author: Finch, J. Rippey, J.

text:
    Harold J. Burke et al., Respondents, v. Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants; James V. Mangano, Individually and as Sheriff of the County of Kings, Respondent, and Eugene J. McGuire, Individually and as Sheriff of the County of Bronx, et al., Interveners, Defendants-Respondents.

      Argued December 10, 1941;
    decided December 10, 1941.

      f William C. Chanler, Corporation Counsel (William S. Gaud, Jr., Seymour B. Quel and Stanley Buchsbaum of counsel), for appellants.
    The amendment adopted by the electorate constitutes a local law within the meaning of section 8 of article 9 of the State Constitution. (Matter of Phillips [Hubbard], 284 N. Y. 152; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of Finegan v. Cohen, 275 N. Y. 432; Johnson v. Etkin, 279 N. Y. 1; Harris v. White, 81 N. Y. 532; City of Buffalo v. Couteulx, 15 N. Y. 451; Ontario

      Bank v. Runnell, 10 Wend. 186; Matter of Cifelli, 235 App. Div. 731; 259 N. Y. 524; Matter of Bentley v. Simmons, 251 App. Div. 773.) The amendment deals with the single subject of the reorganization of county offices within the city of New York, and, therefore, does not violate section 36 of the Charter. (Conner v. City of New York, 5 N. Y. 285; Village of Gloversville v. Howell, 70 N. Y. 287; Harris v. People, 59 N. Y. 599; People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; Scott v. Village of Saratoga Springs, 131 App. Div. 347; Matter of Burke v. Krug, 161 Misc. Rep. 688; 272 N. Y. 575; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of Clinton Avenue, 57 App. Div. 166; People ex rel. Davies v. Tax Commissioners, 47 N. Y. 501; City of Seattle v. Sylvester-Cowen Investing Co., 55 Wash. 659.) Since the right to hold office is not a vested right, and may be abrogated by abolition of the office either during or prior to the commencement of the term thereof, and since the offices of Sheriff of Kings, Queens and Bronx counties have lawfully been abolished pursuant to the Constitution, the defendants-respondents have no right to serve as Sheriff of such counties after January 1, 1942. (Matter of Gertum v. Board of Supervisors, 109 N. Y. 170; People ex rel. Devery v. Coler, 173 N. Y. 103; Smith v. City of New York, 37 N. Y. 518; Taylor & Marshall v. Beckham, 178 U. S. 548; People ex rel. Mitchell v. Sturges, 156 N. Y. 580; Koch v. Mayor, 152 N. Y. 72; People ex rel. Gere v. Whitlock, 92 N. Y. 191; Long v. Mayor, 81 N. Y. 425; Matter of Quinn, 152 N. Y. 89; State ex rel. Cony v. Cooney, 70 Mont. 355; O’Connor v. Greene, 174 Misc. Rep. 597; Luckett v. Madison County, 137 Miss. 1; Browne v. City of New York, 241 N. Y. 96; Brush v. City of Mount Vernon, 260 App. Div. 1048.) The petition pursuant to which the amendment was presented to the voters, the manner in which the proposition appeared on the ballot and the detailed provisions oi the amendment itself met all pertinent statutory requirements. (Matter of McKinney v. McGoldrick, 266 N. Y. 665; Peterson v. Martino, 210 N. Y. 412; Grimmer v. Tenement House Dept., 204 N. Y. 370;
      City of New York v. Trustees of Sailors’ Snug Harbor, 85 App. Div. 355; 180 N. Y. 527; Matter of Mooney v. Cohen, 272 N. Y. 33, 597; Johnson v. City of New York, 274 N. Y. 411; Curtin v. Barton, 139 N. Y. 505.) There was substantial compliance with the requirements of section 45 of the Charter. (People v. Cook, 8 N. Y. 67; People ex rel. Hirsh v. Wood, 148 N. Y. 142; Sheils v. Flynn, 164 Misc. Rep. 302; 252 App. Div. 238; 275 N. Y. 446; People ex rel. Goring v. President of Wappingers Falls, 144 N. Y. 616; Salducco v. Etkin, 155 Misc. Rep. 361; 244 App. Div. 681; 268 N. Y. 606; Demarre v. Johnson, 150 Ind. 419; State ex rel. Mullen v. Doherty, 16 Wash. 382; Seymour v. Tacoma, 6 Wash. 427; Colbert Co. v. Thurmond, 116 Ala. 209; Phillips v. Rockhill, 188 S. C. 140.)

