morris & Co., numerous pensioners engaged in other gainful occupations; one witness testifying that in addition to his pension he was earning in another business $140 per month. It is conceded by everybody interested in this case that no one has any interest in the money now remaining in the fund other than the 400 pensioners.

[18] It is earnestly argued that the money paid out to the discharged employees should be returned to the fund and be distributed; that the rights of the pensioners to the entire pension fund are prior to those of the contributing members who withdrew the money, or, if not prior, they are at least equal; and that the fund should be distributed on an equal basis. It may be noted that none of the contributing members of the Morris & Co. pension fund who withdrew their contri

butions, with interest, other than the members of the committee, are made parties to this proceeding. Not one-half of the pensioners are parties. It can hardly be claimed that it would be within the province of a decree in equity to require the return of this money by the more than 2,000 contributors who withdrew it under the rules of the pension fund without making them parties to the proceeding. Such contributors are necessary parties to any proceeding in which a decree against them is to be rendered. Nolan v. Barnes, 268 Ill. 515, 109 N. E. 316; Moore v. Munn, 69 Ill. 591; Gerard v. Bates, 124 Ill. 150, 16 N. E. 258, 7 Am. St. Rep. 350; Prentice v. Kimball, 19 Ill. 320; Brown v. Riggin, 94 Ill. 560; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Palmer v. Woods, 149 Ill. 146, 45 N. E. 1122; Riley v. Webb, 272 Ill. 537, 112 N. E. 340; Story's Eq. Pl. § 207. That question is therefore not open on this bill. It may, however, be observed that, if a distribution of the fund remaining on hand March 31, 1923, on an equal basis were effected, the pensioners who have paid into the fund $131,000, or an average of $325 each, would be permitted to withdraw $364,915.07, or an average of something over $900 each, in addition to the pensions already paid to them, while the contributing members would withdraw merely what they had paid in, with interest thereon computed as required by the rules.

The situation surrounding the ending of this fund is one of misfortune, but the court cannot decree the continuance of a fund, unless some one is liable for such continuance. Whether the contributing members should be required to return to the fund for distribution the amounts received by them is a matter which cannot be disposed of in this case for want of necessary parties.

[19] Counsel for plaintiffs in error urge that the committee should be decreed to have misdistributed a trust fund. The committee was bound by the rules governing the plan, and, when the contributors were discharged from the employment of Morris & Co., it became the duty of the committee to permit them to withdraw their contributions, with interest.

The bill, and the facts shown therein, do not entitle plaintiffs in error to the relief sought, and the chancellor did not err in dismissing the bill for want of equity. The Appellate Court (242 Ill. App. 548) was therefore right in affirming that decree, and its judgment is affirmed.

Judgment affirmed.

I. Criminal law 1001-County Court's mandate suspending sentence upon condition defendants pay fine held not revocation of sentence and imposition of new one (Code Cr. Proc. § 483, subd. 2, and § 11-a, subd. 4).

Where County Court issued mandate that sentence of imprisonment be suspended upon condition that each of defendants pay fine, held, that such mandate was not revocation of sentence as previously imposed and imposition of new one, but suspension of judgment upon compliance by defendants with conditions which they might accept or reject, by virtue of Code Cr. Proc. 483, subd. 2, and section 11-a, subd. 4.

2. Criminal law 1001-County Court's jurisdiction to stay judgment imposing sentence does not expire with term, but is vested in court (Penal Law, § 2188).

Jurisdiction of County Court to stay execution of judgment imposing sentence does not expire with term at which prisoners were tried, and, like power to revoke suspension, is not confined to one term nor even to one judge, but is vested in court, subject to one limitation on time of its exercise stated in Penal Law, § 2188; namely, that imprisonment directed by judgment shall not be suspended or interrupted after such imprisonment shall have commenced.

3. Mandamus 61-Mandamus held not to lie to remedy County Court's suspension of judgment imposing sentence on condition defend ants pay fine.

Where order suspending execution of judgment imposing sentence on condition that defendants pay fine was made by County Court before imprisonment was commenced by same judge who presided at trial, held, that court's action might not be remedied by resort to mandamus.

4. Criminal law 1083-County Court did not lose jurisdiction to suspend execution of judgment on condition of payment of fine subsequent to affirmance of conviction by Appellate Division (Code Cr. Proc. § 546).

Where County Court entered mandate staying execution of judgment imposing sentence on condition that defendants pay fine, subsequent to affirmance of conviction by Appellate Division on an appeal, held, that jurisdiction of County Court was not lost through appeal, since Code Cr. Proc. § 546, conferring power on appellate courts to make such directions as may be necessary in view of changed conditions to carry judgment into effect, did not invest them with jurisdiction to determine whether sentence should be suspended or defendant placed on probation.

5. Courts 107-Judgment of affirmance by Court of Appeals or Appellate Division is not expression of opinion as to propriety of staying or suspending execution of sentence (Code Cr. Proc. § 543).

