author: Rippey, J.

text:
    City of New York, Respondent, v. New York Telephone Company, Appellant.

      Argued March 17, 1938;
    decided April 13, 1938.

      Irving W. Young, Jr., N. H. Egleston, Earle M. Simonson, H. N. Wells and Charles T. Russell for appellant.
    Jurisdiction based upon the sovereign police power was never delegated by the State to the city. (Matter of Grade Crossing [Lehigh Valley R. R. Co.], 264 N. Y. 195; Matter of N. Y. C. R. R. Co. v. Public Service Comm., 266 N. Y. 294; People ex rel. City of New York v. New York Rys. Co., 217 N. Y. 310; City of New York v. Hudson & Manhattan R. R. Co., 188 App. Div. 294 ; 229 N. Y. 141; Postal Telegraph-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 129 Misc. Rep. 591; 225 App. Div. 728; 251 N. Y. 562.) The specific provisions of the Rapid Transit Act (L. 1891, ch. 4, as amd.) and estabfished law imposed the expense of relocating the telephone conduits upon the city in its proprietary capacity as the owner of the railroad. (Wilson v. Costich Co., 231 App. Div. 346 ; 256 N. Y. 629; Matter of Rapid Transit R. R. Commissioners, 197 N. Y. 81; Litchfield Constr. Co. v. City of New York, 244 N. Y. 251; N. Y. & Queens Electric Light & Power Co. v. City of New York, 221 App. Div. 544; City of Los Angeles v. Los Angeles Gas & Elec. Corp., 251 U. S. 32; Postal Telegraph-Cable Co. v. Depew & Lancaster L., P. & C. Co., 129 Misc. Rep. 591; 225 App. Div. 728; 251 N. Y. 562; Postal Telegraph-Cable Co. v. San Francisco, 53 Cal. App. 188; 257 U. S. 648; Western Union Tel. Co. v. Los Angeles Electric Co., 76 Fed. Rep. 178; Western Union Tel. Co. v. Los Angeles Electric Co., 178 N. Y. 325; Bell Tel, Co. v. Belleville El. Co., 12 Ont. 571; City of New York v. Davis, 7 Fed. Rep. [2d] 566.)

      William C. Chanler, Corporation Counsel (Arthur A. Segall and Herman Horowitz of counsel), for respondent.
    The relocation of defendant’s duct fine was part of and incidental to the improvement made by the city under charter authority for the more beneficial use of the public highway. It was not an incident of subway construction. Defendant was obligated to conform to the public improvement at its own expense. (Matter of City of New York [Ely Ave.], 217 N. Y. 45; Matter of Green v. Miller, 249 N. Y. 88; City of Buffalo v. Stevenson, 207 N. Y. 258; People ex rel. City of New York v. Belt Line Ry. Corp., 230 N. Y. 86; New Orleans Gas Light Co. v. Drainage Comm., 197 U. S. 453; Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345; Chace Trucking Co. v. Richmond L. & R. R. Co., 225 N. Y. 435; Matter of Deering, 93 N. Y. 361; New York & Queens Electric Light & Power Co. v. City of New York, 221 App. Div. 544; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98; City of New York v. Brooklyn Edison Co., 247 App. Div. 48.)
   Rippey, J.

This action was brought by the city of New York for reimbursement for the cost of relocating the wire, conduits, and other structures of defendant located in Fourth avenue in the borough of Brooklyn. These structures were put in originally under a valid franchise about October 26, 1912, under permits issued by the duly constituted city authorities and approved by the Public Service Commission for the First District. Defendant thereafter maintained and used them in the original location until 1928. The plaintiff completed the work of shifting and relocating the cables, conduits, ducts and other underground structures of defendant on November 20, 1928. The relocation consisted generally in shifting the conduits to the east of the original location and raising or lowering them as conditions required between Atlantic avenue and Pacific street.

The original location of defendant’s structures was under the street pavement between curbs,— within street lines. As relocated, they were still within the street lines between curbs. Defendant’s franchise was held subject to public control and to such reasonable regulation as to location and use as public safety, health and convenience might, from time to time, require (New Orleans Gas Light Co. v. Drainage Commission, 197 U. S. 453). Where public interest requires, the sovereign, acting in a governmental capacity, may compel relocation of the facilities of public service corporations, and the cost thereof, in the absence of statutory provisions to the contrary, must follow the rule of the common law and be borne by the utility (Transit Commission v. Long Island R. R. Co., 253 N. Y. 345, 354).

In the center of Fourth avenue between Atlantic avenue and Pacific street was a mall 19.06 feet in width. On each side was a roadway 24| feet wide. Underneath the street was operated the municipal subway. At each cross street stairways were constructed leading down to the mezzanine floor above the subway tracks, and from this floor, in turn, stairways led to the station platform. Above and sheltering each stairway was a cover or kiosk. The borough president had control of the streets of the city (Charter of the City of New York [Laws of 1901, ch. 466], § 383, as amd. by L. 1921, ch. 170; L. 1933, ch. 829) subject to the supervision of the Board of Estimate and Apportionment (§ 242, as amd. by L. 1905, ch. 629). These authorities determined that public convenience and necessity required the removal of the mall and the repaving of the street to provide an unobstructed highway. To accomplish the street improvement it was necessary to eliminate the subway entrances from the mall and this required action by the former Transit Commission and its successor, the Board of Transportation, who had charge of the construction and operation of municipal subways (Rapid Transit Act [Laws of 1891, ch. 4], as amended and supplemented; § 134 of the Public Service Law [Cons. Laws, ch. 48], as supplemented by chapter 573 of the Laws of 1924). When requested so to act the Board of Transportation also was given statutory authority to act as agent for the city to prepare and submit plans to the Board of Estimate and Apportionment and to proceed with the construction and equipment, to advertise for bids and let contracts for improvements incident to subway operation (Public Service Law, § 134a). The city authorities then decided to erect new entrances and to provide new stairways to the subway on and from the street sidewalks to offset the closing of the entrances from the mall and, to accommodate the stairways, to relocate defendant’s underground facilities. Mere removal of the mall and old stairway entrances and repaving of the street did not necessitate relocation of defendant’s underground structures.

The Transit Commission determined that the existing rapid transit railroad structures under and along Fourth avenue were in all respects safe and adequate to provide for the needs of the traveling public, that the proposed change was in no way attributable to lack of facilities or to lack of equipment for the proper service and convenience of the users of the railroad, that the element of danger from the presence of the mall and subway entrances, if any, was caused solely by the vehicular traffic along Fourth avenue and that the cost of the relocation of the entrances as proposed, not being for a rapid transit purpose, could not be paid from rapid transit funds, to which conclusion the Board of Transportation assented. Thereupon the city demanded that the defendant pay the cost of the relocation of its underground facilities and defendant refused so to do.

Since its underground structures were located entirely outside of the limits of the mall in the center of Fourth avenue, it is the claim of the defendant that they were not within the arrangement embraced in the street improvement project involving the elimination or reduction of the width of the mall, that the relocation of its structures was rendered necessary only because of the building of the substituted entrances into the subway and that plaintiff did the work of removal and relocation of defendant’s property in a proprietary capacity as owner of the rapid transit railway which required plaintiff to make such changes and relocation at its own expense. We think the relocation of defendant’s underground structures was not a necessary part of the highway improvement. On the contrary, the construction of entrances to the subway was a proprietary activity of the city (Matter of Rapid Transit R. R. Commissioners, 197 N. Y. 81, 96; Litchfield Construction Co. v. City of New York, 244 N. Y. 251, 263; City of Los Angeles v. Los Angeles Gas & Electric Corp., 251 U. S. 32). Necessity, if any, for relocation of defendant’s facilities was due to plaintiff’s selection of the locality for the entrances to its subway. As owner of the railway it might, perhaps, compel the rearrangement of defendant’s facilities. Whether it had such right is not a question for decision here. With or without that right, it has proceeded to relocate them. No authority has been delegated by the Legislature to the city as owner of the subway to require relocation of public utility facilities at the expense of the utility. In relocating defendant’s underground structures, the city acted solely in its proprietary capacity as owner and operator of the subway -under the provisions of the Rapid Transit Act, and, having acted in that capacity, it must bear the cost (People ex rel. City of New York v. New York Railways Co., 217 N. Y. 310; City of New York v. Hudson & Manhattan R. R. Co., 229 N. Y. 141; Postal Telegraph-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 251 N. Y. 562, affg. 225 App. Div. 728, affg. 129 Misc. Rep. 591).

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Herbert Green, Appellant, v. State of New York, Respondent.
    (Claim No. 23893.)

      Submitted March 16, 1938;
    decided April 13, 1938.

      Julius Applebaum and John F. Tomaney for appellant.
    The claim was properly filed and prosecuted under the Court of Claims Act (L. 1920, ch. 922, as amd. L. 1929, ch. 467; L. 1936, ch. 775). (Jackson v. State, 261 N. Y. 134; Saxe v. Peck, 139 App. Div. 419.) Section 510 of the Penal Law does not expressly suspend claimant’s right during the term of sentence to prosecute for the tort to his person committed after such sentence and during confinement. (Avery v. Everett, 110 N. Y. 317; Bowles v. Habermann, 95 N. Y. 246; Troup v. Wood, 4 Johns. Ch. 228; Platner v. Sherwood, 6 Johns. Ch. 118; Davis v. Duffi, 8 Bosw. 617; 3 Keyes, 606; Bonnell v. R., W. & O. R. R. Co., 12 Hun, 218.) Section 510 does not expressly or necessarily include “ civil rights ” acquired after the imposition of the sentence. (Matter of Wendell v. Lavin, 246 N. Y. 115.) The judgment of the Appellate Division is erroneous. (Bhullar v. State, 248 App. Div. 820.)

      John J. Bennett, Jr., Attorney-General (Joseph I. Butler and Leon M. Lay den of counsel), for respondent.
    The claimant is precluded by section 510 of the Penal Law from prosecuting this claim. (Bowles v. Habermann,
      95 N. Y. 246; State v. Powers, 51 N. J. L. 432; Murphy v. Barron, 205 S. W. Rep. 49; Avery v. Everett, 110 N. Y. 317; Stephani v. Lent, 30 Misc. Rep. 346; Davis v. Duffie, 8 Bosw. 617.)
   O’Brien, J.

Appellant, while an inmate of Auburn Prison, was injured in the operation of a weaving machine. The Court of Claims found the facts to be that the agents of the State were guilty of negligence, that claimant was free from negligence and concluded as matter of law that his right to file his claim and have it heard and determined is not suspended by section 510 of the Penal Law. An award of $2,500 was made which has been reversed by the Appellate Division and the claim dismissed without prejudice to prosecution of the claim after the present imprisonment has been terminated. (251 App. Div. 108.)