      Reginald S. Hardy and Abram Raff for plaintiffs, respondents.
    The amendment abolishing the office of Sheriff does not conform to the constitutional provisions authorizing the abolition of that office. The amendment is not a local law. (State Const, art. 9, § 8; Adler v. Deegan, 251 N. Y. 467; People v. Tremaine, 281 N. Y. 1; Matter of Sherrill v. O’Brien, 188 N. Y. 185; People ex rel. Gilbert v. Wemple, 125 N. Y. 485; People v. O’Brien, 111 N. Y. 1; Hanley v. City of New York, 250 App. Div. 552; Allison v. Welde, 172 N. Y. 421; People ex rel. Balcom v. Mosher, 163 N. Y. 32.) The amendment abohshing the office of Sheriff of the county of Kings constitutes an illegal delegation of legislative power. (Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Poultry Corp. v. United States, 295 U. S. 495; Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; Moses v. Guaranteed Mortgage Co., 239 App. Div. 703; People v. Ryan, 267 N. Y. 133; Matter of Mooney v. Cohen, 272 N. Y. 33; Matter of McCabe v. Voorhis, 243 N. Y. 401; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 170 Misc. Rep. 42; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Small v. Moss, 279 N. Y. 288; Rosalsky v. State, 254 N. Y. 117; Matter of Richardson, 247 N. Y. 401; Driscoll v. Edison L. & P. Co., 307 U. S. 104.) The amendment is fatally defective in that it is vague, indefinite and unworkable. (Matter of Becker v. Eisner, 277 N. Y. 143; Bareham v. City of Rochester, 246 N. Y. 140.) The amendment provides by indirection that existing laws shall be deemed a part thereof. (State Const, art. 3, § 16; Matter of Becker v. Eisner, 277 N. Y. 143; People ex rel. Everson v. Lorillard, 135 N. Y. 285; People ex rel. Board of Commissioners of Washington Park v. Banks, 67 N. Y. 568; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593; Darweger v. Staats, 267 N. Y. 290.) The amendment embraces more than one subject and is, therefore, void. (State Const, art. 3, § 15; Cons. Laws, ch. 76, § 13; New York City Charter, § 36; People v. O’Brien, 38 N. Y. 193; Hanley v. City of New York, 250 App. Div. 552; Albert v. City of New York, 250 App. Div. 555; Economic Power & Constr. Co. v. City of Buffalo, 195 N. Y. 286; Gaynor v. Village of Port Chester, 231 N. Y. 451; Huber v. People, 49 N. Y. 132.) The amendment was not properly submitted to the voters. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Matter of Wing v. Ryan, 255 App. Div. 163; Train v. Sisti, 146 Misc. Rep. 362; People ex rel. Hirsch v. Wood, 148 N. Y. 142.) The direct initiative is unconstitutional. (State Const, art. 3, § 1; Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Poultry Corp. v. United States, 295 U. S. 495; Matter of Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; Moses v. Guaranteed Mortgage Co., 239 App. Div. 703; People v. Ryan, 267 N. Y. 133; Stanton v. Board of Supervisors, 191 N. Y. 428; People ex rel. Unger v. Kennedy, 207 N. Y. 533; Matter of McCabe v. Voorhis, 243 N. Y. 401; Matter of Mooney v. Cohen, 272 N. Y. 33.) The abolition of the offices of Sheriff of the counties within the city of New York cannot become operative until the expiration of the terms of the Sheriffs elected on November 4, 1941. (People ex rel. Eldred v. Palmer, 154 N. Y. 133; Nova v. Flynn, 139 Misc. Rep. 783; 256 N. Y. 690; People ex rel. Davis v. Gardner, 45 N. Y. 812.)
   Finch, J.

The objections, which are here presented for decision, to the validity of the amendment to the New York City Charter (effective January 1, 1938), will be considered seriatim against the background of the necessary facts.