Judgment of affirmance either by Court of Appeals or by Appellate Division is not an expression of opinion as to propriety of staying or suspending execution of sentence, and there is no jurisdiction in either court to express such opinion with any authoritative force; Appellate Division being empowered to reduce sentence, but never below minimum penalty provided by Code Cr. Proc. § 543.

6. Criminal law 1001-Power to stay execution or to place defendant on probation is confided to court of original jurisdiction.

Power to stay execution, like power to revoke stay or to place defendant on probation, is confided to court of original jurisdiction which may be controlled in exercise of its discretion by information dehors record.

Crane, Kellogg, and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

In the matter of the application of the People of the State of New York, on the relation of Glenn W. Woodin, as District Attorney for Chautauqua County, for a mandamus order against Lee L. Ottaway, individually and as County Judge of Chautauqua County, and the County Court of Chautauqua County, impleaded with Lyle Cook and others, to compel respondent judge to complete commitment papers and vacate and set aside order previously made in reference to sentence of impleaded respondents.

From an order of

the Appellate Division of the Supreme Court in the Fourth Judicial Department (222 App. Div. 711, 224 N. Y. S. 887), affirming an order of the Special Term of the Supreme Court (129 Misc. Rep. 120, 220 N. Y. S. 671), denying application for the order of peremptory mandamus, relator appeals by permission. Affirmed.

Glenn W. Woodin, Dist. Atty., of Dunkirk, for appellant.

Frank H. Mott, of Jamestown, for respondent.

PER CURIAM. Penal Law (Consol. Laws c. 40), § 2188, gives authority to a court not merely to suspend sentence, but to impose sentence and suspend the execution of the judgment.

[1] In the view of a majority of this court, the mandate of the County Court was not a revocation of the sentence previously imposed It was and the imposition of a new one.

a suspension of the execution of the judgment upon compliance by the defendants with a condition which they might accept or reject.

Com. v. Dowdican's Bail, 115 Mass. 133, 136. Cf. Code Crim. Proc. § 483, subd. 2; section 11-a, subd. 4.

[2] Jurisdiction to stay the execution did not expire with the term at which the prisoners were tried. Like the power to revoke the suspension, it was not confined to one term nor even to one judge, but was vested in the court. People v. Bork, 96 N. Y. 188, 198; Moett v. People, 85 N. Y. 373, 383; People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; People v. Nesce, 201 N. Y. 111, 94 N. E. 655; People v. Brown, 153 App. Div. 234, 138 N. Y. S. 7; People v. Graves, 31 Hun, 382; State ex rel. Gerhrmann v. Osborne, 79 N. J. Eq. 430, 439, 82 A. 424. The one limitation upon the time of its exercise is stated in the statute (Penal Law, § 2188):

"The imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced." Cf. United States v. Murray, and Cook v. United States, 48 S. Ct. 146, 72 L. Ed., Jan. 3, 1928.

It

[3] The order suspending the execution of this judgment was made by the County Court before imprisonment had commenced. was made by the same judge who had presided at the trial, so that there is no occasion to consider the questions of judicial comity or propriety that might conceivably arise if it had been made by another judge while the trial judge was present or competent to act. If the stay was indiscreet, the indiscretion may not be remedied by resort to a mandamus.

[4] Jurisdiction was not lost through the appeal to the Appellate Division and the affirmance by that court before the order for a stay was made.. Section 546 of the Criminal Code does not touch the situation. All that it does is to confer power on appellate courts to make such directions as may be necessary in view of changed conditions to carry a judgment into effect; as, e. g., where the date fixed for the execution of a death sentence has expired pending an appeal. There was no thought to.invest them with jurisdiction to determine whether sentence should be suspended or a defendant placed upon probation. This conclusion becomes the more obvious when we consider a few dates. Section 546 goes back in its present form to 1882. The power to suspend sentence did not have recognition in any statute till 1893. L. 1893, c. 279, amending Penal Code, § 12; People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N. Y. 288, 294, 36 N. E. 386, 23 L. R. A. 856. Not till 1918 was there a statute giving power to impose a sentence in the first instance, and thereafter stay the judgment. L. 1918, c. 457. Cf. L.

1913, c. 125, amending Code Crim. Proc. § 517, and superseding People v. Flaherty, 126 App. Div. 65, 110 N. Y. S. 699. Obviously section 546 was framed alio intuitu. The problem might wear another aspect if the discretion to suspend or stay were subject to review upon appeal. There is no contention that it is.

[5, 6] A judgment of affirmance either by this court or by the Appellate Division is not an expression of opinion as to the propriety of staying or suspending the execution of the sentence. There is no jurisdiction in either court to express such an opinion with any authoritative force. The Appellate Division can indeed reduce the sentence, but never below the minimum penalty provided by law. Code Crim. Proc. § 543. The power to stay execution, like the power to revoke the stay, or to place a defendant on probation, is confided to the court of original jurisdiction, which may be controlled in the exercise of its discretion by information dehors the record. It is not shorn of the power by an intermediate appeal.

The order should be affirmed, without costs.