The question here is whether section 510 of the Penal Law suspends claimant’s right to sue under section 12-a of the Court of Claims Act (Laws of 1920, ch. 922, as amd. L. 1929, ch. 467) during the term of his sentence. The Appellate Division has gone no further than to hold that his right is merely suspended. After disability caused by imprisonment has ceased, the right may be exercised. This judgment of the Appellate Division is not in conflict with our recent decision in Cullen v. State of New York (277 N. Y. 541). In that case, a special statute (Laws of 1933, ch. 547) conferred jurisdiction upon the Court of Claims to hear and determine the claim. In Bhullar v. State of New York (248 App. Div. 802) jurisdiction to hear and determine was also conferred by a special statute (Laws of 1935, ch. 961). Appellant does not cite any decision whereby, without the assistance of a special statute, one serving a term for felony has obtained, during the term of bis sentence, an award under section 12-a of the Court of Claims Act. While the decisions in Bowles v. Habermann (95 N. Y. 246, 250) and Avery v. Everett (110 N. Y. 317, 332, 333) are not controlling for the reason that the facts are different, the reasons stated in the opinions are impressive as tending to support the present judgment of the Appellate Division. In the Bowles case a motion was made in this court to suspend proceedings on appeal in an action wherein one of the parties had been convicted of a felony after the appeal had been taken. He was sentenced not to a State prison but to a penitentiary and the motion was denied. The section of the Penal Code then under consideration was section 707 and was the same as the present section 510 of the Penal Law. Each provides: “A sentence of imprisonment in a state prison for any term less than for life, forfeits all the public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts, authority, or powers of, or held by, the person sentenced.” At page 250 Judge Earl observed: “ So, although it may be sound law, under the decisions referred to, that one sentenced for a felony cannot commence an action to enforce or protect his rights, yet, if another commences suit against him, he must have a right to defend himself.” The prior decisions to which the judge referred are Davis v. Duffie (8 Bosw. 617; 4 Abb. Pr. [N. S.] 478). As reported in 8 Bosw. the opinion states: “ the decisions are uniform that although his right to prosecute an action is suspended * * * he may be sued.” Practically the same words are used in the opinion as reported in 4 Abb. Pr. The case of Avery v. Everett (110 N. Y. 317, 332, 333) dealt with the right of one sentenced to imprisonment for life and thus civilly dead to inherit real estate under a will. In the course of his opinion Judge Andrews, citing Davis v. Duffle and Bowles v. Herman, stated the law to be: The convict cannot sue, although he may be sued. * * * He cannot enter into executory contracts and call in aid the courts to enforce them. * * * Most of the difficuties suggested exist in the same degree in the case of convicts sentenced to imprisonment for a term of years, during which time their civil rights, by force of a prior section of the statute (§ 19), are suspended. But it is not claimed that this consequence divests them of their property during their imprisonment.”

Section 60, subdivision 3, of the Civil Practice Act recognizes the absence of right of a person imprisoned for a term less than life to maintain an action during the time of his imprisonment by providing for tolling the Statute of Limitations as in the case of an infant or alien enemy. (See Nathan v. Equitable Trust Co., 250 N. Y. 250, 254.)

The judgment should be affirmed, without costs.

Crane, Ch. J., Lehman, Htjbbs, Lottghran, Finch and Rippey, JJ., concur.

Judgment affirmed.


author: Lehman-, J.

text:
    Frank J. Quayle, Jr., Respondent, v. City of New York, Appellant.

      ■ Submitted March 18, 1938;
    decided April 13, 1938.

      William C. Chanler, Corporation Counsel (Oren Clive Herwitz and Paxton Blair of counsel), for appellant.
    By virtue of section 149 of the Charter of the City of New York (L. 1901, ch. 466), failure to sign the payroll under protest precludes recovery. (People ex rel. McLaughlin v. Board of Police Commissioners, 174 N. Y. 450; Matter of McCarthy v. McGoldrick, 266 N. Y. 199; Ryan v. City of New York, 177 N. Y. 271.)

      Louis Kunen for respondent.
    The judgment below was correct and should not be disturbed. (Hanley v. City of New York, 250 App. Div. 552; 275 N. Y. 482; McGrath v. Grout, 171 N. Y. 7.)
   Lehman-, J.

The plaintiff was elected Sheriff of the county of Kings for the term commencing January 1,1934, and ending December 31, 1935. The salary attached to the office by the Legislature was $15,000. The plaintiff served during the entire term for which he was elected. The Board of Aldermen upon recommendation of the Board of Estimate attempted to reduce the plaintiff’s salary. The plaintiff received and accepted the reduced salary, but in this action seeks to recover the difference between the amount received from the city and the amount of his salary as fixed by the Legislature.

The city in its answer pleaded that the reduction in plaintiff’s salary was made pursuant to authority conferred by the Legislature -under the provisions of chapters 636 and 637 of the Laws of 1932 and that the plaintiff was entitled to receive only the reduced salary. The city also pleaded that plaintiff made no notation to the effect that the amount received was received -under protest upon his receipts for payment of salary upon the official payrolls of the defendant during the period from January 1st, 1934, to and including December 31st, 1934”

A motion made by the plaintiff for judgment on the pleadings was granted at Special Term and the order was unanimously affirmed by the Appellate Division. Upon its appeal to this court, the defendant has abandoned its contention that, pursuant to authority conferred by the Legislature, the Board of Aldermen could, upon the recommendation of the Board of Estimate, reduce the salary of the plaintiff. (Cf. Hanley v. City of New York, 250 App. Div. 552; affd., 275 N. Y. 482.) It does not dispute that the plaintiff during the year 1935 did write upon the payrolls that the amount received by him was received under protest and it does not challenge the judgment for the amount of his salary withheld for the year 1935. The only question presented upon this appeal is whether failure to make similar notation during the year 1934 bars any recovery of additional salary for that year.

The rule in this State is well settled that acceptance by a public officer of compensation less than the salary fixed by statute does not, upon common law principles, bar recovery of the full salary. In People ex rel. Satterlee v. Board of Police (75 N. Y. 38, 42) this court said: “ There is no principle upon which an individual, appointed or elected to an official position, can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office, after appointment, is not a waiver of a statutory provision fixing the salary thereof, and does not establish a binding contract to perform the duties of the office for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer, and procure officials to act, at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to any such case, and cannot be invoked to aid the respondent.”

The common law rule formulated in that case has been restated by this court in differing form; but it has never been questioned or limited in any subsequent decision of this court. Acceptance by a public officer of an amount less than the salary fixed by law does not, upon any principle of waiver, estoppel or accord and satisfaction, bar recovery of the full salary. (Kehn v. State of New York, 93 N. Y. 291; Clark v. State of New York, 142 N. Y. 101; Grant v. City of Rochester, 79 App. Div. 460; affd. on opinion below, 175 N. Y. 473; Pitt v. Board of Education, 216 N. Y. 304.) The same rule has been adopted by the Supreme Court of the United States, Glavey v. United States (182 U. S. 595) (citing with approval cases from this State); United States v. Andrews (240 U. S. 90, 93). Some States, it is true, have rejected the rule (See 2 McQuillin on The Law of Municipal Corporations [2d ed.], § 542), but the appellant does not question the authority or persuasive force of the decisions of this court.

We do not pause to analyse these cases in order to determine upon what ground the decision rests. It is sufficient now to point out that in all these cases the question to be determined was whether by voluntary act on the part of the officer, he had made a valid agreement to accept, as compensation for performance of his official duties, an amount less than the salary fixed by law or had estopped himself from asserting a right to such salary. In each case the decision was dictated by common law principles of contract or by equitable consideration in which public policy might be an important factor. In none of these cases had the Legislature provided by statute that, regardless of the intention of the parties or general principles of contract, waiver or estoppel, acceptance, without protest, by a public officer of compensation less than his salary, should bar recovery of additional compensation.

There lies the distinction between this case and the cases relied upon as authority for the decision of the courts below. Here the statute provides: “ * * * Every official, employee or person who shall sign the receipt upon such payroll as having received the amount therein mentioned in full payment for services rendered by him for the entire time specified in such payroll, shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due to such person from the city of New York for the period covered by such payroll, unless at the time of signing such payroll the person receiving such wages or salary shall write legibly thereon in connection with his receipt, that the amount received is received under protest, and unless such protest is so written upon such payroll no recovery shall be had against the city of New York upon any further claim for wages or salaries for the period of time covered by such payroll.” (Charter of the City of New York, § 149 [Laws 1901, ch. 466, as amd.].)

The language of the statute leaves no ground for doubt as to the intent of the Legislature. Where an official whose salary is payable by the city of New York signs upon a payroll a receipt for moneys paid for official services and does not at the same time write that the amount received is received under protest * * * no recovery shall be had against the city of New York upon any further claim for wages or salaries for the period of time covered by such payroll.” In that statute the Legislature has defined for the future the public policy of the State. Its power there is not open to challenge. The right of a public official to recover from the city the full salary attached to the office is made subject to the condition that a claim against the city for such salary must be asserted promptly in the manner provided by the Legislature. Though we assume that acceptance of a lesser amount does not upon principles of contract create an accord and satisfaction or result upon common law or equitable principles in a waiver or estoppel, barring the assertion of any additional claim; yet by the statute the Legislature has decreed that regardless of intention of the parties or general principles of contract, waiver or estoppel, failure to make timely protest shall bar recovery.

If the statute does not transcend the powers of the Legislature under the Constitution of the State of New York or the Constitution of the United States, it must be enforced according to its terms. The plaintiff has not challenged its constitutionality. He accepted office with notice that his right to recover his full salary is subject to the conditions imposed by section 149 of the charter. No reason appears in this record for disregard of the statutory conditions.

The judgments should be modified by eliminating the amount awarded for unpaid salary for the year 1934 and as so modified affirmed, without costs. (See 278 N. Y. 598.)

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Bippey, JJ., concur.

Judgment accordingly.


author: Per Curiam.

text:
    William C. Dodge, Respondent, v. City of New York, Appellant.
    Argued March 18, 1938;
    decided April 13, 1938.