On July 3, 1941, there was filed in the office of the Clerk of the City pf New York an initiating petition of proposed amendments to the City Charter to be submitted to the voters of the city. The purpose of this petition was to abolish the office of Sheriff and Register in each of the five counties within the city and transfer their duties and functions, except in small part, to new officers to be called the City Sheriff and City Register, who are to be appointed by the Mayor after competitive civil service examination. This initiating petition was signed by approximately 92,000 qualified electors.

In the general election held in the city on November 4, 1941, a proposition known, as Proposition No. 1 appeared in the following form on the voting machine: “ Shall the proposed amendment to the New York City Charter to reorganize county government by abolishing the county offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register, to be filled by appointment after competitive civil service examination, and assigning the functions of the offices thereby abolished to the City Sheriff, the City Register and the City Department of Correction, be approved? ” This proposition was adopted by a plurality of slightly less than 300,000 votes. At the same election persons having been duly nominated were elected to the offices which the above proposition was designed to abolish.

The plaintiffs are taxpayers of the city. They seek- to invalidate the above amendment to the New York City Charter, as unconstitutional and otherwise invalid, and bring this action to enjoin the Municipal Civil Service Commission from conducting an examination for the offices of City Sheriff and Register; the Mayor from appointing any persons to those offices; and to declare the officers elected as above the duly elected officers for the ensuing four years. At Special Term it was held that the amendment was a local law within the meaning of the Constitution (Art. IX, § 8), but the amendment was declared void because in contravention of the State Constitution (Art. Ill, § 15), and of the City Home Rule Law (Cons. Laws, ch. 76, § 13, subd. 3), and of a similar provision in the City Charter (§ 36). The Appellate Division affirmed with one justice dissenting.

We pass at once to the merits of the objections urged.

The first objection urged against the validity of the amendment is failure to conform to the provisions of the State Constitution, in that the proposition was not properly enacted as a local law. The legislative power of the State is vested in the Senate and Assembly (State Const, art. HI, § 1). It may not delegate that authority to any other legislative body or to the electors except where the Constitution authorizes such delegation. Even then it may delegate legislative power only in manner and form permitted by the Constitution.

Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception.” (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413.) Therefore, only within the framework provided by this County Reform Amendment (State Const, art. IX, § 8) may the delegated power be exercised. Within that framework, the objection is urged that action may be taken only by means of a local law enacted by the City Council which is the local legislative body. This objection fails to differentiate between a local law and the procedural method adopted for its enactment. This court, in considering what constituted a local law under this Home Rule Amendment, said “ No limitation is here found upon the method by which these local laws shall be adopted * * *.” (Matter of Mooney v. Cohen, 272 N. Y. 33, 39.) The Constitution of the State does not provide in the Home Rule Amendment,, or the County Reform Amendment how a local law shall be enacted. It placed upon the Legislature the duty of determining how local laws may be enacted. The Legislature has taken cognizance of this distinction by expressly providing in section 2 of the City Home Rule Law, which implemented the County Reform Amendment, that the term “ local law ” shall include enactment by petition and ratification by popular vote as provided in a city charter. The test of the validity of a local law is whether, within the field of legislation delegated to the city, it has been enacted in accordance with the provisions of the statute. The New York City Charter (§ 44) provides that an amendment to the charter may be adopted either by action of the local legislative body, or by vote of the electors of the city upon the petition of electors of the city, for the purpose of abolishing any elective office, including a transfer of powers to the newly created office or other disposition of such powers. Thus both the Legislature and the Court of Appeals have upheld the validity of this'jprocedure for enacting local laws. (City Home Rule Law, §§ 2, 19-a; N. Y. City Charter, § 44; Mooney v. Cohen, 272 N. Y. 33; Johnson v. Etkin, 279 N. Y. 1.) No difference can be discerned between a local law enacted within the Home Rule Amendment (State Const, art. IX, § 12), and under the County Reform Amendment (State Const, art. IX, § 8). The County Reform Amendment, by providing that in counties of the city of New York the city is vested with power by local law to abolish the office of any county officer, with certain exceptions not here material, and to assign the function of such officers to city officers, is directly applicable in the case at bar. The Sheriff from earliest times has been a county officer (Maitland, Constitutional History of England, p. 41; Matter of Grifenhagen v. Ordway, 218 N. Y. 451); and this is so even though these offices, being county offices, are thereby also state offices. (Finn v. City of New York, 282 N. Y. 153.)

It is next urged that this amendment is void as embracing more than one subject, and as such violates not only the Constitution (State Const, art.. III. § 15), but also the City Home Rule Law (§ 13, subd. 3), and the New York City Charter (§ 36), all of which provide in substance that no local bill or law shall embrace more than one subject which shall also be expressed in the title. The purpose of this provision was to prevent concealment and surprise to the members of the Legislature and to the public at large, and to prevent legislative logrolling.” (Economic Power & Constr. Co. v. City of Buffalo, 195 N. Y. 286.) This is perhaps best illustrated by the occasion for the creation of this constitutional provision, which was added as a result of the success of Aaron Burr in persuading the Legislature to grant him a charter for a water company which had hidden among its provisions a clause enabling him to found a bank. (Matter of City of New York [Clinton Avenue], 57 App. Div. 166.)

In applying the constitutional provision, the courts have formulated various tests, chief among which has been a limitation of the subject-matter to one subject, which, however, may embrace the carrying out of that subject-matter in various objective ways, provided the objectives are naturally connected with the subject-matter and the title could be said to apprise the reader of what may reasonably be expected to be found in the statute. (Conner v. City of New. York, 5 N. Y. 285; Village of Gloversville v. Howell, 70 N. Y. 287.)

In Conner v. City of New York (5 N. Y. 285) the same objection as here urged was made to an act entitled An act in relation to the fees and compensation of certain officers in the city and county of New York.” The act affected the fees and functions of the Surrogate, County Clerk, the Register, and certain other officers named therein. This court held that there was no violation of the one-subject rule. The subject-matter was the change in compensation of these officers from a fee to a salary basis, which was expressed in the title. The objectives were the offices affected in the carrying out of this subject-matter. Separate bills were not required to carry out this subject-matter in reference to each of the offices named. Judged by the foregoing test and the authorities, the subject-matter in the case at bar was county reorganization, which was carried out in detail by the abolition of the county offices involved. This principle has often been applied in unquestioned legislation. An entire city charter or a form of county government may be the subject of a single enactment. An even closer analogy to the case at bar is that in 1912 the Legislature, by a single statute, created the new offices of Sheriff and Register of Bronx county and transferred to those newly-created offices the powers which the Sheriff and Register of New York county had formerly exercised in the territory constituting the new county of Bronx.

Objection is urged to the amendment in that no provision was made for the elector who desired to abolish one office and not the other. The only plan submitted was to effect economy in the manner indicated. If the voter did not approve he disapproved of the plan as a whole.

It is next urged that the amendment in question violates article III, section 16, of the State Constitution, which prohibits the insertion by reference of an existing law rather than including therein the text in full. This objection arises from the fact that the functions, powers and duties of the old officers are assigned to the new. These provisions are similar to provisions invariably employed under like circumstances, which have been held valid by this court. In Curtin v. Barton (139 N. Y. 505) the purpose of the act was to establish a Municipal Court in the city of Syracuse in place of courts held by justices of the peace within the city, and to make applicable to the new court the jurisdictional provisions previously applicable to the Justices’ Courts. In rejecting the contention that this statute violated the same section of the State Constitution, the Court of Appeals held that all it was necessary to say was that the current of authority in the court has settled the question against the contention, citing People ex rel. Board of Commissioners v. Banks (67 N. Y. 568), People ex rel. New York Electric Lines Co. v. Squire (107 N. Y. 593), and People ex rel. Everson v. Lorillard (135 N. Y. 285). Respondents rely upon Matter of Becker v. Eisner (277 N. Y. 143), but there the situation was different. The statute in the Becker case did not abolish any existing agency and transfer its powers to a newly-created agency. On the contrary, the statute attempted to make automatically applicable to a different agency, namely, the Board of Higher Education, all the laws then appliable and which might be enacted in the future with reference to another continuing agency, namely, the Board of Education. In the case at bar, on the other hand, as in Curtin v. Barton (139 N. Y. 505), People ex rel. Board of Commissioners v. Banks (67 N. Y. 568) and other like cases cited, the principle is made applicable that reference to procedure and jurisdiction definitely established is not violative of the constitutional provision.

It is next urged that even though the amendment is not unconstitutional, it was not properly submitted because lacking in a sufficient number of signatures. This objection is based upon the claim that section 19-a of the City Home Rule Law overruled section 44, subdivision b; of the City Charter, and prescribed the only method by which a local law could be initiated by petition and ratified by the electorate. Section 44, subdivision b, of the Charter requires 50,000 signatures and, as already noted, tins petition contained upwards of 92,000. The City Home Rule Law (§ 19-a) provides that signatures must equal ten per cent of the total number of votes cast for Governor in the preceding election. This would require some 213,000. Section 19-a was enacted after the approval, of the Charter containing section 44, subdivision b, and, therefore, to the knowledge of the Legislature this section without further action was to become a law. Section 19-a is a general provision applying to the State as a whole. It, therefore, is subject to the legal principle that a provision applying generally to the State as a whole does not repeal by implication a special provision applying to a particular portion of the State. No expressed repeal of section 44, subdivision b, is contained in section 19-a. Moreover, section 33 of this same City Home Rule Law expressly provides that it was not intended to repeal by implication any existing provision of law. Since the City Home Rule Law thus negatives any express or implied repeal of section 44, subdivision b, the objection is without merit. In addition, section 36 of the City Home Rule Law provides that all existing charters and local laws, so far as not inconsistent with this chapter, shall continue in force. Moreover, section 19-a, by its very terms, does not set up an exclusive method of enactment, since its opening sentence provides “A local law amending a city charter also may be adopted in the following manner.” The word also ” expresses a non-exclusive application. For all these reasons section 44, subdivision b, of the New York City Charter, which has the force and effect of a direct legislative act, is not in conflict with section 19-a of the Ciiy Home Rule Law.

It is next urged that the amendment was not properly submitted to the voters. Section 45 of the New York City Charter provides that a proposition to amend the charter shall contain the title of the local law or a brief statement of the subject of the amendment, and that the City Clerk, with the advice of the Corporation Counsel, shall prepare an abstract concisely stating the title or subject and the purpose and effect thereof and forthwith transmit such proposition and such abstract to the election officers charged with the duty of publishing the notices and furnishing the supplies for such election.. It is further provided that A sufficient number of copies of such abstract shall be printed, delivered with the other election supplies and distributed to the electors at the time of the registration of voters and at the election.”

In the case at bar it is contended that section 45 was not complied with in two respects, (1) that a sufficient number of copies of the abstract were not printed, and (2) that additional abstracts were not delivered to the local boards of election on Election Day. The facts in this regard are stipulated by counsel as follows: Prior to the beginning of registration week, the Board of Elections in the City of New York caused to be printed 1,638,400 copies of the abstract of Proposition No. 1. The contract for printing also provided that further copies were to be furnished to the Board of Elections if required. No further copies were ever requested or obtained. On the opening day of registration week, there "were delivered to each local Board of Elections at the voting place hi each election district throughout the city, 400 copies of the abstract, together with instructions that if lacking in any of the above supplies, they were to notify immediately the commanding officer of the police precinct in order that he might send an officer to the borough office of the Board of Elections to obtain the additional supplies needed. Four hundred copies of this abstract were readily available to the electors throughout registration week at each of the polling places. In no case did any local board request additional copies of the abstract during registration week. A total of 12,800 copies of this abstract were delivered to the main office of the Board of Elections and its five borough offices, and kept on hand from the beginning of registration week until after Election Day. As stated in the stipulation, “ Throughout said period, any persons requesting copies of said abstract from said offices received same.”

No additional copies were printed subsequent to the beginning of registration week, and no additional copies were delivered to the local Board of Elections on Election Day. On Election Day two sample facsimiles of the face of the voting machine were delivered with the other election supplies to each Board of Elections at the voting place. Each of these samples set forth Proposition No. 1 as it appeared on the voting machine.

Since in the city of New York personal registration is required of all electors, no elector who sought information lacked an abstract, since no requests went unheeded. For this reason the abstracts could only assist in more intelligent voting on Election Day and not as notice of the time and place of election. Since, however, no requests for these abstracts went unfulfilled, and facsimiles were present in all polling places, and the title of the proposition appeared on all voting machines, without which voting could not be had, it would appear that no further information was desired. The statute provides merely that a sufficient number of copies of the abstract shall be printed. In view of the fact that only a proportion of the voters desired to exercise then privilege of voting for or against this amendment, namely, some 500,000 out of over 2,000,000 votes, it would appear that the Board of Elections, in printing 1,638,400 copies, or some three times the number of those voting on the proposition, was not negligent in the endeavor to supply a sufficient number of copies. Certain it is that this provision of the statute is directory only and in accordance with the stipulated facts there was substantial compliance with the statute. An election is void where the electors do not receive notice of the time and place of the election, and the Legislature, not the courts, must determine how each notice shall be given. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Lane v. Johnson, 283 N. Y. 244.) The will of the electors can be expressed only where the electors have received notice of the election, and notice given in manner not authorized by the Legislature is without legal effect. The will of the electors expressed at an election, of which legal notice has been given, may not be defeated by the failure of officials to carry out directions intended to make the machinery of election more effective. The provisions of statutes intended for that purpose are directory rather than mandatory. In such case substantial performance of a statute is sufficient, and in some cases even failure to perform may be disregarded. (Salducco v. Etkin, 155 Misc. Rep. 361; 244 App. Div. 681; 268 N. Y. 606; People ex rel. Goring v. President, Vil. of Wappingers Falls, 144 N. Y. 616.)

It is. further urged that the amendment may not become operative until the expiration of the terms of the respective officers elected on the 4th of November, 1941. Plaintiffs claim that the officers so elected have the right to serve for four years commencing January 1, 1942. That contention ignores the fact that the amendment abolishing these offices takes effect on January 1, 1942. Article IX, section 8, of the Constitution authorized the city of New York to abolish these offices. Moreover, this constitutional provision expressly designates those incumbents who may serve out their terms despite the action of the city under the provisions of this amendment, namely, the elective county officers who were in office at the time that article took effect. Article IX, section 8, took effect January 1, 1939. (State Const, art. XX, § 1.) Accordingly, the provisions quoted above, as applied, meant that the county officers who were in office on January 1, 1939, were permitted to fill out their then terms. Otherwise, this section vested the city with unconditioned power to abolish these county offices. Since by the amendment the city has chosen to make the abolition of these offices immediately effective on January 1, 1942, it follows that the offices will be abolished upon the taking effect of this amendment. The language used is capable of no other construction. The Legislature has power to determine its own policy with reference to a public office or a public officer. Exercising that right it may shorten or lengthen the term of the office or abolish it altogether, subject only to the restrictions, if any, contained in the State Constitution. (Koch v. Mayor, 152 N. Y. 72; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170.) In accordance with the express language of the County Reform Amendment and the decisions of this court, these officials have no vested right in the respective public offices. They were elected so that, in the event the offices were not abolished, there would be incumbents for the offices.

Other objections are urged. We have examined them with care but they do not show sufficient merit to require detailed reasons for their rejection.

It follows that the judgments appealed from should be reversed and the complaint dismissed, without costs.

Rippey, J.

(dissenting). For reasons which seem to me fundamentally sound and which I shall briefly outline, I am constrained to dissent from the decision about to be handed down in this case.

The purpose of the amendment to the New York City-Charter, as expressed in the petition for submission of the amendment to the electors of the city of New York, was “ to reorganize County Government by abolishing the County offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register and assigning the functions of the offices hereby abolished to the City Sheriff, the City Department of Correction and the City Register.” The amendment was proposed pursuant to section Eight of Article IX of the Constitution of the State of New York and sections forty-four and forty-five of the New York City Charter.” Those sections of the City Charter relate only to the manner of submission of the proposed amendment. Assumed power to so amend the Charter is asserted to be derived exclusively from the provisions of article IX, section 8, of the Constitution.

