
    The People of the State of New York ex rel. Frank McShane, Respondent, v. James J. Hagen, Warden of the City Prison in the County of New York, and W. H. Olmstead, City Magistrate of the City of New York, Defendants. The People of the State of New York, Appellant.
    
      Illegal voting—who is kept at an institution supported at public expense so that he does not gain a residence.
    
    A person permitted to remain in Bellevue Hospital, which is supported at the public expense, during the pleasure of the superintendent of the institution, who has no authority to employ unpaid help, under an arrangement by which such person is to get his board and lodging and an occasional suit of dead men’s clothes, and is required t.o work as directed, is “kept” in the hospital within the meaning of section 3 of article 2 of the Constitution of the State of New York, which provides that no person shall be deemed to have gained or lost a residence “ while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense.”
    Evidence that a person staying at the hospital under such an arrangement . registered and voted in the district in which the hospital was situated, having no other residence in that district, is sufficient to require the submission to a grand and a petit jury of the question whether he was guilty of the offense of false registration and illegal voting specified in sections 41a and 41m of the Penal Code.
    Appeal by The People of the State of Rew York, by John C. Davies, Attorney-General, from a final order of the Supreme Court, made at the Rew York Special Term and entered in ■ the office of the clerk of the county of Rew York on the 11th day of December, 1899, sustaining writs of habeas corpus and certiorari, and discharging the relator from the custody of the warden of the city prison in the county of Rew York.
    
      John H. Hammond, for the appellant.
    
      Nelson Smith, for the respondent.
   Barrett, J.:

The relator was committed by a city magistrate to await the action of the grand jury, upon charges of false registration and illegal voting. The ground of these charges was that he had not acquired a legal residence in the election district in which he registered and voted at the general election held on the 7th day of Ro'vember, 1899. He was what is known as an “ unpaid helper ” in Bellevue Hospital, an institution supported at the public expense; and. lie claimed a residence there. The hospital is ¡situated in the election district in which he registered and voted; and he had no other resi- . deuce in that election district. We have'gone over the depositions and are of opinion that a prima facie case was made out, such as to ■ require the submission to the grand jury and a petit jury of the question of the relator’s guilt of the offenses specified in sections 41a and 41m of the Penal Code. The relator insists that he was not “ kept ” in the hospital within the intent and meaning of the -3d section of the 2d article of the State Constitution, That section reads as follows:

For the purpose of voting no person shall be deemed to -have gained or lost a residence by .reason of his presence or absence while employed in the service of the United States ; nor while engaged _ in the navigation of the waters of this State, or of the United States, or of the high seas; nor while a.student of any seminary of learning ; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense, or by charity; nor while confined in any public prison.” '

The question then is, was the relator “ kept ”• (that is “ supported,” Silvey v. Lindsay, 107 N. Y. 60) in the hospital? If so, he neither gained nor lost a residence by reason of his presence there while being so kept or supported.

The solution of this question depends upon his precise legal status-in the hospital. It seems clear that he was kept ” in the institution, within the intent of the constitutional provision, if his presence there was not under some contract, express or implied. Even if his presence there were under a contract, it does not necessarily follow that he thereby acquired 'a residence in the institution. But if he was simply an inmate of the hospital under a bare license — that is, with mere permission to use it as an asylum — then clearly he could not gain a residence there-while enjoying , the maintenance which it afforded him. The testimony leaves no room for doubt that this was the relator’s real status! It was sought,, by skillful questioning of the witnesses, to obscure this,, and to suggest a contract of employment. Thus the relator was made to talk of “ working for his board, lodging and clothing.” So, too, .the superintendent, under leading questions, spoke of “ paying ” these helpers “ for their services.” - All this, however, was but a conclusion from the facts — a conclusion put into the mouths of willing witnesses. The actual facts, as testified to, were that the superintendent himself liad no authority of any kind to employ unpaid help; that, consequently, he never made, .or attempted to make, any contract of employment with the relator; that no one else in the hospital had any authority to make any such contract, and that no one else did. There was a custom by which one Downes, who had charge of the workmen hired from time to time, recommended unpaid helpers to the superintendent, and by which the latter would thereupon take them in if he were so disposed. They were then told that they would get their board and lodging and an occasional suit of dead men’s clothes; would be required to work as directed, and would be kept just as long or as short a time as the. superintendent pleased. And they would stay, subject to his pleasure, just as long-or as short a time as they pleased. This was the sum and substance of it. All else is an attempt to paraphrase the transaction into Avhat it was not. The arrangement was called, in varying phrases, “ a chance to earn a living,” a “ job,” “ services ” payable in board and lodging, and 'the like; but essentially it Avas quite the reverse — namely, board and lodging, support, maintenance — in fact, an asylum at the public expense, Avith the usual almshouse and municipal lodging house accompaniment of work. (Laws of 1897, chap. 378, § 681; Laivs of 1886, chap. 535, § 5.) This is Avhat it comes to, or certainly Avhat a jury Avould be justified upon the evidence in saying that it comes to. There was not throughout a trace of genuine contract obligation on either side.

We find that upon the election day in question there Avere 155 of-these “ unpaid helpers ” in this institution, and but 119 regularly jjaid employees. It Avas in part, at least, to prevent such institutions from being utilized for political purposes that this provision of the Constitution Avas adopted. That provision would be practically nullified were the courts to favor mere devices like the present, Avhereby it is sought to turn these penniless and homeless inmates into contract employees and genuine residents. Efforts of a similar character in other directions havre been numerous, but they have uniformly failed. (Silvey v. Lindsay, supra; People v. Cady, 143 N. Y. 100; Matter of Goodman, 146 id. 284; Matter of Garvey, 147 id. 117.)

It is also apparent that the relator here appreciated his real status in the hospital, and that he never attempted or intended to make it his residence. He was well aware that he could be sent' away at any moment, and accordingly, as he himself testified, he did not make up his mind to stay there any length of time.” There was ample evidence to warrant the relator’s commitment, ■ and the order appealed from should, therefore, be reversed, the writs of habeas corpus and certiorari dismissed, and the relator remanded to. the custody of the warden of the city prison.

Patterson and McLaughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., concurred in the result upon the ground that it was a question for a jury to determine" whether McShane intended to acquire a residence in the hospital.

Order reversed, writs of habeas corpus and certiorari dismissed, and relator remanded to the custody of the warden of the city prison.  