CRANE, J. (dissenting). I am for reversal on two grounds. In the first place, the county judge had no power to change his sentence after it once had been imposed. Having sentenced the defendants to state prison, he subsequently and after affirmance of the judgments of conviction by the Appellate Division sent for the defendants and changed his sentence from imprisonment to one of a fine of $300. He repeatedly stated that he would change or modify his sentence. This he attempted to do by suspending the execution of the judgment on condition that the defendants pay a fine of $300. The defendants paid the fines and were released. This action of the county judge was illegal and unauthorized.

Some of my associates say that the imposition of the fine, although illegal, may be ignored; that the judge merely suspended the execution of the judgment; that even if he had no power to impose the fine, the matter may be overlooked or disregarded. Can it be so far disregarded that the defendants can sue and get back the money illegally paid? Or again, can the payment of the fine be so far disregarded that the judge, under section 2188 of the Penal Law, may revoke the suspension and execute the original judgment of imprisonment? These questions to my mind show that we cannot disregard the imposition of the fine as a wholly unjustified and illegal act. The judge in reality as well as in form changed the sentence from one of imprisonment to one of fine, and released the

defendants. He had no power to impose such a condition, and he had no power to change his sentence from imprisonment to fine. His act must be considered as a whole. I have never heard of a court bargaining with the defendants regarding the sentence or judgment to be entered. The law does not recognize such methods. Restitution for wrong done often is taken into consideration by the courts in imposing sentence, but here there was no restitution for any wrong done. The court was simply executing the law in imposing a sentence provided by law, and there is no law for the suspension of sentence upon condition that a defendant pay money to the county.

I also agree with Judge KELLOGG that section 2188 gives no power to the county judge to suspend sentence after affirmance by the Appellate Division. The last words of the section, reading, "Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced," must be read in connection with other provisions of the Code of Criminal Procedure and the Penal Law. After a sentence of imprisonment, it is the duty of the sheriff forthwith to deliver the defendant to the proper prison authorities for incarceration. Before he does

In

this, the judge may suspend the judgment. But if the sheriff in executing the judgment is stayed by a certificate of reasonable doubt, the stay or the certificate operating as a stay takes the place of the imprisonment. other words, this proviso of section 2188 runs until the imprisonment in the ordinary course of procedure or until something else is substituted for the imprisonment. The certificate of reasonable doubt is such substitution. These defendants were out on a certificate of reasonable doubt pending the appeal to the Appellate Division. That court passed upon the judgment of conviction and affirmed it. I do not think it was the intention of the Legislature to give to the trial court thereafter the power to suspend the judgment which the Appellate Division affirmed. The fact that the Appellate Division has the power to modify the judgment imposed upon the defendants is a strong indication that the power of suspension given in section 2188 did not survive the action of the Appellate Division. In fact, the power ceased long before action by the Appellate Division. It ceased with the imprisonment of the defendants. If there had been no certificate of reasonable doubt, they would have been imprisoned immediately. The certificate of reasonable doubt, while keeping them out of prison, did not in my judgment keep alive the power to suspend the execution of the judgment.

This interpretation of section 2188 to my mind is quite reasonable. If the trial courts are to have the power of suspension after the appellate courts have passed upon the record, the matter should be called to the attention of the Legislature so that their attention in this matter may be more clearly expressed. I for one do not believe that the Legislature ever intended this power to exist beyond the day when imprisonment should have taken place in the ordinary course of procedure.

KELLOGG, J. (dissenting). The trial of an indictment, charging Lyle Cook, Irwin Cook, and Herbert Cook with the crime of assault in the second degree, was conducted by the County Court of Chautauqua county at a term held, pursuant to appointment, in July, 1926. On July 23, 1926, a verdict, finding the three defendants guilty of the crime as charged, was returned. On the same day the County Court, declining to postpone the pronouncement of sentence for the reason that the court was about to adjourn, sentenced the three defendants to imprisonment in state's prison for a term of not less than one year and not more than two years. The July term of the County Court was then adjourned without day. Thereafter a certificate of reasonable doubt, was granted by the county judge, and an appeal was taken to the Appellate Division. On November 2, 1926, the Appellate Division handed down a decision unanimously affirming the judgment of conviction. Meanwhile, the County Court had adjourned its October term, appointed to be held on October 4, 1926, to November 29, 1926. The County Court, sitting at the time and place fixed by the order of adjournment, upon motion of the counsel for the defendants, made the following disposition of the case:

"Very well, then, the sentence of this court as reframed at this time is that the sentence previously imposed of not less than one year and not more than two years is suspended upon condition that each of these defendants pays a fine which the court fixes at $300. That is the sentence as reframed."

An application was subsequently made to the Supreme Court by the district attorney of the county for a writ of mandamus directed to the county judge of Chautauqua county, commanding him to vacate the order thus made. The application was denied, and the order denying it was affirmed by the Appellate Division "as a matter of law and not in the exercise of any discretion." Thereafter the Appellate Division granted leave to appeal to this court.

It is provided in section 546 of the Code of Criminal Procedure as follows: