author: Denio, Ch. J.

text:
    In the matter or the Petition of the Trustees of the New York Protestant Episcopal Public School, on the application of Charles H. Davis, Jr., Joseph Bresley, Robert Somerville, James B. Warden.

      It seems, the State, or a local division of it acting under the law of the Stat.e, seizing and selling lands for non-payment of taxes, or of public charges in the nature of taxes imposed on such lands, act administratively and not judicially.

      It seems, in prescribing the mode of proceedings for levying and collecting taxes, &c., the legislature may make use of judicial tribunals and judicial forms, or they may not, as seems most convenient and conducive to the object •in view.
    It is in the discretion of the legislature to provide that the whole or any portion of lands sold for taxes or charges, Ac., made upon the lands by the laws of the State, Ac., shall be sold in fee or otherwise.
    The raising of money for local improvements is an exercise of the taxing power inherent in the legislature; and this power to tax implies the power to apportion the tax territorially, as the legislature shall see fit.
    The act of 1859 (ch. 392), subjecting certain lands devised by John Baker, in 1Í96, in trust for the maintenance of the charity scholars, Ac., under the management of Trinity Church, in the city of New York, to local legislation, Ac., is constitutional and valid. ♦

      It seems, that the legislature have power to regulate and change the forms of proceedings in all cases - where no vested rights have been acquired under existing laws.
    While it is incompetent for the court to order the sale of lands to raise a fund in anticipation of future assessments thereon, it is competent to order the sale of a quantity sufficient to pay existing assessments, though the legality of a part of such assessments be disputed.
    Where the order of sale provides, in terms, that the referee appointed to make the sale shall apply the purchase-money, first, to the satisfaction of all valid liens upon the property sold, for the purpose of giving to the purchaser an unincumbered title; and, second, that the residue shall be applied to the satisfaction of valid assessments existing at the time of the report of the referee; such an application of the produce of the sale, made before the power of sale had been exhausted, is valid.
    Where, by the statute authorizing the proceedings of sale, Ac., the estate of the heirs having a reversion in the lands sold are excepted from the sale, and the purchasers of the fee objected to completing the purchase because of the possible existence of such heirs, the court held, that, although such heirs might possibly be in existence, and might assert their title to the reversion when the life estates had terminated, yet the improbability of the" existence of such heirs might be such as not legally to affect the title of such purchasers of the fee.

      The act of 1806. vesting the remainder of the estate devised hy John Baker, &c., in the school corporation, according to the intent of said act, is constitutional and valid.
    ' A sale of land was made under an order of the Supreme Court of first district, at Special Term, and the above named persons became purchasers, severally, of distinct parcels, and deposited with the referee sums equal to ten per cent on the several amounts bid by them respectively.
    They united in an application to the court for an order that these sums should be returned to them. Counter applications against them, severally, to compel them to complete then respective purchases, were made by the trustees of the school. All these applications were heard together, before the court, at Special Term, and an order was made that the purchasers should receive back their moneys, with costs.
    The material facts of the case are as follows:
    In 1796, John Baker died, seized in fee of these lands, having devised all his real estate to a number of persons, severally and successively, for life, and the remainder to the governor of this State, for the time being, “in fee simple,” in trust, to receive the rents, &c.,- and apply the same to the education, support and maintenance of the charity scholars “ belonging to the charity school under the care and management of the corporation of Trinity Church, in the city of New York.” Such a charity school had existed for more than half a century previously, and still continues. Some of the devisees for life are still living. The testator left no heirs; he left no descendants; and his collateral relatives were aliens, and incapable of taking real estate by inheritance.
    In 1806 (March 14) an act of the legislature was passed, by which, after reciting that this school, for a considerable number of years, had, by voluntary contributions, been maintained and kept up, and had lately been endowed by the corporation of Trinity Church, by their grant and conveyance of certain real and personal estate to John Charlton, Benjamin Moore, and others named, in trust, to manage and dispose of the same for the benefit of the school (which con'veyance had been made), it was enacted that these trustees, and their successors, should be incorporated, by the name of The Trustees of the First Protestant Episcopal Charity School, in the city of Hew York. (Laws of 1806, chap. 52, p. 126.)
    By the sixth section of the act, all the estates whereof those trustees, in virtue of the grant, &c., above recited, or otherwise, were seized, or possessed, or entitled unto, were granted to, and vested in the trustees of the corporation so created by the act.
    By the seventh section it was enacted that the said truste.es should have, and take, and they were thereby authorized to have, take and hold, all such property and estates, as should, or might have been theretofore devised or bequeathed by any pious or well disposed person, &c., for the use or benefit of the Protestant Episcopal Charity School, under the direction of Trinity church, by whatsoever name or description the said school might be designated, &c.,
    This act was approved by the council of revision, by a resolution in the following words:
    “ Resolved, That it does not appear improper to the council that this bill should become a law of this State.” (Session laws of 1806, p. 133.)
    [The council of revision consisted of Governor Lewis, (formerly chief justice), Chancellor Lansing, Chief Justice Kent, and Judges Thompson, Spencer, Brookholst Livingston and Tompkins.]
    This act was amended by an act passed April 16, 1827, and the corporate name changed to that of “The Hew York Protestant Episcopal Public School.” (Laws of 1827, ch. 289, p. 315.)
    By the first clause the trustees were authorized to establish and maintain, in addition to, and connected with their charity school, one or more schools or departments, for instruction in English literature, mathematics, philosophy, and classical learning, and to receive pay scholars in any of the schools.
    By the second clause, it was enacted that the corporation should, and might take and hold, all such estates and property as might have been heretofore given, devised, or bequeathed, by any person, for the use or benefit of the charity school formerly under the direction of Trinity church, by whatsoever name or description the school might have been designated.
    In 1838 (December 10th), the devisees for life then surviving, granted and demised to Thomas Hogg, for their several lives, a part of the property devised to them, (not including any part of the property in question in this cáse), and James Hogg, Thomas Hogg, Peter Hogg, James Bannister and Ellen, his wife, claim to be entitled to the interest under this lease.
    In 1856 (May 1), the devisees for life then surviving, granted to the Hew York Protestant Episcopal Public School (the petitioners in this case), all the property devised to them, subject to the said lease to Thomas Hogg.
    The school had been continually maintained and was still in existence, having between sixty and seventy beneficiaries, who received yearly stipends of fifty dollars to some, and of thirty dollars to others, besides instruction, books and stationery, and other beneficiaries who received gratuitous instruction and books and other stationery. . ■ ■ ■
    Very heavy assessments having been imposed on this property, and there being reason to expect that other assessments would be imposed, an act was passed by the legislature in 1859, (April 16th), empowering the Supreme Court at a Special Term in the first district, on the petition of the trustees of the school, or of any person holding a life estate in any part of the lands, after due notice to such trustee, and to the holder of such life estate, to order a sale and conveyance of such portions of the lands as should be necessary to pay any assessment or assessments imposed or to be imposed on said lands or any part thereof, which sale was to be conducted in such manner and upon such notice and under such restrictions as the court might direct, but no such sale or conveyance was to impair or affect the right of any lessee of any part of said lands, or any right therein or claim thereto of any heir of said John Baker.
    By the third clause, it was enacted that any surplus money • • arising from such sales, should be held by the court, and paid under its order to the party entitled thereto. (Laws of 1859, ch. 392, p. 920.)
    Under this law, a petition was presented to the Special Term of the Supreme Court in the first district, by the trustees of the Hew York Protestant Public School, stating the facts which have been mentioned, and praying that an order might be made for a reference to a referee to ascertain what * assessments had been made on the property, and whether any part, and if any, what part ought to be sold to pay the assessment, and for an order for the sale of such part, &e.
    This petition was served on various persons, claiming to have an interest under the will of John Baker, and on the attorney-general.
    On hearing the counsel for the petitioners, and counsel who appeared for the attorney-general, and for James Hogg and Thomas Hogg, an order of reference to the Hon. Edward P. Cowles, was made to take proof of facts, and ascertain what assessments had been made, whether any and if any, what part of the property ought to be sold, &c., and to inquire into all facts relating to the title of the petitioners.
    The referee, having been attended by counsel for the petitioners, and by counsel for the persons claiming the estates under the will, and for the people of the State, and for the attorney-general, made a report. He reported that the facts stated in the petition were true; he set forth the assessments, and expressed the opinion • that a part of the property ought to be sold, and the proceeds applied to the payment of taxes; but that no part embraced in the lease to Thomas Hogg should be sold; and he designated the particular part which in his opinion could be most properly sold.
    Copies of the depositions taken by the referee, exhibits, &c., were annexed to his report.
    On this report, and on notice to all the parties, an order was made by the court at Special Term, by which it was adjudged and declared that a sale of certain designated portions of the property was necessary for the proposes men tioned, and it was ordered that such sale should be made; particular directions as to the mode of sale, &c., were contained in the order.
    By a subsequent order of the court, on an affidavit and notice to all the parties, other portions of the land were substituted in the place of those in the previous order directed to be sold, on which it was found there were adverse claims which would injure the sale and prevent a full price being obtained; such substituted portions being subject to no incumbrance by lease or otherwise.
    Pursuant to this order, a sale was made; and various lots were purchased by different persons.
    Some of these purchasers afterwards refused to complete their purchases, and they made a joint application to the court for an order to be discharged from their purchases, and for a return of the money which they had paid in part at the time of the sale. They set forth in their application the grounds of their objection to the title.
    Counter applications against them to compel them to perform their agreements were made by the petitioners.
    The court heard these various applications together as one motion, and made one general order discharging all these purchasers, and directing the money paid by them to be returned to them with interest and costs.
    This order was affirmed on appeal to the General Term.
    The petitioners have appealed to this court from the order of affirmaneé.

      Bidwell & Strong, for the appellants.

      A Wakeman, for the respondents.
   Denio, Ch. J.

If the statute of 1859 can be sustained as an exercise of the legislative power of local taxation, several of the suggestions, which it would otherwise be necessary to consider, will be inapplicable. When the State, or a local division of it, acting under a law of the State, seizes and sells land for the non-payment of taxes, or of public charges in the nature of taxes imposed on such land, the proceeding is administrative and not judicial. The legislature may or may not make use of judicial forms or judicial tribunals, as shall seem most convenient, or most conducive to the object in view, and most advantageous to the State and to the taxpayers. The general laws for the assessment and levying of State and county taxes, and the special statutes under which assessments are laid and collected in cities and villages, are examples of this kind of legislation. No judgment of a court is ordinarily required from the commencement to the conclusion of the process, and if a judicial agency for some part of the proceeding is provided in particular cases, as in the confirmation of the report of commissioners of estimate and assessment in the city of New York, it is not because the matter is judicial in its nature, or because such a mode of determining questions is, in such cases, required by any provision of the Constitution, but merely from considerations of convenience and general propriety. This principle is not disputed by the counsel for the purchasers in this case, so far as the imposing of the burthens which were sought to be enforced by those sales are concerned. It is not questioned but that the assessments were legally laid upon the several portions of the farm devised by the will of John Baker. By the general law the mode of enforcing payment of such assessments was, by exposing the several portions separately charged to a sale for the shortest term of years for which any one would take them and pay the assessment and the charges. It would have been equally within the power of the legislature to have provided that the whole or a portion of the premises charged should have been sold in fee simple, as is done in respect to State, town and county taxes; and whether one or the other mode should be resorted to, was simply a question of legislative discretion. By an act passed in 1855 (ch. 321), it was provided that where there were present and future estates in the same land, vested or contingent, so that the distribution of a burthen charged upon it by tax or assessment among the different owners would raise questions of difficulty, any party in interest was entitled to apply to the court by action to be commenced against the other owners, who were to be brought in by process or advertisement, and the court was authorized to give judgment for a sale in fee simple of the whole or such part of the land charged as should be required to pay the tax, and an order was to be made for a just and equitable apportionment of the burthen among the several owners, and for the application of the proceeds of the sale accordingly. This was, no doubt, an expedient enactment, but it was not required by any constitutional principle. The legislature might have directed the land to be sold in fee, or for a term, and have left the question open to adjustment between the parties by ordinary action between themselves.

The act of 1859 (ch. 392) was a law of the same general nature. It seems to assume that there was some reason of justice, or convenience, for taking assessments laid upon the parcel of land devised by John Baker, out of the general provisions of law for enforcing assessments for public improvements. As to a part if not the whole of it, there was a present and one or more future estates, which assimilated the case to those provided for by the act of 1855. But the act of 1859, now in question, is special and limited in its operation, being confined to the forty-five acres of land devised by Baker, and affects only the persons interested in that land. It is rarely judicious to direct acts of legislation to the case of a limited number of persons, or to a separate parcel of property. It is ordinarily, if not always, better to leave every person to the operation of the general laws of the State; and where these are found to operate unequally there are usually principles of the common law which will enable the parties to adjust the rights and equities which exist between themselves. The act of 1859 is also peculiar in applying the new method of enforcing payment, to assessments which had been laid and confirmed prior to the passage of the act, as well as to future assessments. Two questions then arise: first, whether the act is invalid on account of its restricted character in respect to the persons and property to be affected; and second, whether it is invalid on account of the circumstance that it is made applicable to existing assessments, and provides a method for the enforcement, different from that which was provided by law when the assessments were made.