      William C. Chanler, Corporation Counsel (Oren Clive Herwitz, Paxton Blair and Robert H. Schaffer of counsel), for appellant.
    By virtue of section 149 of the Charter of the City of New York (L. 1901, ch. 466), failure to sign the payroll under protest precludes recovery. (People ex rel. McLaughlin v. Board of Police Commissioners, 174 N. Y. 450; Matter of McCarthy v. McGoldrick, 266 N. Y. 199; Ryan v. City of New York, 177 N. Y. 271.)

      Matthew G. Saltzman and Abraham Saltzman for respondent.
    Where a statute fixes the salary of a State officer there is no principle upon which the official can be compelled to take less than the salary fixed by law. Section 149 of the charter in so far as it relates to an accord and satisfaction, applies only to city officials and employees, and does not apply to constitutional State officers. (Matter of Flaherty v. Craig, 184 App. Div. 428; Schuttinger v. Woodruff, 259 N. Y. 212; People ex rel. Becker v. Board of Education, 162 N. Y. Supp. 643; Moore v. Board of Education, 121 App. Div. 862; Golding v. City of New York, 140 N. Y. Supp. 1020; Grant v. City of Rochester, 79 App. Div. 460; 175 N. Y. 473; Clark v. State, 142 N. Y. 101; Wright v. State, 223 N. Y. 44; Glavey v. United States, 182 U. S. 595; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38; Kehn v. State, 93 N. Y. 291; McCunney v. City of New York, 40 App. Div. 482; Emmitt v. Mayor, 128 N. Y. 117; People ex rel. McLaughlin v. Board of Police Commissioners, 79 App. Div. 82; Hanley v. City of New York, 250 App. Div. 552; 275 N. Y. 482.)
   Per Curiam.

In the submission of controversy the parties stipulated that “ plaintiff did not write upon his payroll receipts for the period from January 1, 1934 to June 30, 1937 that the amount received by him was received under protest.” Under the provisions of section 149 of the Charter of the City of New York (Laws 1901, ch. 466, as amd.) there can be no recovery upon any further claim for salary. (See opinion in Quayle v. City of New York, 278 N. Y. 19, decided herewith.) We do not pass upon any other question.

The judgment should be reversed and (the complaint dismissed, without costs. (See 278 N. Y. 599.)

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment reversed, etc.


author: Finch, J.

text:
    Village of Massapequa Park, Respondent, v. Massapequa Park Villa Sites, Inc., Appellant.

      Argued April 12, 1938;
    decided May 24, 1938.

      Irving Goldberg for appellant.
    Personal liability for taxes assessed against real property is expressly limited by section 71 of the Tax Law (Cons. Laws, ch. 60) to residents of the tax district in which the real property is assessed. (Hilton v. Fonda, 86 N. Y. 340; City of New York v. McLean, 170 N. Y. 374; People v. Durey, 126 Misc. Rep. 642; MacGregor v. Johnson-Cowdin-Emmerich Co., 39 Fed. Rep. [2d] 574.) Section 71 of the Tax Law is applicable to villages and under its provisions nonresidents of an incorporated village are exempt from personal liability for the taxes assessed against their real property by the village. (Village of Charlotte v. Keon, 207 N. Y. 346; Village of Lynbrook v. Otto, 266 N. Y. 308.)

      Frederick M. Thompson and James N. MacLean for respondent.
    Section 71 of the Tax Law does not apply to village taxes. (Cons. Laws, ch. 60, § 95.) Section 71 of the Tax Law does not limit liability for taxes. (Cons. Laws, ch. 64, § 126.) Section 126 of the Village Law in itself creates a liability for village taxes without limitation as to residence or in any other particular, and without reference to any other law. (City of Rochester v. Bloss, 185 N. Y. 42.)
   Finch, J.

The Appellate Division unanimously affirmed an order of Special Term denying a motion to dismiss the complaint upon a submitted controversy, and certified to this court the question: Should defendant’s motion to dismiss the amended complaint have been granted?

This plaintiff, an incorporated village in the county of Nassau, seeks a personal judgment against defendant, a domestic corporation, for taxes accruing on real property owned by defendant situated in the village. The defendant, which has its principal office in the county of New York, moved to dismiss the amended complaint on the ground that it appeared on the face of the complaint that defendant was a non-resident of the village and hence not personally hable for taxes.

Personal liability for real estate taxes has been confined to those who are resident of the particular tax district for so long a time that it has become a part of the history of real estate taxation. The rule arose because tax assessors, while having supervision to tax lands situated within their tax district, possessed no jurisdiction to assess against the owner if a non-resident. Within the limits of this right to assess “ * * * the ultimate tax levied by reason of the assessment is a charge against the person assessed, and is to be collected from his personal estate; * * *.” (Hilton v. Fonda, 86 N. Y. 339, 346; City of New York v. McLean, 170 N. Y. 374; MacGregor v. Johnson-Cowdin-Emmerich, Inc., 39 Fed. Rep. [2d] 574.) The limited personal liability has been continued by section 71 of the Tax Law (Cons. Laws, ch. 60), which reads as follows: “ If the owner of a parcel or portion of real property is a resident of the tax district in which such parcel or portion of real property is assessed, and his name is correctly entered on the assessment-roll, he shall be personally hable for the tax assessed against such parcel or portion of real property.”

The above provision prescribes two essential requirements for personal liability, (1) residence within the tax district in which the property is assessed, and (2) correct entry of the name of the owner on the assessment roll. In the case at bar one of these requirements concededly is lacking, namely, that the owner is not a resident of the village in which the real property was assessed, nor of the county in which the village is located. The above is the only section of the Tax Law which creates personal liability, and its appli cation is State-wide. (Village of Lynbrook v. Otto, 266 N. Y. 308.) In the absence of a provision exempting villages from the State-wide application of this section of the Tax Law, there is no basis for the contention that the Legislature intended to create any distinction with respect to personal liability for taxes assessed against non-resident real property owners, whether their property is located in villages or elsewhere within the State. If this were not so, instead of a uniform rule of liability throughout the State, there would result one rule for non-resident owners of property in villages as regards village taxes and another rule for non-resident owners of property in other subdivisions. An additional incongruity would exist if the real property were situated partly within and partly without the village. It is conceded that non-resident owners of real property in towns and cities are not personally liable. (Tax Law, § 95.) Can it be seriously contended that a non-resident owner is personally hable for village taxes but free from liability for town taxes assessed against the same piece of property?

The plaintiff contends that section 95 of the Tax Law while it specifically makes applicable section 71 to towns and cities exempts villages from its application. Section 95 reads as follows: Article, how applicable. This article shall apply to all the cities or towns of the state, in so far as the matters herein provided for do not conflict with the special and local laws of such cities or towns.”

The above article would seem specifically to extend its application to towns and cities except as it gives preference to conflicting local and special laws over the general provisions of the Tax Law. Otherwise because of the local and special laws in towns and cities, it might be urged that section 71 did not extend to towns and cities in which such laws conflicted in any way with the provisions of this article. Furthermore, in the absence of limitation, it would seem that the word “ towns ” should be read in the broad sense as including villages.” Every village is situated in a town and is territorially part of the town, although a village has a separate government. The Tax Law expressly recognizes a village as part of a town in the preparation of town assessment rolls. Thus the Tax Law provides: The form of assessment-roll prescribed or approved by the tax commission shall provide for the indication thereon, in appropriate columns, of the name of the village, if in a village.” (§ 21, subd. 2.)

In the absence, therefore, of a legislative expression that the term was used in a limited sense, when the Legislature in section 95 of the Tax Law referred to towns, it meant to encompass villages in towns and not to exclude them. Moreover, if section 95 of the Tax Law should be construed as excluding villages from the operation of section 71 it would seem to follow that no personal liability is imposed upon owners residing in villages as well as non-residents since such personal liability exists only by virtue of section 71 of the Tax Law. (Village of Lynbrook v. Otto, supra.)

It is urged that section 71 of the Tax Law is inappliable to villages since the Village Law itself contains a complete system for the collection of taxes. These provisions in the Village Law, however, relate to the procedure for the collection of taxes. The question of personal liability is determined by the Tax Law, and is a matter of substantive law applying to all owners of real property within the State.

The plaintiff contends that the Village Law creates a personal liability for village taxes without limitation as to residence or any other particular, and without reference to any other law. (Village Law, § 126; Cons. Laws, ch. 64.) A reading of this section shows that it does not expressly or impliedly impose liability, but merely confers power upon villages to maintain actions to collect unpaid taxes if and when liability therefor exists. Whether or not any liability exists depends upon the conditions prescribed by section 71 of the Tax Law.

It follows that the orders appealed from should be reversed, the motion granted, with costs in all courts, and the question certified answered in the affirmative.

Lehman, O’Brien, Httbbs and Loughran, JJ., concur; Rippey, J., dissents; Crane, Ch. J., talcing no part.

Orders reversed, etc.


author: Hubbs, J.

text:
    County Securities, Inc., Respondent, v. Alice Seacord, Appellant, Impleaded with Others.
    Argued April 18, 1938;
    decided May 24, 1938.

      Lyle Evans Mahan and Morgan H. Seacord for appellent.
    The transfer of tax lien act is invalid. The City Council had no power to pass an act providing the manner of collecting taxes. (Genet v. City of Brooklyn, 99 N. Y. 296; Gautier v. Ditmar, 204 N. Y. 20; Matter of District No. 2, Town of Brookhaven, 214 App. Div. 40; Matter of Brooklyn Children’s Aid Society, 166 App. Div. 852; Browne v. City of New York, 241 N. Y. 96; Cleveland v. City of Watertown, 222 N. Y. 159; People ex rel. Brewster v. Wendell, 196 App. Div. 613; Gould v. Gould, 245 U. S. 151; New York Steam Corp. v. City of New York, 268 N. Y. 137; Garfield v. New York Tel. Co., 268 N. Y. 549.) The City Council had no power to prescribe a method of enforcing transfer of tax liens. (Riglander v. Star Co., 98 App. Div. 101; 181 N. Y. 531; Adler v. Deegan, 251 N. Y. 467; Schieffelin v. Leary, 219 App. Div. 660; Gennis v. Milano, 135 Misc. Rep. 209; Matter of Siracusa, 125 Misc. Rep. 882.)

      Sidney II. Posner, Reuben v. K. Posner, Aaron Simmons and Murray C. Fuerst for respondent.
    The transfer of tax lien act is valid. (Matter of Mooney v. Cohen, 272 N. Y. 33; Gautier v. Ditmar, 204 N. Y. 20; Matter of

      Osborn v. Cohen, 272 N. Y. 55; Bareham v. Rochester, 246 N. Y. 140.) The right to foreclose tax liens is a remedy which the City Council had the right to provide. (Adler v. Deegan, 251 N. Y. 467.)
   Hubbs, J.

The city of New Rochelle was formerly governed by a charter granted by the Legislature by chapter 559 of the Laws of 1910. In 1932, acting under the provisions of chapter 363, Laws of 1924, chapter 76 of the Consolidated Laws, known as the City Home Rule Law,” it purported to amend its charter but in general effect it adopted a new charter. (Local Law No. 1, 1932, p. 209.) The original charter and the charter as amended contained a complete plan for the assessment and collection of taxes. It provided for the collection of delinquent taxes by the sale of the land assessed. After the new charter went into effect, the city, by Local Law No. 5 (Local Laws 1932, p. 270), purported to amend its charter by providing that liens for unpaid taxes might be sold to the person making the best offer and foreclosed by the purchaser by action in the Supreme Court. Taxes assessed against appellant remaining unpaid, the city, acting under the provisions of Local Law No. 5, proceeded to sell the tax hen at auction. Respondent purchased the tax hen and started to foreclose it. Appellant by answer asserted that the sale of the tax hen was void as the Legislature had not conferred upon the city authority to change the method of collecting dehnquent taxes. The question presented is whether the Legislature, by the City Home Rule Law,” conferred upon the city authority by local law to change the tax law as embodied in the city charter granted by the Legislature. If it had such jurisdiction it must be found in the amendment to the Constitution (N. Y. Const, art. 12, §§ 2-4) and the City Home Rule Law ” adopted pursuant to such constitutional amendment. Prior to the adoption of the constitutional amendment and the enactment of the City Home Rule Law ” the enactment of tax laws was exclusively a State function. (6 McQuillin on The Law of Municipal Corporations, § 2523; People ex rel. Griffin v. Mayor, 4 N. Y. 419.)

That did not mean, however, that the State might not delegate to a county or city power to assess and collect taxes in different ways. (Gautier v. Ditmar, 204 N. Y. 20.)

If the Legislature had, prior to the enactment of the City Home Rule Law ” or since its enactment, expressly granted to the city of New Rochelle authority to collect delinquent taxes by the sale of tax liens instead of by the sale of the property itself, such grant of power would clearly_have been constitutional. (Gautier v. Ditmar, supra.)

Many statutes have been enacted by the Legislature conferring upon cities and counties special methods for the assessment and collection of taxes. (Cf. Town of Amherst v. County of Erie, 260 N. Y. 361.)

The power of taxation, being a State function, the delegation of any part of that power to a subdivision of the State must be made in express terms. It cannot be inferred. (6 McQuillin on The Law of Municipal Corporations, §§ 2531, 2523; City of Rochester v. Bloss, 185 N. Y. 42; Village of Charlotte v. Keon, 207 N. Y. 346; City of New York v. Matthews, 180 N. Y. 41; Matter of Second Ave. M. E. Church, 66 N. Y. 395.)

The “ City Home Rule Law ” conferred upon cities certain definite powers. The powers conferred have been stated in the case of Browne v. City of New York (241 N. Y. 96) as follows: Neither the Constitution of New York nor the City Home Rule Law confers these blanket powers upon the cities of this State. The local laws must touch a city in its property, affairs or government, but this alone will not support them. There is yet another restriction. They must touch the city’s property, affairs or government in one or more of certain enumerated ways, i. e., by relating ’ (1) ‘ to the powers, duties, qualifications, number, mode of selection and removal, terms of office ’ or £ compensation ’ of £ officers and employees of the city/ or (2) ‘ the transaction of its business, the incurring of its obligations/ or the presentation, ascertainment and discharge of claims against it/ or (3) £ the acquisition, care, management and use of its streets and property/ or (4) ‘ the wages, salaries, hours of labor, etc., of employees of its contractors and subcontractors/ or (5) the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health ’ ” (p. 119). Since the decision in that case the statute has been changed to read “ including but not limited to ” instead of relating to.” (Laws of 1928, ch. 670; Laws of 1929, ch. 646; City Home Buie Law, art. 2, § 11.)

Nowhere in this or any other statute can be found an express grant of power to cities to' enact local laws which have the effect of changing the method of collection of taxes provided for in the original charter and the general Tax Law (Cons. Laws, ch. 60).

It is urged that the general words of the constitutional amendment and the "City Home Rule Law" indicate an intent to confer power upon cities to enact local laws which change the method of collection of taxes. It is pointed out that the collection of delinquent taxes touches a city in its “ property, affairs or government ” and in the transaction of its business.” However, the words property, affairs or government ” have a narrow significance. (Adler v. Deegan, 251 N. Y. 467.) Not all laws which touch a city in its property, affairs or government ” can be controlled by local laws. A law which affects the State at large is not subject to change by a local law although the State law may affect a city in its “ property, affairs or government.” No local law shall supersede any provision- of an act of the legislature relating to the property, affairs or government of cities which provision in terms and in effect applies alike to all cities, nor any provision of an act of the legislature which provision relates to matters other than the property, affairs or government of cities, whether in terms and in effect applying alike to all cities or not, nor any provision of an act of the legislature enacted pursuant to article twelve of the constitution on an emergency message from the governor and by the concurrent action of two-thirds of the members of the legislature.” (City Home Rule Law, § 12, subd. 2.)

The general Tax Law of the State provides for the sale of the property in the enforcement of tax liens. (Tax Law, art. 7.) That law applies in all cases except where the Legislature by express language has provided a different method to be employed in certain subdivisions of the State. (Tax Law, § 160.) The Local Law No. 5 cannot supersede the general Tax Law of the State, as it is in direct conflict with section 12, subdivision 2, of the “ City Home Rule Law ” above quoted, whether it be construed to be a local law which touches the city in its “ property, affairs or government ” or not.

We do not pass upon the other questions presented.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Lehman, O’Brien, Lotjgbran, Finch and Rippey, JJ., concur; Crane, Ch. J., taking no part.

Judgments reversed, etc.


author: Lotjghran, J.

text:
    The People of the State of New York, Respondent, v. John Manning, Appellant.
    Submitted April 15, 1938;
    decided May 24, 1938.

      Mordecai Konowitz for appellant.
    It was reversible error for the trial court to instruct the jury with respect to the failure of the defendant to call certain witnesses. (People v. Apicello, 275 N. Y. 222; People v. Kearns, 214 App. Div. 804.) The trial court’s charge to the jury was not a fair and impartial presentation of the issues. (People v. Fanning, 131 N. Y. 659; Weave v. United States, 1 Fed. Rep. [2d] 617; People v. Stiglin, 238 App. Div. 407; People v. Thomas, 240 App. Div. 101; People v. Velleman, 247 App. Div. 172; People v. Raymond, 249 App. Div. 121.) The court erred in charging that Mrs. Martello was a disinterested witness “as a matter of law.” (People v. Walker, 198 N. Y. 329; People v. Viscio, 241 App. Div. 499; People v. Oerdvine, 210 N. Y. 184.)

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellant had a fair trial and no error may be found in the court’s charge. (People v. Koenig, 180 N. Y. 155; People v. Johnson, 185 N. Y. 219; People v. Gilbert, 199 N. Y. 10; People v. Spriegel, 143 N. Y. 107; Sindram v. People, 88 N. Y. 196; People v. Fanning, 131 N. Y. 659; People v. Osmond, 138 N. Y. 80; People v. Leach, 146 N. Y. 392; People v. Smith, 180 N. Y. 125; People v. Persce, 204 N. Y. 397; People v. Crowley, 102 N. Y. 234; People v. Hovey, 92 N. Y. 554.) The court properly charged the jury with respect to the appellant’s failure to call certain witnesses. (People v. McGovern, 105 App. Div. 296; People v. McWhorter, 4 Barb. 438; People v. Bodine, 1 Den. 281; People v. Dyle, 21 N. Y. 578.)
   Lotjghran, J.

Defendant appeals from his conviction of the felony of having a firearm concealed upon his person, without having a license therefor, after having been convicted of a crime. (Penal Law, § 1897, subd. 4.) There was evidence sufficient if credited to establish guilt beyond a reasonable doubt.

Mb’s. Lillian Martello testified that in the early morning of the occasion mentioned in the indictment she was aroused by noise outside premises managed by her as a rooming house; that she looked out the window of her basement bedroom and saw the defendant standing near the stairs leading to the main entrance to the building; that she told him to go away; and that thereupon he came to the window from which she had addressed him, pointed a gun at her and said, “ Open up, I am a police officer.” The testimony of police officers summoned by Mrs. Martello was that when they arrested the defendant in a nearby restaurant a loaded revolver was found in a pocket of his overcoat.

In submitting the issue to the jury, the trial judge said: “ I charge you that Mrs. Martello is a disinterested witness. She has nothing to gain or lose by the outcome of the case. I charge you that the question of interest of any witness is a matter for the jury unless, as a matter of law, that witness is charged to you by the court to be disinterested.” This was error —- the more so because there was evidence of friendly relations between Mrs. Martello and the officers who arrested the defendant. (See 2 Bishop’s New Criminal Procedure, § 979; People v. Gerdvine, 210 N. Y. 184.)

The trial judge also charged: Well, gentlemen, upon the hypothesis that what Mrs. Martello testified to was true three other charges could have been made and can still be made because the Statute of Limitations has not run against it — one is, impersonating an officer, the other is disorderly conduct, and the other is assault —■ pointing a gun at Mrs. Martello. But you are not concerned in that — you cannot speculate on that — you have only one charge before you — ■ whether or not any other charges have been made or could be made and were not made is really immaterial. If the officers had a good case on the gun they did not have to go any further.” The vice of this irrelevant commentary was not alleviated by any plain direction that the jury were the sole judges of the facts. On the contrary, at the close of the charge, the trial judge said: “ Questions of law are all for the court and all of these instructions on the evidence and upon the manner in which it may be considered in resolving as to its truth are instructions on the law.”

In his charge the trial judge also said: “ If a witness is peculiarly a witness for one side in a case and the absence of such witness is not satisfactorily accounted for by that side of the case the jury has a right to ask that, if that witness was put on the stand, that witness would not testify favorably to the side of the case. Now I charge this in reference to failure to produce Pius, who is admitted to have been there and who was used by the defense on a previous trial of this case; * * * and the short stocky man with the glasses, whose name is not mentioned, who came in with the defendant according to the testimony of other witnesses for the defense — who is he and why isn’t he here and how is his absence explained? ” This was error. There was evidence that some person named Pius was present when the defendant was arrested. But there is nothing in the case to suggest that this person was sworn on a former trial of the indictment or otherwise to identify him with the defendant. Nor does anything in the record tend to connect the defendant with the other man referred to, except the circumstance that they entered together the place where the arrest occurred. All else that appears in respect of that man is that he did not remain in the company of the defendant at the time.

The defendant did not testify for himself. As to this, the trial judge charged the jury: Now, the law says that a defendant has the right to take the stand as a witness in his own behalf but for his failure or refusal to do so no inference of guilt shall be drawn against him. That means just what it says. The judge is not permitted to comment on it. You may not infer or presume innocence. You simply must not infer anything except to know that he did not take the stand, and your task is to decide the .pose upon the believable evidence of witnesses who did take the stand.” This was error. “ In the trial of a criminal case it can never be necessary to add anything to the plain and simple language of the statute on this subject. The fact that the accused does not testify in his own behalf cannot be permitted to create any presumption against him. That is the plain mandate of the law, and the force of the proposition should not be weakened and destroyed with the jury by qualifying words.” (People v. Fitzgerald, 156 N. Y. 253, 266.)

There were also collateral proceedings before the jury that unnecessarily and inevitably prejudiced the defendant. These are sufficiently noticed in the dissenting opinion of Taylor, J., in the court below (253 App. Div. 744).

We are constrained to conclude that this defendant did not have the fair and impartial trial without which no person is to be deprived of his liberty under our law.

The judgments should be reversed and a new trial ordered.

Lehman, Hubbs, Finch and Rippey, JJ., concur; Crane, Ch. J., dissents; O’Brien, J., taking no part.

Judgments reversed, etc.


author: Finch, J. Htjbbs, J.

text:
    Lindlots Realty Corporation, Respondent, v. County of Suffolk, Appellant.

      Argued March 16, 1938;
    decided May 24,1938.

      Harold R. Medina, Vahan H. Kalenderian, John W. Jordan and Edgar F. Hazleton for appellant.
    The plaintiff’s cause of action is barred by the five-year Statute of Limitations contained in section 132 of the Tax Law (Cons. Laws, ch. 60). (People v. Turner, 117 N. Y. 227; 145 N. Y. 451; Meigs v. Roberts, 162 N. Y. 371; Halsted v. Silberstein, 196 N. Y. 1; Bryan v. McGurk, 200 N. Y. 332; Dunkum v. Maceck Building Corp., 256 N. Y. 275; Robbins v. Abrew, 275 N. Y. 233; People ex rel. McGuinness v. Lewis, 127 App. Div. 107; Doud v. Huntington Hebrew Congregation, 178 App. Div. 748; Marx v. Hanthorn, 148 U. S. 172; Wallace v. McEchron, 176 N. Y. 424; Dinniny v. Brown, 148 App. Div. 671; People v. Francisco, 76 App. Div. 262; People v. Pulver, 226 App. Div. 416; People v. Bain, 60 Misc. Rep. 263; People v.
      Faxon, 111 Misc. Rep. 699; Morgan v. Turner, 35 Misc. Rep. 399; Matter of Burlingham Land & Improvement Co. v. Hoyle, 255 N. Y. 554; Budd v. Franco, 194 App. Div. 803; People ex rel. Stephens v. Supervisors, 104 App. Div. 176; Minnesota Loan & Investment Co. v. Beadle County, 18 S. D. 431; Camp v. Smith, 136 N. Y. 187.) The plaintiff in the purchase of the titles involved was bound by the rule of caveat emptor. (Coffin v. City of Brooklyn, 116 N. Y. 159; Traktman v. City of New York, 241 N. Y. 221; Shelton v. Klickitat County, 152 Wash. 193; Minnesota Loan & Investment Co. v. Beadle County, 18 S. D. 431; Wilson v. Salt Lake City County, 57 Utah, 274; Red River Land Co. v. Harris, 42 N. D. 76; Keyes v. State, 121 Me. 306; Churchman v. City of Indianapolis, 110 Ind. 259; Gerding v. Haskin, 141 N. Y. 514; Troy Automobile Exchange v. Home Ins. Co., 221 N. Y. 58.) The remedy of rescission on the ground of fraud against the county is not available to this plaintiff. (Guilfoyle v. Pierce, 125 App. Div. 504; 196 N. Y. 499; Fox v. Hirschfeld, 157 App. Div. 364; Ettar Realty Co. v. Cohen, 163 App. Div. 409; Insurance Co. v. Park & Pollard Co., 190 App. Div. 388; 229 N. Y. 631; Persky v. Bank of America Nat. Assn., 261 N. Y. 212.) The unauthorized action of the county in giving “ bargain and sale deeds ” containing “ representations ” is not binding upon the county. (Supervisors of Rensselaer County v. Bates, 17 N. Y. 242; Donovan v. City of New York, 33 N. Y. 291; Lyddy v. Long Island City, 104 N. Y. 218; Village of Fort Edward v. Fish, 156 N. Y. 363; Freel v. Queens County, 9 App. Div. 186; 154 N. Y. 661; De Grauw v. Supervisors of Queens Co., 13 Hun, 381.)

      Clarence J. Shearn and Martin Lippman for respondent.
    The defendant is foreclosed by the pleadings, concessions and agreed limitation of issues upon the trial from urging that section 132 of the Tax Law is a Statute of Limitations against the action and that plaintiff has not the right to maintain the action. (Queck-Berner v.
      Macy, 240 N. Y. 341; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447; H. K. & S. Bk. Carp. v. Cooper, 114 N. Y. 388; Civ. Prac. Act, § 242; Richardson v. Gregory, 219 App. Div. 211; Rodger v. Bliss, 130 Misc. Rep. 168; Katz v. Katz, 136 Misc. Rep. 377; Nehasane Park Assn. v. Lloyd, 167 N. Y. 431; Bommer v. American Spiral Hinge Mfg. Co., 81 N. Y. 468.) Section 132 of the Tax Law, even if properly before the court, would not bar the enforcement of the rights of plaintiff against the defendant county. (People ex rel. Hall v. Woodruff, 57 App. Div. 342; People ex rel. Sudam v. Morgan, 45 App. Div. 19; Matter of Overmeyer v. Hamilton, 232 App. Div. 781; Robbins v. Abrew, 275 N. Y. 233.) The plaintiff is entitled to maintain the action. (Scholfield Gear & Pulley Co. v. Scholfield, 71 Conn. 1; Crystal Pier Amusement Co. v. Cannan, 25 Pac. Rep. [2d] 839; Iowa Economic Heater Co. v. American Economic Heater Co., 32 Fed. Rep. 735; Henry v. Dennis, 95 Me. 24; Mason v. Harris, 11 Ch. Div. 97; Hollwedel Co. v. Auerbach & Co., 67 Misc. Rep. 148; International Agricultural Corp. v. Carpenter, 190 App. Div. 359; 232 N. Y. 568; Dupignac v. Bernstrom, 37 Misc. Rep. 677; Bommer v. American Spiral Hinge Mfg. Co., 81 N. Y. 468; Van Schaick v. Third Ave. R. R. Co., 38 N. Y. 346; Morgan v. Bon Bon Co., 222 N. Y. 22.) The doctrine of caveat emptor does not apply. (Jackson v. State, 210 App. Div. 115; Mead v. Bunn, 32 N. Y. 275; Hadcock v. Osmer, 153 N. Y. 604; Bystrom v. Villard, 175 App. Div. 433; Acunto v. Wiggins, 234 App. Div. 705; Kathan v. Comstock, 140 Wis. 427; Barnes v. U. P. Ry. Co., 54 Fed. Rep. 87; Brownell v. Town of Greenwich, 114 N. Y. 518.) The plaintiff showed misrepresentation of material facts, reliance thereon and prompt action upon discovery of the falsity of the representations and was, therefore, entitled to the judgment granted. (Moore v. Mayor, 73 N. Y. 238; Lowe v. City of New York, 240 App. Div. 484; Chapman v. County of Douglas, 107 U. S. 348; Bloomquist v. Farson, 222 N. Y. 375; Junius Construction Corp. v. Cohen, 257 N. Y. 393; Colin v. Hamilton Fire Ins. Co., 251 N. Y. 312; Corbitt v. Transportation Shares, Inc., 256 N. Y. 685; Bosley v. National Machine Co., 123 N. Y. 550; Haebler v. Crawford, 258 N. Y. 130; Tryon v. Lyon, 133 App. Div. 798; Pitcher v. Sutton, 238 App. Div. 291; 264 N. Y. 638; People ex rel. Crane v. Ormond, 178 App. Div. 151; 221 17. Y. 283; Houghton v. Thomas, 220 App. Div. 415; 248 17. Y. 523.)
   Finch, J.

In addition to the facts heretofore set forth, it appears that the county acquired title to these lots between 1915 and 1922 and did not resell them to the plaintiff until 1926. Thus, from four to eleven years elapsed between the time that the county purchased these lots at the tax sales and the sale to the plaintiff. In 1932, plaintiff made a conveyance of part of these properties to Brogreen Corporation. The latter sought registration under the Torrens Act. (See Real Property Law, art. 12, Cons. Laws, ch. 50.) In that proceeding in 1933, the defendant county interposed a verified answer, asserting that the applicant had no title whatsoever in the property for the reason that the statutory notice required by the Tax Law (Cons. Laws, ch. 60) had not been given at the time of the tax sales, and that as a result the tax sales were null and void. Accordingly the proceedings for registration were dismissed at the request of the county. Early in 1933 the defendant instituted condemnation proceedings affecting some of these parcels for an extension of the Sunrise highway. In such proceeding this defendant county contested the right of the plaintiff to an award, contending that the sale at which the county acquired title to this property was defective juris (fictionally, and, therefore, the conveyances to the plaintiff were void. This plaintiff, having learned in these proceedings of the invalidity of its titles, declined to accept the awards made and elected to rescind the' transaction and commenced this action.

At the trial both sides proceeded upon the assumption that no question of fact remained in the case. The specific contentions urged by the county at the trial were two, namely, that while it was conceded that the deeds in 1926 did not convey good title, the defects had been cured in 1932; secondly that if, on the other hand, no title had vested, the action to recover was at law and was barred by the six-year Statute of Limitations. In addition the trial court considered the defense of caveat emptor.

The trial court found not only that all the representations made by the county of Suffolk were duly authorized, but that they constituted and were intended by the county of Suffolk to constitute a substantial inducement to the purchaser acting for and on behalf of the plaintiff to accept the conveyances and pay over to the defendant county of Suffolk the total consideration of upwards of $76,000; that the representations so relied upon were so substantial and fundamental as, if false, to defeat the object of the parties and destroy the essential objects of the conveyances. Judgment was entered for plaintiff. Upon appeal to the Appellate Division, defendant urged (1) that the action was barred by the five-year Statute of Limitations contained in the Tax Law (§ 132); (2) that the plaintiff was not the immediate purchaser from defendant and hence could not maintain an action for rescission, and (3) that the principle of caveat emptor applied. The judgment of the Trial Term was affirmed unanimously.

The recitals in the deeds, that the notices of such tax sales had been published at least once in each week for six weeks immediately preceding such tax sales were recitals of fact. (Eaglesfield v. Marquis of Londonderry, 4 Ch. Div. 693; Burns v. Lane, 138 Mass. 350.)

The claim is raised now that the representations incorporated in the deeds were not authorized by the resolution of the Board of Supervisors which authorized the sale and, therefore, were not binding upon the county and that the comity may keep the money and repudiate the representations. While this claim might have been urged under the general denial in the answer it was not raised or mentioned at the trial nor in the motion to dismiss. Hence this issue would not seem available upon appeal. Are we able to say that if plaintiff had not been disarmed and lulled into inaction by the abandonment of this issue at the trial, this record might not have contained some further evidence bearing upon the authority of the County Treasurer to execute the deed in exactly the form in which it was executed? If the form of deed as in the case at bar had been used for a long period of time, the resolution as passed by the Board might be construed as granting the authority assumed by the County Treasurer. We cannot say that other authority might not also have been shown. It is to be noted that nothing in the resolution precluded the County Treasurer from making the representations which he made. The resolution authorized him to negotiate a sale in his discretion, the representations were germane to the transaction, and nothing in the resolution prohibited him from representing how the lands were acquired. Ordinarily the difference between a quitclaim deed and a full covenant warranty deed is the omission of the usual covenants, but it does not follow that a statement as to how the lands were acquired should also be omitted. In fact the authority of the County Treasurer, by the terms of the resolution, was limited to a sale of lands acquired at a tax sale, and in order to be within the authority conferred, the deed should show upon its face that the lands were acquired at a tax sale. In fact some charters require such recital in similar deeds. (See Coffin v. City of Brooklyn, 116 N. Y. 159.)

Assuming, however, that the defepse is here on the merits, it is undisputed that a municipality cannot be made liable for breach of contract, or services rendered, or sales price, or even for use and occupation of property acquired, when an official of the municipahty has exceeded his power or authority. (Village of Fort Edward v. Fish, 156 N. Y. 363; Donovan v. Mayor, 33 N. Y. 291; Supervisors of Rensselaer County v. Bates, 17 N. Y. 242.)

But this principle has no application to an action brought in equity for rescission, to recover moneys acquired through misrepresentation or fraud. Although the misrepresentations in the deeds were innocently made, plaintiff may bring an action in equity for rescission and recover. (Town of Lyons v. Chamberlain, 89 N. Y. 578; 1 Bigelow on The Law of Fraud, § 8.) Since in the case at bar the object sought is money still in the hands of the municipahty, it does not detract from the application of the principle that the rule does not apply if the parties cannot be restored to their original positions. (Lyddy v. Long Island City, 104 N. Y. 218.)

It is argued, however, that this rule has no application in the case at bar for the reason that the plaintiff had no right to rely upon an unauthorized act of a public official, since the authority of the County Treasurer was a matter of record and plaintiff is conclusively presumed to have known the extent of this authority. While this may preclude an action for deceit, it does not bar rescission. (American Law Institute, Restatement of the Law of Agency, § 258, comment c; § 259; Restatement of the Law of Restitution, § 62, comment b.) A governmental body cannot repudiate the act of the official and retain the money received as a result of the act. Although, as noted, no one may acquire property from a county through an unauthorized act of its officials, yet here the shoe is on the other foot, and the county is seeking to retain moneys acquired through misrepresentations. A municipality, no more than an individual, may not enrich itself through misrepresentations, authorized or unauthorized. (Bloomquist v. Farson, 222 N. Y. 375; Smith v. Countryman, 30 N. Y. 655; Vail v. Reynolds, 118 N. Y. 297. Cf. American Law Institute, Restatement of the Law of Restitution, § 62, comment b.) If this were not so, what limit would exist to the means through which a municipality might acquire money.

Nor does the rule of caveat emptor apply. The county had the option to sell this property by bargain and sale deed, with the mere recital that it was acquired at a tax sale and without other representation. In such case, the doctrine of caveat emptor would apply. The defendant, however, through its officer, chose to obtain such advantages as it could by selling this property through additional representations which turned out to be false. In such case the doctrine of caveat emptor obviously would not apply. The case of Traktman v. City of New York (241 N. Y. 221), relied upon by the defendant, involved merely the running of a statute of limitations. In Coffin v. City of Brooklyn (116 N. Y. 159) the recitals in the deed were different than in the case at bar, and plaintiff proved only a mistake of law and not one of fact.

It is further urged that by reason of lapse of time the plaintiff has now obtained a valid title although it did not possess good title in 1926. It was entitled, however, to the valid title in 1926. The sale was one transaction, not two separate transactions. It was one transaction in which there were misrepresentations made and money paid in the belief that these representations were true. If plaintiff were seeking damages for breach of warranty or specific performance, he could not succeed. Plaintiff is not concerned alone with the giving of the deed, but with the giving of the deed induced by the representations as a result of which plaintiff made the purchase.

The defendant continues to urge that section 132 of the Tax Law, containing a five-year statute of limitations, precludes recovery. It is sufficient to say that a statute of limitations, to be availed of, must be pleaded. Such pleading was lacking in the case at bar. Moreover, this statute does not apply to the present action. This section regulates tax sales by the county, whereas other sections of the Tax Law relate to sales by the county of land which it has previously acquired at tax sales. (Tax Law, §§ 123, 151.)

It is likewise -urged that plaintiff, not being the original grantee, may not bring this action in rescission. At the trial plaintiff sought to show that the present plaintiff was the real party in interest from the beginning, but was precluded from showing this fact because of the insistence of the trial judge that defendant raised no issue in this regard, and counsel for the defendant acquiesced in this statement and ruling. Under such circumstances defendant is now precluded from -urging this issue in this court.

It follows that the judgment appealed from should be affirmed, with costs.

Htjbbs, J.

(dissenting). The appellant county of Suffolk bid in the land here in question at tax sales. Thereafter, it received deeds of the property so bid in executed by the County Treasurer. The respondent acquired record title to the land in question through deeds from the county. The deeds from the county were quitclaim deeds executed by the County Treasurer, which contained a statement that the premises were duly sold * * * after due notice in accordance with law.”

Thereafter, the respondent ascertained that notices of the tax sales at which the county became the purchaser were not published according to law. The title of the county, because of the failure to publish the notices of sale in accordance with the terms of the statute, section 151 of the Tax Law, was defective. (Bamonte v. Ocean Beach-Fire Island Co., 248 N. Y. 642.)

Thereupon the respondent brought this action against the county to recover the amount paid to it for such land, with interest. Thus far it has been successful. The county resisted payment upon various grounds but the principal question here involved is whether the county was bound by the statement contained in the deeds. The county having received deeds of the land in question which it bid in at tax sales was empowered to dispose of it upon such terms as shall be determined by a majority of the board of supervisors.” (Tax Law, § 154.)

The Board of Supervisors passed a resolution in the following words:

“ Resolved, that in cases where tax deeds have been given and are held by the County of Suffolk, the Comity Treasurer be and he hereby is empowered and directed, in his discretion, to release and quitclaim to any applicant any lot, piece, or parcel of land or property which has heretofore or may hereafter be conveyed by any county treasurer to the county of Suffolk because of any sale for taxes, upon payment,” etc.

That is the resolution introduced in evidence by respondent and relied on by it as authority for the County Treasurer to execute the deeds delivered to respondent. That resolution only authorized the giving of a “ release and quitclaim.” It did not authorize the County Treasurer to incorporate in the deeds a warranty or representation. The alleged representation incorporated in the deeds executed by the County Treasurer in the name of the county relied upon by respondent was not authorized by the resolution and is not binding upon the county. The resolution constituted the only authority to bind the county. Any one accepting a deed from the county executed by the County Treasurer was chargeable with knowledge of the terms and limitations of the resolution and the nature and extent of the officer’s authority. (44 Corpus Juris, p. 87, § 2167; Freel v. County of Queens, 9 App. Div. 186, 189; modfd., 154 N. Y. 661.)

We are obliged, therefore, to treat the deeds under which the respondent claims as ordinary quitclaim deeds which conveyed only such title as the grantor had. From such deeds there arises no implication that the preliminary proceedings leading to the tax sales had been properly complied with. The acceptance of such deeds could not by any possibility give rise to a cause of action for rescission, at least in the absence of active positive fraud and there is no claim here of such fraud.

The County Treasurer was in no sense a general agent of the county with power to bind it by representations. The respondent and its agent when accepting the deeds in question must be presumed to have known the limitations on the authority of the County Treasurer; must have known that his authority was derived from the Board of Supervisors and should have ascertained the extent of such authority.

One entering into a contract with a municipality through an official thereof is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract.” (3 McQuillin on The Law of Municipal Corporations, § 1268.)

If they exceed their power and authority, the municipality is not liable. (Id. vol. 2, § 519; 2 Dillon on The Law of Municipal Corporations [5th ed.], § 777 ;Freel v. County of Queens, supra.)

A reading of the resolution would have disclosed that the County Treasurer was not authorized to make representations in the deeds which would bind the county. The statement contained in the deeds being unauthorized, the county was not bound by it. (Freel v. County of Queens, supra; Supervisors of Rensselaer County v. Bates, 17 N. Y. 242.)

We believe that the general principles stated above are beyond question. It is urged, however, that those principles only apply in an action against a county to enforce a contract but have no application in an action against a county not to enforce a contract but to recover money paid in reliance upon statements alleged to constitute representations. Such is the case where a county has obtained property upon the supposition that it had the power to contract, when in fact it did not have such authority, and the contract could not be enforced because of lack of power on the part of the county to make it. In such a case it has been decided that one who has transferred possession of property to a county and cannot recover the agreed purchase price, may recover the property unjustly held by the county. (Chapman v. County of Douglas, 107 U. S. 348.)

That principle has no application in the case at bar, because the respondent as a matter of law had no right to rely upon the unauthorized statement of the County Treasurer. His authority was a matter of record and plaintiff is conclusively presumed to have known the extent of his authority. Any declaration of his as to the extent of his authority is not binding on the county in an action on the contract.

The county treasurer, in making the sale of the certificate issued to the county, is not authorized to make any representations or guarantees in connection with such sale.” (Minnesota Loan & Investment Co. v. Beadle County, 18 S. D. 431, 435.)

The rule of caveat emptor applies at common law to purchasers of tax titles. A purchaser of a worthless title cannot recover from a county the amount paid. He purchases at his peril. That is true even if statements are made in the instrument of conveyance as in this case. (Coffin v. City of Brooklyn, 116 N. Y. 159, 166; Traktman v. City of New York, 241 N. Y. 221, 229.)

Various reasons have been given by the court for the rule. Those reasons have been collated in a note in 77 A. L. R. at page 824. The same reasons apply to a purchaser from a county which has bid in property at a tax sale, has taken a deed, and as a part of the proceeding for the collection of the tax, conveys the property by quitclaim deed to another. The court has so decided, as we believe correctly, in each case, brought to our attention, in which the question has been passed upon. {Shelton v. Klickitat County, 152 Wash. 193; Minnesota Loan & Investment Co. v. Beadle County, supra; Parrott v. Abernathy, 58 S. D. 603; 77 A. L. R. 818; Wilson v. Salt Lake County Corp., 57 Utah, 274; Red River Valley Land Co. v. Harris, 42 N. D. 76. Cf. Keyes v. State, 121 Me. 306.)

No contrary conclusion was reached in Robbins v. Abrew (275 N. Y. 233). The question here presented was not considered in that case. The question there involved was which of two parties, holding deeds of the same land executed by the County Treasurer, had the prior right.

The judgment should be reversed and complaint dismissed, with costs.

Crane, Ch. J., O’Brien, Lotjghran and Rippey, JJ., concur with Finch, J.; Hhbbs, J., dissents in opinion in which Lehman, J., concurs.

Judgment affirmed.


author: O’Brien, J. Hubbs, J.

text:
    In the Matter of Rose M. Sheridan, Respondent, against John J. McElligott, as Fire Commissioner of the City of New York, Appellant.
    Argued March 8, 1938;
    decided May 24, 1938.

      William C. Chanler, Corporation Counsel {James Hall Prothero, Paxton Blair and Charles E. Hirsimaki of counsel), for appellant.
    It was error for the court to permit the finding of the Medical Board and the decision of the Fire Commissioner to be annulled by a jury verdict, where there is no proof of error or arbitrary conduct. (Matter of Nash v. Brooks, 276 N. Y. 75; People ex rel. Bliel v. Martin, 131 N. Y. 196; Matter of Kelly v. Morgan, 245 App. Div. 59; 272 N. Y. 666; Matter of Albano v. Hammond, 268 N. Y. 104; Matter of Agoglia v. Mulrooney, 259 N. Y. 462; People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84; 245 U. S. 345; Matter of Ormsby v. Bell, 218 N. Y. 212; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Gallagher v. Valentine, 246 App. Div. 576; Matter of McCabe v. Mulrooney, 235 App. Div. 632; Matter of Rowlands v. Teachers’ Retirement Board, 241 App. Div. 861.)

      Edward M. Edenbaum, T. J. Gillen and Ralph O. L. Fay for respondent.
    It was not error for the court to annul an erroneous finding of the Medical Board and the decision of the Eire Commissioner based thereon. (Matter of Potts v. Kaplan, 264 N. Y. 110; Flood v. McElligott, 249 App. Div. 608; Ramsay v. Hayes, 187 N. Y. 367; Matter of Ulster County v. State Dept. of Public Works, 211 App. Div. 629; People ex rel. Empire City Trotting Club v. State Racing Comm., 190 1ST. Y. 31; People ex rel. Lodes v. Department of Health, 189 N. Y. 187; Matter of Hodgins v. Bingham, 196 N. Y. 123; People ex rel. Williamson v. Scannell, 34 Misc. Rep. 709; People ex rel. Kane v. Drennan, 106 Misc. Rep. 40; People ex rel. Young v. Sturgis, 85 App. Div. 20; 176 N. Y. 563; Roddy v. Valentine, 268 N. Y. 228.)
   O’Brien, J.

Petitioner is the widow of Arthur A. E. Sheridan who died while a member of the uniformed force of the Fire Department of the city of New York. The petition alleges that he died in February, 1936, as a result of injuries sustained by him at a fire. At the time of his death his salary was $3,000. Petitioner has been awarded a pension of $600 per annum. This mandamus proceeding is brought to compel the Fire Commissioner, as trustee of the relief fund of the Fire Department, to award to her an annual pension of one-half her husband’s salary, or $1,500. It is based upon the provisions of section 791, Greater New York Charter (Laws 1901, ch. 466, as amd.), as it existed at the time of the death of petitioner’s husband. This section provides that the annual allowance to the representative of a member of the uniformed force who shall die during his term of service “ shall be six hundred dollars,” and that, in the case of the death of such a member resulting from actual performance of his duties, the trustee of the relief fund “ shall have the power ” to award to the widow an amount not to exceed one-half of his compensation at the date of his decease.

Assuming that the death of petitioner’s husband February 22, 1936, resulted from injuries sustained by him at a fire February 1, 1936, does section 791 impose a mandatory duty upon the Fire Commissioner to grant a pension in excess of $600? In any event, the pension “ shall ” be not less than $600, but, in the case of death resulting from active duty, the Commissioner “ shall have the power ” to award a sum indefinite in amount but not more than half the salary of the deceased fireman. Concede, if we please, that the fireman’s death resulted from injury while actually engaged in the performance of his duty. The most that can be said is that the Fire Commissioner has the power to award a pension in an amount not to exceed one-half of his salary. This discretion is vested in the Fire Commissioner and is not reviewable by the courts. (People ex rel. Bliel v. Martin, 131 N. Y. 196.) The contrast between the words “ shall ” be $600 and “ shall have the power,” used in the same section of the statute, indicates in the latter instance a legislative determination that the Commissioner’s decision shall be final. The language is merely permissive and, therefore, petitioner has failed to show a clear legal right.

The orders should be reversed and the petition dismissed, without costs.

Hubbs, J.

(dissenting). Arthur Sheridan, petitioner’s husband, served for twelve years as a uniformed fireman in New York city. On February 1, 1936, he was injured in the line of duty while serving at a fire. He died three weeks thereafter. His yearly compensation at the time of his death was $3,000. Section 791 of the city charter, as amended by Local Law No. 24 of 1930 (Local Laws, 1930, p. 84), provided, as it existed at the time in question, that an annual allowance to the widow of a member of the uniformed force who shall die during his term of service shall be $600. Also that in case of the death of such a member resulting from actual performance of his duties, the trustee of the relief fund “ shall have the power ” to award to the widow an amount not to exceed one-half of his compensation at the time of his death. Appellant, as trustee of the relief fund, awarded petitioner a pension of $600 per annum. She applied for an award of $1,500 per annum, one-half of the annual compensation received by her husband. Appellant referred the matter to the Medical Board of the Eire Department. That board reported that petitioner’s husband did not die as a result of the injuries which he received at a fire while serving in the Fire Department. Appellant, basing his action upon the report of the Medical Board, denied petitioner’s application for an increase of pension from $600 to $1,500 per annum. The Medical Board in reaching its conclusion acted entirely without the knowledge of petitioner. It based its report upon its records.

There is no statutory provision which confers upon the Medical Board or upon appellant the power and authority to determine in a given case whether the death of a fireman was caused by injuries received in the line of duty. The law is silent as to how that question is to be determined. It simply provides that if a fireman dies as the immediate effect of injuries received, the trustee shall have the power ” to award to the widow annually one-half of the amount of the annual compensation received by the deceased fireman.

Petitioner applied for an alternative mandamus. It was granted and a jury has found upon sufficient evidence that petitioner’s husband died as the immediate result of injuries received at a fire.

Whether the determination of the Medical Board and appellant that the deceased did not die as a result of the injuries which he received is conclusive, depends upon the wording of the law under which they acted. If the charter provision had provided that the appellant should act upon a certificate of the Medical Board, then his action based upon such a certificate properly made would be conclusive and his act could not be reviewed. In this case, the power of the appellant to act by granting an increased pension depends upon the existence of a fact, i. e., that deceased came to his death as a result of injuries received in the performance of his duties. That was a question of fact which the petitioner had a right to have determined in court. (Matter of Hodgins v. Bingham, 196 N. Y. 123; Matter of Brand v. Teachers’ Retirement Board, 163 Misc. Rep. 217; People ex rel. Cunningham v. Hayes, 66 Misc. Rep. 531.)

That question has been determined and it is now established that petitioner's husband died as the result of his injuries. The refusal of the appellant to grant the increased pension was, therefore, based on a false premise. Relying as he did on the report of the Medical Board that petitioner’s husband’s death did not result from his injuries received in the line of duty, he had no authority to grant an increased pension. He never exercised his discretion. Petitioner has a legal right to have him exercise his discretion upon the true facts which have now been established by the judgment here under review.

How can it be assumed on this record that if the Medical Board had reported that petitioner’s husband had died as a result of his injuries, appellant would only have allowed a pension of $600 per annum? “ If by reason of a mistaken view of the law or otherwise there has been in fact no actual and bona fide exercise of judgment and discretion, as, for instance, where the discretion is made to turn upon matters which under the law should not be considered, or where the action is based upon reasons outside the discretion imposed, mandamus will lie.” (38 Corpus Juris, 599.)

The above-quoted statement is abundantly supported by the decisions of this court. (People ex rel. Empire City Trotting Club v. State Racing Commission, 190 N. Y. 31; Ramsay v. Hayes, 187 N. Y. 367.)

If the trustee’s action “ is based upon false information,” petitioner is entitled to review that determination by mandamus. (People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194.)

The appellant undoubtedly possesses a wide discretion and when properly exercised should not be reviewed by the courts. In the case at bar he has never exercised his discretion as he relied upon a report of the Medical Board which, if correct, deprived him of discretion to allow a larger pension. A larger pension could only be allowed in case the fireman died as the result of his injury and the Board reported that he did not.

Petitioner has a legal right to have the appellant exercise his discretion based on the facts.

“ The concept embodied in the word pension has developed far beyond the original idea of a bounty or gratuity.” (Roddy v. Valentine, 268 N. Y. 228, 231.)

The order of the Special Term went too far if it be interpreted to mean that it ordered that the pension should be granted for $1,500. That order deprives the appellant of the discretion vested in him under the charter.

The matter should be remitted to the trustee to exercise his discretion in passing upon the petition, having in mind that it has now been established that the petitioner’s husband died as the result of his injuries.