First. A few years ago a case arose in the second judicial district respecting the validity of a local assessment. By an ordinance of the city of Brooklyn, passed in conformity with the charter of that city, the expense of constructing a sewer for the particular benefit of the owners of property upon certain streets, was directed to be assessed upon a specified district embracing the lots fronting on those streets. The proceedings of the city council were removed into the Supreme Court by ceriiora/ri, where they were reversed and set aside by the General Term in that district, on the ground that the legislature had no authority to provide for the imposing of such a burthen upon a locality other than one of the local divisions of the State. The principle was laid down in the opinion of the court in this language: “ Legitimate taxation is limited to the imposing of burthens, or charges, for a public purpose, equally upon the persons or property within a district known or recognized by law as possessing a local sovereignty for certain purposes, as a State, county, town, village, &c.and the court conceded that the rule would exclude from the operation of the taxing power all those cases in which the expenses of laying out public squares, of opening or widening streets, or of other like improvements, are charged upon certain persons or property in consequence of supposed benefits. (The People v. The Mayor, &c., of Brooklyn, 6 Barb., 209, An. 1849.) Shortly after-wards a case arising in the same city, involving the same principle and decided in the same way by the Supreme Court, was heard in this court upon appeal. The whole doctrine of assessments for local improvements was elaborately considered in a very interesting opinion prepared by Judge Buggles, in which the views of the Supreme Court on the first mentioned ease were carefully examined, and this court, with the concurrence of all the judges, reversed the judgment appealed from. It was held that raising money for a local improvement was an exercise of the taxing power inherent in the legislature, and that this power of taxation implied a power to apportion the tax (territorially), as the legislature should see fit, and moreover that this power of apportionment had no limit where there was no constitutional restraint, and that the constitutional inhibition against depriving a person of life, liberty or property without due process of law, and forbidding private property from being taken for public use without just compensation, had no application to the case. The principle might be further illustrated by reference to legislative precedents and adjudged cases, but the opinion of Judge Ruggles furnishes all which it seems necessary to be said upon the question. It follows, from what has been observed, that it would have been legally competent for the legislature to have formed the parcel of land devised by Baker into a separate district for the purpose of administration respecting assessments for public improvements, and to have subjected it to a system of local legislation different from that which prevailed in other portions of the city. It is true that the reasons which influenced the legislature in the cases like those arising in Brooklyn, namely, the compelling the persons and property locally benefitted to defray the expenses of the improvements, were different from those which one may suppose to have prevailed in enacting the statute of 1859. The condition of the title to the property was, doubtless, in the latter case the motive for subjecting it to an exceptional system. But the power of the legislature being established, they are the sole judges of the motives upon which they shall proceed, and their will must stand for the reason of their act. I have not laid any stress upon the circumstance, that all the parties having an apparent interest were notified, and actually appeared, in the proceedings which followed the presentation of the petition of the school corporation. The case not being in its nature within any of the general laws which regulate judicial processes, it was sufficient if the parties promoting the proceedings conformed to the special prescriptions of the statute, and this appears .to have been done. And it was not essential to the constitutional legality of the statute that it should have authorized a jui*y trial, or in any other way have conformed to the rules which relate to judicial controversies between citizen and citizen. In executing the taxing power, the legislature provides such agencies and safeguards against surprise, mistake or injustice as is thought expedient. It is manifestly proper that the tax-payers should have notice of the imposition proposed to be laid upon them, and an opportunity for making suggestions and explanations to the proper administrative board or officer; and this is generally secured in all well considered systems of taxation. But it is for the legislature to determine and prescribe in every case what shall be sufficient,- and there is not, that I am aware of, any constitutional provision bearing on the subject. It has been made a question whether the act under consideration authorizes a sale in fee simple. It provides for a sale and conveyance in general terms without any allusion to a lesser estate than one in fee. The assessments which were to be satisfied bound the land as such, and all estates and interests which every person had in it, and there is nothing in the act to suggest the idea that a partial interest was to be the subject of the sale.

Second. As to the assessments already established, and where nothing remained but to enforce the payment of such assessments, the statute took up the matter in medÁo¡ and changed the system under which the collection was to be made. The obligation to pay the amounts had been created, and the land had been charged according-to the pre-existing law. I do not perceive any constitutional objection to the change which was made. The act of 1855, the constitutionality of which has been established, presented the same feature; The proceeding was subjected to the new system even where it had gone so far as a sale of the premises for a term of years. A sale of a part under the judgment of a court was authorized for the purpose of raising money to effect a redemption, or to pay the tax if a sale had not taken place. This act of 1855 had been held constitutional by an express judgment of this court. (Jackson v. Babcock, 16 N. Y., 246.) It does not distinctly appear whether the assessment in question, in that case, had been laid before the passage of the act, but from a comparison of the dates I think it must have been so. But, however this may have been, the power of the legislature to regulate and change the forms of ‘procedure in all cases, where no vested rights have been acquired under the existing law, cannot be questioned. (Stocking v. Hunt, 3 Denio, 274; Gould v. Morse, 1 Kern., 281.) Many of the amendments of the Code of Procedure, as is well known, were made to take effect upon existing suits.

There is a point made in the affidavits of the purchasers, and repeated in the brief of their counsel, that some of the lots were sold under the proceedings had before the Special Term, after sufficient had been raised by the prior sales to pay all the valid assessments existing against the land when the order for the sale was made, and when the sale took place. I think it was not the intention of the act to provide by sales of parts of the land for a fund to pay indefinite future assessments when they should be made. The Supreme Court, it is true, is authorized to order sales of any such portions of the lands as shall be necessary to pay any assessment or assessments imposed, or to be imposed, upon the said land.” (Sec. 1.) This expression, I think, was used to show that the remedy was to be a continuous one, and to apply to cases of future assessments when they should be made, and not to confer an authority to sell in advance of such assessments and such sales, to satisfy prospective charges of that nature, which would scarcely fall within any just idea of exercising the power of taxation; and if not, it would be difficult to defend such a provision from the charge of violating the constitutional injunction which secures private property from legislative confiscation. But assuming the construction of the act to be such as I have supposed, I do not perceive that too many lots have been sold. The amount of unpaid assessments, as ascertained by the referee’s report, and determined by the order, was $26,600.52; but of this amount $18,533.12 were challenged as illegal assessments, and it was said that suits were pending to set them aside. The court fixed upon a definite parcel, distinctly described, as necessary and proper to be sold, and this parcel was to be and was in fact divided into convenient lots by the referee, who was charged with the duty of selling, and he sold so many lots as brought $18,790. This was less than the aggregate amount of the unpaid assessments as ascertained by the order, but more than the sum of those which were undisputed. It was competent for the court to order a sale to the amount of the unpaid assessments, though questions might be made as to some of them, and the sales which were actually made, would have been valid, upon the facts appearing upon the papers, prior to the motion of the purchasers. Upon that motion it was shown on them part, that the disputed assessments had been adjudged void by a competent court, before the sale took place, but the corporation showed upon its part, that the progress of municipal improvement had not ceased while these proceedings were progressing; but on the contrary, between the report of the first referee and the sale, additional assessments to the amount of $72,260.64 were laid upon different parts of the premises; and that after the sale and before the hearing of the motion to be relieved, several other large amounts were assessed, so that at the last mentioned period the premises, or parts of them, were legally chargeable with the large sum of $22,374, exclusive of interest. But it may be said that the lots should not have been sold to pay assessments, which were not in existence when the proceeding was commenced, or at least at the date of the report, on which the order for sale was made. The answer given to this is, that the order of sale provided, in terms, that the referee appointed to make the sale should apply the purchase-money in the first place to the satisfaction of all valid liens upon the property sold, which was directed for the purpose of giving to the purchasers an unencumbered title; and then the residue of the pimehase-money was to be applied to the satisfaction of valid assessments existing at the time of the report of the first referee, so that the actual produce of the sales was not the nominal amount at which the lots were struck off to the purchasers, but the surplus after deducting the amount paid to extinguish the intervening liens. In the statement made on behalf of the purchasers, to show the sum which, under the order of sale was to he raised, the damages assessed in favor of the governor as trustee was deducted, as it ought to have been if it had been paid; but it was shown on the other side that the city comptroller had refused to pay it over. Hence, the amount to be raised by the sales was not reduced by that circumstance. If it shall be eventually paid pursuant to the direction of the order, it is evident that there will be sufficient employment for it in the payment of subsequent assessments. I conclude, therefore, that it has not been shown that any lots were sold after the power to sell had been exhausted.

The result of these views is, that the sale in question was made pursuant to a valid act of the legislature passed in the execution of the power of local taxation.

I have assumed hitherto, that there was some interest in the Baker farm belonging to parties who were not required by the act of 1859 to participate, and who did not in fact participate in the legal proceedings which were had in the Supreme Court, and who could not, therefore, be affected by those proceedings. The act itself exempts from the effect of the sale the interest of any lessee, (other of course than the petitioners), and also of the heirs of Baker. The latter, if they exist, could have no estate, provided the devise to the governor of the ultimate remainder, was valid. On the supposition that it was not valid, they would be seized of a vested interest in reversion, and the question would be, whether the absence of heirs of Baker was so conclusively shown that the land would be forced upon the purchasers by the Court of Equity. Baker died sixty-seven years ago in the city of Hew York, leaving no. descendants, and without any known collateral relatives in this country. One of the witnesses examined before the referee understood that he had-a brother, one Sir Charles Baker, in England. The petition contains the following statements on the point: “that no person has at any time, or in any way set up, or asserted, any claim to said premises as an heir-at-law of said John Baker, to the information or belief of your petitioners, that as they are informed, and believe, he left no descendants now surviving, and that his collateral relations and their descendants, were alien subjects of the king of Great Britain, and incapable of taking said premises by inheritance, and that your petitioners have no notice or information of any kind, or degree, that there is any person whatever claiming to be, or reported to be, an heir or relative of John Baker.” And the referee reports that he finds all material statements in the petition to be true. But as by the act the rights of the heirs, if there were any, were expressly saved, there, is nothing in the nature of an estoppel by judgment in these procedings, to affect them if they should hereafter appear. It is to be observed also that the estate in reversion has not yet taken effect in possession, the life estates not having yet terminated, and that by possibility the persons entitled as heirs may be awaiting the extinction of those estates to enter upon their inheritance. Still if there had been any collateral heirs who were residents of or residents in this. country, according to all common experience their existence would have been known in the city of Sew York. Although not yet entitled to the enjoyment of the estate, by reason of the prior limitation, they would as reversioners have been interested in its management, and in any transaction respecting the title, and it is scarcely conceivable that some one of the numerous persons to whom interests in the property were given by the will of Baker, would not have been made aware of their existence. It is more easy to suppose that there may be descendants of collateral relatives extant in England, but being aliens to this country, they would be incapable of inheriting. Upon this branch of the case my conclusion, formed with some hesitation I admit, is, that the existence of heirs is so improbable that it is not to be considered as prejudicing the title. The purchasers have all the title which the State can confer, and if the land has escheated for defect of heirs of Baker, or their alienage, those purchasers will by force of the act of 1806, hold under the title by escheat. Supposing the devise of the final remainder to have been void, it was still a devise in terms for the use and benefit of the Protestant Episcopal Charity School, and was therefore embraced within the provisions of the seventh section of the act, which authorizes the corporation to take and held all estates so devised. The act would at least furnish a good title as against the State.

But I am of the opinion that the devise to the governor for the time being, in trust to take and receive the rents and profits of the land, and apply them to the education and support of the charity scholars of this school, was a valid charitable devise. The school it is true, was not incorporated, but it was a distinct and well known institution, and there was a competent trustee authorized to take when the remainder should vest in possession. The case of Williams v. Williams (4 Seld., 525), determined that the law of charitable uses, as it existed in England at the time of the revolution, and the jurisdiction of the Court of Chancery over the subject, became the law of this State upon the adoption of the Constitution of 1777. In that case, as in this, the direct disposition was to a trustee competent to take an estate devised upon valid trusts, though that was not considered material by the judge by whom the opinion was prepared. Subsequent cases in this court have perhaps limited the application of the doctrine to devises which presented that feature, namely, the existence of a competent trustee. (Owens v. The Missionary Society, 14 N. Y., 380; Downing v. Marshall, 366, 382.) But that qualification is not material here. The present, therefore, is a valid charitable gift, upon all the cases.

Before considering the effect of the act of 1806, it may be useful to determine the legal character of the last remainder limited by the will, assuming it to be valid, upon the question, whether it was vested in interest or contingent. The general if not the universal rule is, that where there is a person in being in whom the estate in remainder would vest in possession if the precedent estate should immediately terminate, it is vested in interest, though it may not be certain that such person will be living or qualified to take at the actual cessation of the prior estate. (Fearne on Bern., p. 215; Lawrence v. Bayard, 7 Paige, 70; 1 R. S., 724; Sec. 13.) Tested by that rule, the remainder expectant upon the expiration of the life estate would vest in the governor who was in office at the death of John Baker. But we know with certainty that this would be contrary to the intention of the testator, for the language of the will is, that he gives and devises the land “from and immediately after the determination of the said several estates for life by the death of the several devisees for life, unto the governor of the said State of Eew York for the time being P This is equivalent to saying that the governor, who shall be in office at the death of the last tenant for life, shall take the land as devisee in trust for the charity. There is no succession in the line of the governors of the State of property devised to them by private parties for extra-official purposes, such as exists between heir and ancestor, or in the officers of corporations, and, therefore, the remainder would not descend from governor to governor, as changes should happen in the incumbency of that office. The land is given to the governor who was intended to take, in fee simple, and hence the legal estate would descend to the heirs, or pass to the devisees, of the governor who should first die seized of the remainder. But it was certainly very remote from the intention of the testator that at the falling in of the life estate, the charitable devisees should be obliged to look up the representatives of the governor who was in office at some period during a former generation. My opinion, upon considerable examination and reflection, is, that the remainder vested in interest in fee simple, in the governor who was in office at the death of the testator, subject to be defeated by the fact of the incumbency of a different person at the time of the termination of the life estate. • This last limitation would be a valid executory devise, and would not be void for remoteness, for it must take effect at the termination of specified lives in being. It is of the essence of such conditional litiiitations that they are not capable of being defeated by any act of the person seized of the precedent estate in fee. Such a construction of the limitations of the will as I have suggested, would be consistent with the intention of the testator, that the governor in office at the death of the last tenant for Efe, would be the person to take the absolute estate in fee, for the purposes of the trust, and would not violate the rule just referred to, requiring a remainder to vest at the commencement of the estate for life, if there is then a person in existence competent to take, if the estates for Efe should immediately terminate. The point is material only to show that the approval of the act of 1806 by the governor then in office, Morgan Lewis, could not be made use of to defeat the estate of the governor who shall fiE the office at the expiration of the life estate. If that had happened during his official term the act of approving the law would probably have estopped him, but it can have no effect upon the executory limitation. I forbear to enlarge upon this view, or to refer to authorities in its support, because in my view the act can be supported upon the principles to be immediately stated.

The act of 1806, if liable to no constitutional objection, had the force of a law, and divested the estate of the trustee referred to in the wiE in favor of the school corporation, who thereupon became seized of the estate for the purpose of the charity. It has been decided in this court that the legislature has no constitutional power to cause land to be sold for the purpose of disentangling an estate, where the parties entitled to future estates are under no disability and are competent to act for themselves, though it is fully admitted that it may be done where the rights of infants, lunatics, &c., are concerned (Nowers v. Biegen, 3 Seld., 358), and by a series of cases in this court and the late court for the correction of errors, as weE as in the courts of original jurisdiction, it is firmly estabEshed that the legislature has full power to order sales of the estates of infants for the purpose of unfettering the title for the support of the infants, or for any reasons connected with their interests and welfare. (Clark v. Vam, Sorlay, 15 Wend., 436; S. C., in error, 20 id., 365; Towle v. Forney, 14 N. Y., 423; Williamson v. Moore, Court of Appeals, March Term, 1862.) A great number of statutes have been passed for these purposes during almost the whole existence of the State government, and which may be readily found without citation here. In the second and in the last of these cases the authority to pass such laws is deduced from the sovereign power, which is vested in the government, to superintend the interests, and provide for the welfare of infant children and lunatics, and which, under the system prevailing in England, is vested in the king, who is said in such cases to act as parens patriae, and which the Court of Chancery usually exercises by delegation from the sovereign. Now, by referring to the English books, it will appear that the same power which is vested in the crown, touching parties under the disability of infancy and lunacy, embraces the case of property given for the purposes of charity, and it is vested in the sovereign in the same paternal character. (Shelf, on Mortmain, pp. 267, 268, 399, 691, note d.) And there are several adjudications in the courts of this State to the same effect. In the case of The Elder, &c., of the First Baptist Church in, Hartford v. Witherall (3 Paige, 296) real estate had been granted by private individuals to the plaintiffs under the name by which they had associated as an unincorporated religious society. By the act for the incorporation of religious societies it was provided, in language very similar to the act of 1806 under consideration, that a church, when incorporated under that act, should be authorized to take into its possession all the property of the society, whether the same was given directly to such church or society, or to any other person for their use, and to hold such property as fully and amply as if the right or title thereto had been originally vested in the trustees of the corporation. The First Baptist Church in Hartford afterwards became incorporated under the act, and the cotirt held that the title to the property vested in the corporation by force of the act. A similar decision was made in The Dutch Church v. Mott (7 Paige, 81, 82), and in Inglis v. The Sailors' Snug Harbor a devise was held valid which provided for vesting the property in a corporation to be thereafter created. (3 Pet., 114.)

If I am right in these last positions, the act of 1806 was a valid exercise of legislative authority, and operated according to the intent to extinguish the title of the governor in office, and of all future governors, and to vest the remainder in the school corporation. That corporation having subsequently become the grantee of the surviving devisees for life in the whole of the Baker farm, except the ten acres leased to Hogg, it was seized of an absolute fee simple of the lots sold under this proceeding, and the purchasers will, upon the execution of the conveyances, acquire a perfect title to their lots.

I have purposely omitted until now, to consider one of the points insisted on by the counsel for the purchasers. It is argued that the devise was not for the benefit of the school mentioned in the will, but of the individual charity scholars, and hence, that it is not within the scope of the act of 1806, which speaks of property which may have been devised for the use or benefit of the Protestant Episcopal Charity School. The children were not to take any benefit except as belonging to the charity school; considered independently of the school, no poor children had any connection with the gift. The general intendment of such a disposition of property is, that the care and instruction mentioned is to be dispensed by the institution to whom the .scholars are confided, and where clothing and maintenance are to be furnished, they would naturally, if not necessarily, come through the same channel. According to the common understanding, a gift to the children belonging to an existing school, of such benefits as the school was accustomed to furnish, would be a gift to the school. The scholars are' a fluctuating class of persons who would be incapable of taking such benefits, except through some medium competent to supply them. This would be my judgment of the natural effect of the will if there was no authority for the doctrine. But the precise case has arisen in the English Court of Chancery. In The Attorney General v. Tancred (Amb., 351), it appeared that a testator had devised land to trustees to pay the profits to twelve students to be educated at Christ’s College, Caius College and Lincoln’s Inn. The devise being a charity was void by the mortmain act, 9th Geo. 2d, chap. 36, except as the universities and their colleges which were especially excepted in the fourth section of the act. The Lord Keeper said: “ The heir-at-law insists that the devises are void as to the eight studentships, because they are not given in termmis for the benefit of the colleges, and therefore not within the word or meaning of the exception in the statute. But I am of opinion that such dispositions are for the benefit and advantage of the colleges and within the meaning of the exception.” A more pointed decision of the question could scarcely be made.

In whatever light I have been able to view the questions, I am of opinion that the purchasers will have a good title. I am, therefore, in favor of reversing the order appealed from, and of requiring the respondents to complete their purchase and of charging them with the costs.

All the judges concurred in the result.

Order reversed, and the respondents required to complete their purchase and to pay costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Oliver Bascom and others, Respondents, v. Lewis E. Smith, Appellant.
    In justice’s court, to obtain an attachment against a non-resident, the affidavit upon that point is sufficient, as against third parties, if it states “that the deponent (plaintiff) applies for an attachment on the ground that the defendants are not residents of that county, but are residents of another county.” The affidavit in this case is sufficient to give the justice jurisdiction, as against third parties, and cannot be attacked collaterally by them.
    The approval of the bond by the justice is sufficient, as against third parties, even if he does not expressly certify it was executed in his presence.
    The return by the officer upon the attachment, stated in this case, is sufficient to give jurisdiction, as against third parties.
    Where a party takes several different objections to evidence, and the court excludes the same upon a single ground, and on appeal that ground is held erroneous, but some of the other objections are well taken, the court will not ' sustain the decision' upon the other grounds, unless they are such as could not be obviated on a second trial. The objection that the original papers could not be proved by the certificate of the justice, is an objection that might be obviated on a second trial; and, therefore, the decision below should not be sustained upon that objection, as the court did not place its ruling upon that ground.
    This was an action in the nature of trover for two horses, tried at the Washington Circuit, September, 1858, before Justice Allen and a jury.
    The plaintiffs claimed the two horses in question under a chattel mortgage executed by Joseph and Orange Collins, who then resided at Whitehall, in Washington county.
    The defendant justified under an attachment issued by a justice of the peace of Saratoga county, in favor of Nelson Shouts against the mortgagors.
    On the trial, after the plaintiffs had rested, the defendant offered in evidence a transcript from the docket of James Lee, a justice of the peace of Saratoga county, showing the proceedings in the said action in favor of Shouts.
    The defendant also offered in evidence the original application, affidavit, bond, attachment and constable’s return, in the suit before the said justice, also the original summons and return thereto, and complaint, and that the property in question was sold on execution on said judgment October 27, 1857, and bid off by the defendant, and that the said mortgage was fraudulent as against said attachment, judgment and execution. The plaintiffs’ counsel objected to said evidence on the grounds,
    1st. There is no proof of the non-residence of the defendant thereto, or of any facts or, circumstance authorizing the issuing of the. attachment. '
    2d. The affidavit does not show that the case falls within the exceptions in which, a warrant cannot issue.
    3d. The affidavit should state the facts, showing that the warrant could not issue.
    4th. The bond does not appear to have been executed in the presence of the justice, or acknowledged before him or other proper officer.
    5th. The return to the attachment is not sufficient, as it does not show that it was personally served, or left at the last place of residence of defendant. It does not appear whether it was personally served or not, or that the attachment or inventory served were certified by the constable, or that it was served immediately, or when it was served. That it was returned before the return day. It does not appear that it was served in the county of Saratoga, and the plaintiffs further object to said papers, except said judgment, that the certificate states that they are the original papers, and is incompetent to prove that these are the papers—the papers are not properly proved. The court ruled that the affidavit was insufficient to show that defendants therein were nonresidents of the county of Saratoga, and that the judgment was void, and thereupon excluded all of the evidence thus offered, to which the defendant’s counsel duly-excepted.
    The following is a copy of said affidavit, viz.:
    Sabatoga County, ss :
    “ Nelson Shonts, being duly sworn, deposeth and saitb that Joseph Collins and .Orange Collins are justly indebted to this deponent on a demand arising upon contract, in the sum of sixty dollars and eighty-eight cents, or more, over and above all discounts’which the said Joseph Collins and Orange Collins may have against him.

      “ And deponent further saith, that he applies for an attachment on the ground that the said Joseph Collins and Orange Collins are not residents of the county of Saratoga, but are residents of the county of Washington.
    “ And this deponent further says that according to the 31st section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against the said Joseph Collins and Orange Collins, and that this deponent will be in danger of losing his debt, unless an attachment is issued against the said Joseph Collins and Orange Collins.
    “N. SHONTS.
    “ Subscribed and sworn to before me this 10th day of October, 1857. JAMES LEE,
    “ Justice of the Peace.”
    The bond was in the usual form, and sealed and delivered in presence of W. B. Harris; and at the bottom of the bond was the following, indorsed by the justice, viz.:
    “ I approve of the surety in the above bond. Dated this 10th day of October, 1857. JAMES LEE,
    “ Justice of the Peace.”
    The return annexed to the attachment was as follows:
    “By virtue of the annexed attachment, I have seized and taken one large chestnut colored mare, and one grey mare, and the defendants not being found in the county of Saratoga, I served a copy of the said attachment on Thomas Connelley, in whose possession T found the property so attached, with an inventory of said property attached indorsed thereon. Fees, $1.
    “ Dated Oct. 10th, 1857.
    “A. M. CUMMINGS, Constable.”
    The jury rendered a verdict in favor of the plaintiffs for the value of the two horses.
    The defendant appealed to the General Term, and the judgment was affirmed in the fourth district in May, 1859. That court holding that the affidavit was defective, and also that the original papers could not be proved by the justice’s certificate.
    The defendant appealed to this court, where the case was argued in September,-1863, on the part of the appellant, and submitted on printed points on behalf of the respondent.

      E. F. Bullard, for the appellant.
    I. The affidavit is sufficient to show that the defendants were residents of the county of Washington.
    The language is, “ And the deponent further saith, that he applies for an attachment on the ground that the sand Joseph Collins, dse., are not residents of the county of Saratoga, hut are residents of the county of Washington.”
    That means the saíne as if it read, “that he applies, &c., for the reason that they are not residents, &c.”
    Or “ that he applies, &c., hecomse they are not residents, &c.”
    Or “ that he applies, &c., from the fact that they are not residents, &c.”
    The language in each case means the same thing in common parlance as used in the democratic courts.
    This attachment is granted under (3 B. S., 5th ed., 462, § 215, 33), which provides that a short attachment shall issue when the defendant shall reside out of the county.
    And if such defendant shall he proceeded against otherwise, the justice shall have no jurisdiction of the cause.
    Before any attachment shall.issue, &e., the plaintiff shall, by his own affidavit, &c., prove to the satisfaction of the justice the facts and circumstances to entitle him to the same, that he had such a claim, &c.” (Paige, p. 463, § 217.)
    It will be observed that the last section is directory, and a failure to comply does not declare the act void. Whereas section 215 makes the act void, if any process but a short attachment shall issue.
    According to the construction of the statute in regard to insolvent discharges, the failure to make a proper affidavit does not render the attachment void. (The People v. Stryker, 24 Barb., 649.)
    At page 651, Emott, J., says: “By section five the debtor is required to state in his schedule the true cause and consideration of every debt, still there is no provision that a failure to comply with either of these requirements shall of itself render the discharge void.”
    The statute in question only requires the party to prove to the satisfaction of the justice the facts, &c.

      Proof upon that point has been given, and if the justice has erred in weighing it, there is a proper way to review it by appeal.
    The defendant does not appeal and thereby waives all error.
    The case of Harmon v. Brotherson is in point. (1 Denio, 531.)
    In that case Brotherson was held to bail on an affidavit stating the facts merely upon information and belief. The court held the affidavits insufficient, and that the order would be set aside for that reason if directly attacked by motion, but that the order could not be attacked collaterally.
    “When we determine that a sufficient case was not made for the exercise of the judgment of the officer, we must consider the judge and all the parties trespassers in whatever they do.” Denio, J. (Van Alstyne v. Erwin, 1 Kern., 341.)
    The case of Staples v. Fairchild (3 Com., 44), relied on by the court below, is not in point.
    In that case there was no affidavit or proof in regard to the residence of the creditor, and it was not stated in the application. The affidavit merely recited, “Giles Sanford, of the city of Albany, being duly sworn,” &c. Ho fact was-sworn to in regard to his residence and nothing stated about it in the body of the affidavit.
    Page 46, Jewett says: “If there be a total defect of evidence as to any essential fact, the process will be declared void, &c. But when the proof has a legal tendency to make out a proper case, in all its parts, although the proof may" be slight a/nd inconclusive, the process will be valid until set aside by a direct proceeding for that purpose.”
    It will be seen that the case at bar is different, because here the affiant has already sworn and stated certain facts positively. He then proceeds, “ and deponent further saith,” that is, he states the facts under oath to show that he is entitled to the process. He is not making his application, which was a separate paper, but is trying to state facts in regard to the residence of the defendants, and construed in that light, he says “ that the said Collinses are not residents of the county of Saratoga, but are residents of the county of Washington.” An affidavit, like all other papers or contracts, must be construed to carry out the intent of the party making it. (3 Kern., 98; Willard Eq., 491). The part here quoted was in writing and the rest printed, and in such cases the written part is to be regarded as the strongest to show the intent. If the party should be indicted for perjury, it would be construed most strongly against him, and would clearly bring him within the intent to swear that the defendants were residents of Washington county.
    Any different construction" of this affidavit would make it more difficult to practice in justices’ courts than in courts of record. The statute commands this court to construe liberally, and disregards defects, &c.; whereas, to overthrow this affidavit, and hold all parties trespassers, requires a criticism astute enough to split the finest hair, with a mind as keen as the justice who gave the opinion in the court below.
    Why should laymen and inferior magistrates be held to know more than our highest judges? All may err, but it does not follow that their acts should be void.'
    In Clark v. Luce (15 Wend., 419) a very intelligent court held that no affidavit was necessary in such cases. In 4 Denio, 592, the same court held the other way. A majority of the Court of Appeals finally concurred with the latter decision, yet the first court should not be held liable as trespassers for deciding wrong. They must have been, if they had granted an attachment upon their own opinion, if the doctrine now contended for is to prevail.
    We. insist the case in 3 Comstock, above cited, should not be extended. It has not been extended to a case of this kind.
    The General Term in the third district, two years after, held that an affidavit just like the one in question was sufficient. (Van Kirk v. Wilde, 11 Barb., 520.)
    The court in the ease at bar erred in supposing that the affidavit was not questioned. At page 523 of case it says: “ The counsel for the plaintiff objected to the attachment, on the ground that the affidavit and papers on which they were issued were insufficient.”

      Pages 504-5. Court say “ the affidavits, &c., are exceedingly informal; but I think they contain enough to meet the requirements of the statute.” “ They state that the plaintiff-has a debt, &c., and that the defendants are non-residents of the cowntyV

    This opinion given by Habéis, J., and concurred in by "Weight, J., now of this court.
    This decision was made and reported over five years before the attachment in question was issued, and blanks were printed in Albany, of the same form, and were scattered and used all about the State; yet that case has never been questioned since by a reported decision, and has now stood as the conceded law of this State for more than twelve years. '
    This court has since been construing the acts of inferior magistrates with greater liberality, and tending more to establish truth than to turn justice out of court upon a technicality.
    Speaking of allowing interest, Bbonson says: “The rule is just in itself; and as it is now nearly nineteen years since the point was decided in favor of the creditor, and eight out of nine judges of the Supreme Court have at different times concurred in that opinion, we think the question should be regarded as settled.” (Van Rensselaer v. Jewett, 2 Comst., 140,141.)
    That language is applicable to the case of Van Kvrh v. Wilde, and to the case at bar.
    The principle is just in itself. The party seeking to collect an honest debt against a fraudulent debtor, attaches his property.
    The debtor does not complain of the proceedings, by appealing, blit allows the judgment to stand.
    How a fraudulent mortgagee, with a floating mortgage, comes in and asks to cover his fraud and screen himself behind, 1st, a technical rule of law that will not allow the creditor to impeach his mortgage until he obtains a judgment; 2d, a technical and narrow and illegal construction of the creditor’s affidavit, which shall make the judgment void and protect the fraudulent holder of this mortgage.

      We submit that neither law, justice, equity or common honesty requires this court to strain the rules of grammar to uphold a fraud.
    To show that this court have been leaning in favor of a liberal construction, and have not extended the case in 3 Cowen, I refer to the language of Judge Denio, in 1 Kernan, 340, 341.
    “ The criticisms which the counsel asks us to indulge in, would, if generally applied to such proceedings, render them extremely hazardous, not only to the parties, but to the officers, &c.”
    “A liberal indulgence must be extended to these proceedings, even upon questions of jurisdiction, if we would not render them a snare rather than a beneficial remedy.”
    This view is reiterated in Skinnion v. Kelly (18 N. Y.,) and carried further in Reno v. Pinder (20 N. Y., 298.)
    The true rule should be, to hold that an affidavit, &o., gives jurisdiction, no matter how informal. Ko other rule could do full justice to both sides. The defendant always has a full remedy by appeal.
    This court have substantially adopted this rule (18 RT. Y., 355.)
    II. The affidavit does show that no warrant can issqe.
    The point at folio 15, not true in fact, and therefore not noticed by the court below.
    The statute does not require the'bond to be proved or acknowledged. It only requires it “to Toe ayoyorovedR (2 R. S., 230, 1st ed., § 29.) It was approved.
    III. The return was sufficient. (11 Barb., 530.) (15 id., 546, 548.) (20 Wend., 145.)
    In regard to the service of a summons, the statute is more special than the section in question. (2 R. S., 160, § 16.)
    Yet under that statute, “ personally served,” with the date, is held sufficient. (2 Cow., 418.) (1 Cow. Treat., 3d ed., 553.) (20 RT. Y., 299.)
    The last three points not considered important by the court below.

      IY. The General Term erred in fact, where it is supposed the defendant relied upon the justice’s certificate.
    The defendant offered in evidence the original affidavit and proceedings.
    True, the plaintiff objected to the certificate to prove the papers, but the witnesses were sworn who could prove that such were the original papers.
    The court, however, for the purpose of the trial, passed directly upon the affidavit, and held it insufficient, to which an exception was taken.
    To afterwards offer to identify and prove the affidavit, when the court had already passed upon it, would be absurd. The court assumed it to be proved for the purpose of passing upon its effect.
    We concede the rule that where two good objections are made, and the court exclude evidence on a single ground, the party may fall back upon the other ground, provided that point could not be obviated.
    Here the other ground could have been obviated in a moment, if the court had not already assumed the paper in evidence, and passed upon its effect.
    The judgment should be reversed, and a new trial granted.

      J. Potter, for the respondent.
    I. The evidence of the attachment proceedings was properly excluded.
    1st. There was no proof of the identity or execution of the papers. The only proof of their identity or execution is where the justice certifies that they are the original papers.
    • 2d. The affidavit required was fatally defective. The facts necessary for the issuing the attachment must proved to the satisfaction of the justice. (2 R. S., 230; 3 R. S., 5th ed., 430, § 28.) It does not state any facts or circumstances tending to show that the defendants were non-residents of the county of Saratoga.
    The affiant merely swears that he applies for an attachment on that ground. (8 Wend., 611; 7 Barb., 353; 3 Comst., 41; 4 Denio, 592; 20 Wend., 145.)

      Again, it was defective for want of proof that a warrant could not issue.
    The affidavit shows that the cause of action arose upon contract, and this is all. But there are some causes of action arising upon contracts which subject the defendant to arrest upon warrant. There is then no proof of the facts and circumstances showing that the defendants could not be arrested.
    The affidavit should have shown what the character of the debt was, from which the justice could have seen and determined that the debt did not belong to one of the three classes specified in 2 R. 8., 5th ed., p. 962, § 212; or should have stated that the debt was not for money collected by defendant as a public officer, or for official misconduct,, nor damage or neglect in any professional employment. (5 Paige, 265.)
    It was necessary for the plaintiff in that suit to give some evidence tending to show that the defendants were non-resi- ' dents of Saratoga, and that no warrant could issue against them. Without such evidence the justice had no jurisdiction. (10 Wend., 421; 13 id., 404; 4 Denio, 93; 14 Wend., 237; 13 Barb., 634.)
    II. The return of the officer was defective in these particulars :
    1. It does not specifically return whether the attachment, &c., was personally served or not. This was a fatal error. (2 R. S., 461, § 213; 3 Denio, 317; 2 Comst., 110.)
    2. It does not appear -that the constable served a certified copy of attachment on Connery. Service of any other than a certified is no service. (2 R. S., 461, § 213, and 432, &c., 29.)
    3. It was returned before the return day. It must .be returned “ at the day named for that purpose ” in the attachment. (2 R. S., § 33.)
    The reason for this is that the attachment may be served on the defendant personally if he can be found at any time before the return day.
    This is a summary proceeding against a man’s property without notice to him, and the statute has therefore provided specially for every stage of the proceeding.

      Sound policy requires that they should be strictly observed, and every error in the mode of procedure must operate to divest the justice of jurisdiction, and render all subsequent acts void. (3 Denio, 317; 2 Comst., 110.)
   Per Curiam.

As against third parties, the affidavit in this case is sufficient to sustain the jurisdiction of the justice. The non-residence of the defendants, though informally, is sufficiently alleged. The justice was sufficiently satisfied of the facts to issue his warrant, and third parties cannot attack it collaterally.

The objection that the. bond was not legally approved by the justice, is not well taken. It certainly was taken by him as sufficient for the.0purpose for which it was given, and, as against third parties, it is sufficient, though he does not certify expressly that it was executed in his presence. The return is also sufficient as against these parties.

The statute requires a summons to be personally served, by reading, &c., and that the return shall state the manner of service. Yet it has been settled that a return merely stating "personally served,” is sufficient. (2 Cow., 418; 20 N. Y., 229.)

The return in question is a substantial compliance with the statute. (20 Wend., 145; 11 Barb., 530; 15 id., 546.) Any other construction would render such proceedings extremely hazardous, and more complicated than the practice in the higher courts. (1 Kern., 340, 341; 20 N. Y., 298.)

The original defendant has acquiesced in the judgment, by not appealing therefrom. On appeal, a more strict construction might be required, as against him; but third parties cannot question the proceedings collaterally, unless there is a clear want of jurisdiction.