The orders of the Appellate Division and Special Term should be modified and the matter remitted to the trustee to proceed in accordance with this opinion, with costs to the respondent. (See 278 N. Y. 694.)

Crane, Ch. J., Lotjghran and Finch, JJ., concur with O’Brien, J.; Htjbbs, J., dissents in opinion in which Lehman and Rippey, JJ., concur.

Orders reversed, etc.


text:
    Board of Education of the City of White Plains, Respondent, v. Walter Rogers et al., Constituting the Common Council of the City of White Plains, et al., Appellants.

      Argued April 18, 1938;
    decided May 24, 1938.

      William B. Gondit, Corporation Counsel (Samuel Faile of counsel), for appellants.
    Chapter 470 of the Laws of 1917, constituting section 268-a of the charter of the city of White Plains, is in full force and effect and delegates authority to the Common Council to reduce the educational budget. (Matter of Hirshfield v. Cook, 227 N. Y. 297; Statutes and Statutory Construction, McKinney’s Consolidated Laws, book 1, § 172; People ex rel. Strough v. Canvassers, 77 Hun, 372; People v. Quig, 59 N. Y. 84; Matter of Commissioners of Central Park, 50 N. Y. 493; Matter of Emerson v. Buck, 230 N. Y. 380.)

      George L. Allin and J. Henry Neale for respondent.
    Article 33-B of the Education Law (Cons. Laws, ch. 16) prevails over section 268-a of the charter of the city of White Plains. (Matter of Jaffe v. Board of Education, 240 App. Div. 402; Matter of Board of Education v. Baker, 241 App. Div. 574; Matter of O’Donnell v. Morrissey, 151 Misc. Rep. 315; Smith v. Donahue, 202 App. Div. 656; Matter of Washington S. A. & P. R. R. Co., 115 N. Y. 442.) Article 33-B of the Education Law gives to the Board of Education the exclusive power and duty to fix the salaries of the administrative, supervising and teaching staffs subject only to the minimum requirements set by the same statute. (Smith v. Donahue, 202 App. Div. 656; Matter of Fuhrmann v. Graves, 235 N. Y. 77; Matter of Emerson v. Buck, 230 N. Y. 380.)
   Finch, J.

This is a submitted controversy. The question involved is the power of the municipal officials of the city of White Plains to reduce or limit the annual estimate or budget of the Board of Education of said city.

The Board of Education prepared a budget for the year 1938. After adoption of this budget by the Board the Mayor, by written communication to the Common Council, recommended reductions in the amounts fixed by the Board for salaries in each of the four classifications, administrative, supervision and teaching, school libraries, and school health service. The total reductions amounted to approximately $16,000. Subsequently the tax budget was adopted by the Common Council without specifying any items but merely reducing the total of the budget submitted by the Board of Education. The power of the Mayor and the Common Council to reduce at all, and the manner of the reduction, if the power does exist, are the questions presented.

Pending the decision of this controversy the amount of $16,394.90 was raised and deposited to the credit of the Board of Education.

The Appellate Division, two justices dissenting, granted judgment in favor of plaintiff, decreeing that the Common Council of the city of White Plains was directed to include in the annual tax and assessment roll, without any reductions, the budget of the Board of Education of said city.

The facts in so far as necessary to present the question submitted are briefly as follows:

The city of White Plains, a municipal corporation, was created in 1915 (Laws of 1915, ch. 356). It is a city of the third class. The charter of the city prior to 1917 provided in substance that the Board of Education should adopt a budget, send a copy to the Mayor, who might disapprove and note his objections thereon, and return it within five days to the Board. Five members of the Board could overrule these objections (Charter, § 267). In 1917, section 267 of the charter was repealed, and section 268-a (Laws of 1917, ch. 470) was enacted. This latter section provides that within twenty days after submission of the budget by the Board of Education the Mayor may “ recommend to the common council reductions in the several amounts fixed therein by the board of education * * * but the common council shall not increase such amounts nor vary the terms and conditions thereof, nor insert any new items; the common council shall thereupon act upon any such recommendation of the mayor and the amount of such estimate or budget as amended by the common council in accordance with such recommendations * * * shall be included in the annual tax and assessment roll of the city for the ensuing year.” In the same year the Legislature amended the Education Law (Cons. Laws, ch. 16) by enacting article 33-A (Laws of 1917, ch. 786). Article 33-A provides for the establishment of a board of education in all cities of the State. Subdivision 3 of section 877, entitled “Annual estimate,” provides:

“ 3. In a city of the third class in which the common council, under statutes in effect prior to the time when this act takes effect, has the power to determine the amount of funds which shall be included in the estimate for the support and maintenance of public schools, and in any such city in which the mayor under such statutes has the power to consider and determine the amounts included in such estimate for the support and maintenance of public schools, such common council and mayor shall have the same power and shall perform the same duties as are required under the statutes in effect prior to the taking effect of this act, and the provisions of such statutes shall continue in full force and effect notwithstanding the provisions of this act. Nothing in this act shall be construed as conferring upon the common council of a city of the third class the power to determine the amount which shall be used for school purposes, which was not specifically conferred upon the common council of such city under the statutes in effect prior to the taking effect of this act. Where the mayor, under a statute in effect prior to the taking effect of this act, reduces or eliminates items in the estimate for the support and maintenance of public schools in the city, he must return such estimate to the board of education, stating his reasons for making such reductions or eliminations, within ten days after the filing of such estimate, and thereupon the board of education may take action on such estimate and may by a three-fourths vote of the members of the board restore the items so reduced or eliminated, and the estimate shall thereupon become effective and the amounts specified therein shall be levied and collected in the same manner as other city taxes are collected.”

The Board of Education contends that section 268-a of the charter, which permits reductions in the budget of the Board of Education by the Common Council on receipt of recommendations by the Mayor, was repealed by article 33-A. Article 33-A does not specifically refer to section 268-a, so that to sustain this contention it is necessary to hold that this section 268-a of the charter of the city of White Plains is inconsistent with article 33-A, and, therefore, repealed by implication. In this connection it is to be noted that section 268-a of the charter of the city of White Plains became law only about a month before the enactment of article 33-A. It would follow because of the short interval between the enactment of the two measures that they were both pending before the Legislature at the same time. The general rule, that repeal by implication is not favored, applies with peculiar force to statutes enacted at the same session of the Legislature. (Statutes & Statutory Construction, McKinney’s Consolidated Laws of New York, Book 1, § 172.) Furthermore, the general rule in reference to repeal applies, namely, that a private or local law is not deemed repealed by general legislative act unless the legislative intent is clear. Although many other statutes were noted as specifically repealed by article 33-A, no reference was made to section 268-a. Normally, if section 268-a was to be repealed, specific reference to it would have been made. All these considerations tend to show that section 268-a was not repealed by implication.

Weightier reasons, however, lead to the conclusion that there was no intention to repeal section 268-a. The first is that it was saved from repeal by subdivision 3 of section 877, quoted above, which provides that where in a city of the third class the Common Council had the authority to fix the amount of school funds prior to the enactment of article 33-A, this power shall remain unchanged. In addition, this court has indicated that the intent of the Legislature in enacting article 33-A was to establish Boards of Education with greater independence in the administration of school affairs, leaving intact in the legislative body of each locality some control over the amount of the budget which the Board of Education could compel the city to raise. (Matter of Emerson v. Buck, 230 N. Y. 380; Matter of Fuhrmann v. Graves, 235 N. Y 77.) In Matter of Fuhrmann v. Graves the general principle was applied that the Board of Education in the city of Buffalo had sole and exclusive authority to employ Superintendents and fix their salaries. It was in no way controlled by the City Council except as to the total amount which could be expended for educational purposes. The Board, in the exercise of its discretion, must determine for itself how the money within its control shall be expended, to the end that an efficient system of education in the city shall be maintained.” (p. 83). In Matter of Emerson v. Buck (supra) it was held that chapter 786 of the Laws of 1917 created independent Boards of Education with all the control over educational matters formerly possessed by the city, but that this statute conferred upon the Board of Education no authority to make an estimate which the Common Council must accept without criticism and appropriate the money required, no matter how much the other activities of the city may suffer. The Council still has the power to reduce as a whole the estimate of the Board of Education, as well as the estimate of other departments, and such reduction must be accepted.

We, therefore, reach the conclusion that section 268-a of the charter of the city of White Plains was not repealed by article 33-A of the Education Law, but still regulates the relationship existing between the Board of Education and defendants.

A consideration of section 268-a shows that the Mayor may recommend to the Common Council reductions in the several amounts fixed by the Board of Education. These, however, are only Recommendations to the Common Council so as to show that the total amount recommended for reduction in the budget is not arbitrary or whimsical, but based upon definite recommendations. The Council, however, only has the power in acting upon these recommendations of the Mayor to amend the budget as to the total amount which shall be expended for education purposes. The wording of section 268-a is as follows: “ Such itemized estimate or budget shall be filed with the clerk of the common council and a copy thereof shall be presented to the mayor, who shall thereupon have twenty days in which to consider such estimate and to recommend to the common council reductions in the several amounts fixed therein by the board of education * * * but the common council shall not increase such amounts nor vary the terms and conditions thereof, nor insert any new items; the common council shall thereupon act upon any such recommendation of the mayor and the amount of such estimate or budget as amended by the common council in accordance with such recommendations, and not otherwise, * * * shall be included in the annual tax and assessment roll * * * and shall be placed to the credit of the board of education.” (Italics interpolated.)

Section 268-a of the charter of the city of White Plains thus brings the relationship between the Board of Education and the city government within the principle laid down in Matter of Fuhrmann v. Graves (supra). The Common Council is given the right only to reduce the total amount of the budget, although the Mayor, in mailing his recommendation to the Common Council, shall point out how this total amount is arrived at by recommending reductions in the several amounts fixed by the Board of Education. This prevents the action of the Mayor from being arbitrary and shows the Common Council how the total amount of deductions is arrived at. On the other hand, the Board of Education has the power to determine how the money within its control shall be expended. An efficient system of education, therefore, may be maintained under the responsibility of the Board of Education. The Mayor and the Common Council in this submitted controversy carried out the provisions of section 268-a.

It follows that the judgment appealed from should be reversed, without costs, and the Commissioner of Finance of said city of White Plains directed to retain the sum of $16,394.90 on deposit to the credit of the Board of Education, and to include the same as part of the estimated revenues which shall be applied to reducing the budget of the Board of Education for the year 1939.

Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur; Crane, Ch. J., taking no part.

Judgment accordingly.