The objection that the original papers coidd not be proved by the certificate of the justice, is one which might be obviated on a second trial; and for that reason, the decision below should not be sustained upon such ground alone.

Judgment of the General Term reversed, and new trial ordered.


author: Ingraham, J.

text:
    Elmore P. Ross v. Hiram C. Curtiss.
    Where, by the statute under which a proceeding is had by a town to raise money for a specific purpose by the issuing of its bonds, the supervisor of the town is directed to pay on such bonds, in payment of the interest thereon, the money received by him from the county treasurer for that purpose, he cannot question the legality of the bonds, and has no discretion in that respect.
    In such case, he acts as the agent of the town; and, as such agent, he cannot question the authority of his principal.
    This action was brought to recover from the defendant the interest on five certain bonds purporting to be issued by the town of Sterling, in Cayuga county, bearing date the 1st of July, 1853. These bonds were issued under date of 1st July, 1853, and purported to be issued under the act of 1851 (Session Laws, p. 544), That statute authorized the supervisors of the town of Sterling, Robert Hume and William Wyman, to borrow on the credit of the town such sum of money as they might deem necessary, not to exceed $25,000, for a term of years not exceeding twenty-five, with such rate of interest as might be agreed on, not exceeding seven per cent, and to execute under their official signatures a bond or bonds on which the interest should be made payable on the 1st of March in each year, and for three years thereafter. It, also provided that the said persons should have no power to do any of the acts authorized by the statute until the railroad company therein mentioned should be formed .under the general railroad act, and the written assent of two-thirds of the resident persons taxed in said town, as appearing on the last assessment roll, should have been obtained and filed in the clerk’s office of Cayuga county. This act was amended (Session Laws 1853, p. 1137), by which the supervisors and railroad commissioners were authorized to issue the bonds with interest payable on the first days of January and July in each year, instead of the first day of March as before provided. The coupon's on the bonds were made payable at the Bank of the State of Hew York, and the bonds had annexed to them a certificate of the county clerk that a paper, purporting to be a written assent of two-thirds of the resident tax-payers of the town of Sterling, had been filed in the office of the clerk of the county of Cayuga.
    The bonds when issued were delivered directly to the Lake Ontario, Auburn and Hew York Railroad Company instead of raising the money thereon by the supervisors.
    When the interest became due, the coupons were presented and payment demanded and refused at the Bank of the State of Hew York, on the. 11th July, 1857.
    It was admitted that the defendant was supervisor of the town of Sterling on the 25th February, 1857. The board of supervisors .of the county of Cayuga by tax raised the amount of money necessary to pay the interest on the bonds, and on the 25th February, 1857, the treasurer paid to the defendant, as supervisor, $1,750, for which the defendant gave receipts to apply the same to pay the interest on the bonds issued by the said town. On the 6th August, 1857, coupons were presented to the defendant and payment demanded and refused.
    The complaint sets up the acts of 1&51 and 1853, and alleges that the bonds were issued under those acts; that the bonds were issued as required by said acts and under the authority thereby required; that they were delivered to the Lake Ontario, Auburn and Hew York railroad in payment of a subscription made by the town for $25,000 of the capital stock of said railroad company; that the town received the stock; that the plaintiff is the iona fide owner of the bonds; that the interest had been demanded and refused; that the board of supervisors caused to be levied and collected from the town of Sterling a sum of money sufficient to pay all the interest on the bonds; that the defendant, as supervisor, received from the county treasurer $1,750 for the sole purpose of paying the interest on said bonds; that the plaintiff demanded payment from the defendant-in August, 1859, which he reftised.
    The answer admits the raising of the money and payment to the defendant, but denies that it was for the sole purpose of paying the interest, and avers that the bonds were issued contrary to the provisions of the statute; that they were illegally delivered to the railroad company; that the town never subscribed for the railroad company stock, and denies that the plaintiff is a bona-fide holder of the bond. The case was tried before a judge of this court without a jury, who rendered judgment for the plaintiff. This judgment was affirmed at the General Term. The defendant appeals to this court.

      D. H. Marsh, for the appellant,

      D. Wright, for the respondent.
   Ingraham, J.

Many of the questions which were raised on the trial of this cause were subsequently disposed of by this court in Starin, v. The Town of Genoa and Gould v. The Town of Sterling (23 N. Y., 439). The constitutionality of the act under which the bonds were issued, and the authority to date the bonds in 1853, and to issue them by the successors of the officers authorized to issue them under the first act, were therein adjudged.

It was also held in that case that the fact that the written assent of a majority of the tax-payers had been given was necessary and must be shown by the plaintiff to entitle him to recover against the town; and that the bonds, when issued by the town, should be sold for cash, and the money paid to the railroad company, and not delivered to the railroad company in exchange for stock, and to be sold by the company.

In the present case, however, the action is not against the town where the questions as to the validity of the bonds and the constitutionality of the act under which they were issued might with propriety be contested, but against the supervisor of the town to whom the money was paid" by the county treasurer under the statute for the purpose, as stated in his receipt, of paying the interest on the bonds issued by the town. By the statute of 1851 (p. 544, § 4), the supervisor is specially directed to pay the money received by him from the county treasurer, on the bonds, in payment of the interést which shall have accrued. Where the statute is thus specific, it is idle for the defendant to say that he has a right to exercise any discretion whether he will pay the money or not; or to inquire whether the hoard of supervisors of the county had legally raised the money; or whether the bonds were legally issued. That was no part of his duty. The statute directed him absolutely to pay the money to the holders of the bonds issued by the town, for the interest which should then have accrued. He had nothing else to do but to pay the same in the manner directed. If so, his only duty was to ascertain who were the real owners of the bonds issued, and to pay to them, the money so placed in his hands for that purpose. That was the extent of his authority; and when he undertook to review the legality of the acts of the board of supervisors in raising the money, or of the officers authorized to issue the bonds, he exceeded his powers, and assumed to do acts for which he had no authority. An agent has never a right to review the legality of acts done by his principal, but when he receives money to apply as directed by the principal, he has no other duty but to comply with such orders.

I do not, however, deem it necessary to discuss this question any further, as it has been passed upon already in the case of Murdock v. Aikin amd others, decided in 1863. The able opinion of Davies, J., in that case renders any further examination unnecessary by this court.

The defendant seeks, however, to relieve himself of the effect of that decision by the suggestion that in this case he denies that the plaintiff was a bona fide holder of the bonds. There was no such objection to the plaintiff’s title to the bonds upon the trial, except so far as it arose upon the original issue of the bonds, prior to the raising of the money and the payment of it to the defendant; and that is one of the questions which, in Murdock v. Aikin (swpra), this court held the defendant had no right to dispute.

It is also said that the case of The People v. Mead (24 N. Y., 114) differs from that of Mwrdock v. Aikvn. That case was an application for mandamus to compel the officers who had money raised by tax to pay the same to the object for which it was provided, and the decision of the court 'was that a mandamus was a proper remedy. The questions which were decided in the case of Murdock and in this case did not properly arise. There the case was decided in the same manner as if the action had been against the town, and the same ruling adopted as in the case of Gould v. The Town of Sterling.

I am of the opinion that the defendant has no right to litigate these questions. He received the money under the statute for the sole purpose of paying this interest, and he has no power to avoid the discharge of that duty by alleging illegality in the acts of the body from which he receives the money and authority to pay it.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.