The amendment (§ 1031) provides that there shall be a city sheriff who shall be appointed by the mayor after competitive examination conducted by the municipal civil service commission in accordance with the civil service law.” Section 1032 provides that the offices of sheriff of the counties within the city are abolished and that the functions, powers and duties of the said offices are assigned to the city sheriff, except as otherwise provided by sections six hundred twenty-three and nine hundred fifty-five-a of this charter.” Section 623 has to do with the functions of the Commissioner of Correction and 955-a (a new section) with the freezing in the new office of all civil service employees of the abolished offices. Section 1051 provides for a City Register to be appointed in a manner similar to the City Sheriff, and section 1052 for abolishing the offices of Register; Register of Deeds and Registrar in the several counties and the assigning of the functions of those offices to the City Register except as otherwise provided in section 955-a. The abstract of submission appearing on the voting machines and furnishing the only information to the electors concerning the proposal to be voted on read: “ Shall the. proposed amendment to the New York City Charter to reorganize county government by abolishing the county offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register, to be filled by appointment after competitive civil service examination, and assigning the functions of the offices thereby abolished to the City Sheriff, the City Register and the City Department of Correction, be approved ? ”

Article IX, section 8, of the' Constitution provides, so far as material, that In counties in the city of New York the city of New York is hereby vested with power from time to time by local law, to -abolish the office of any county officer other than judges, clerks of counties and district attorneys, and to assign any or all functions of such officers to city officers, courts or clerks of counties, and to prescribe the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of the persons holding such offices and the employees therein, and to assign to city officers any powers or duties of clerks of counties not assigned by this constitution.” That, is the only authority claimed for the power to submit the amendment.

That provision in the Constitution had no purpose to provide for the reorganization of county government. Except in the particulars mentioned in article IX, section 8, legislative power to provide for and regulate the organization and government of counties, including that of the five counties wholly included in the city of New York, rests exclusively in the State Legislature (Art. IX, §§ 2, 4). Nothing that could be done by the city under the provisions of article IX, section 8, could effectuate a reorganization of county government or permit a county to continue to function. Its purpose was primarily to enable the city of New York by appropriate legislation to abolish certain county offices as such and to transfer their duties and functions to city officers, courts or clerks of counties, which, as a part of the then existing city and county governments, would absorb and thereafter perform the constitutional and statutory functions of those certain offices in one or more of the five counties embraced within the geographical boundaries of the city of New York. It was a special provision of the Constitution designed to apply only to a special case — an exception to the otherwise universal rule obtaining wherever representative form of government exists in this country and particularly enunciated in our own State Constitution that the legislative power of the state is vested exclusively in the State Legislature (Art. Ill, § 1) and the provision must, therefore, be strictly construed.

Having that cardinal rule of construction in mind, a brief ■ additional, but not all inclusive, analysis will further indicate that the city far exceeded any power conferred by article IX, section 8, in its abortive attempt to reorganize the organization and government of the five counties of the city of New York. It confers power “ to abolish the office of any county officer.” Assuming, but not conceding, that the necessary legislative action may be taken by direct vote, the constitutional provision confers no power on the city at the same time to abolish functionally different groups of offices in five different counties. It confers no power to permit the voters in any one county unit to abolish county offices in another county unit. For example, the county of Richmond has no office of Register. No authority is conferred on the voters of Richmond county to abolish the offices of Register in the four other counties, even though they are the electors of the city unit for city purposes. It confers no power upon the city to group various county offices of the various counties within the city in such a way that it becomes impossible for electors of one county, which still exists and continues as a separate and distinct unit of government, to decide for themselves whether they desire to abolish a certain office within their own county. It is no answer to say that, if the voters in Kings wish to abolish the office of Register in that county but wish to retain its office of Sheriff, they can rid the county of the office of Register by doing what they do not wish to do by ridding the county of the office of Sheriff. How could any scheme be devised more surely to frustrate the will of the voters or to make more certain that they cannot freely register their will than that devised by the submission here involved? Under the proposal, the voters were required to vote to abolish the offices of Sheriffs and Registers and other offices of five different counties or vote to abolish none of them or to refrain from voting at all on the proposition, which latter, significantly, was the position taken by a large majority (1,517,505 out of a total vote for Mayor of 2,238,947) of the qualified electors of the counties involved aggregating 2,450,868. We may not speculate that all who approved the amendment (507,350) approved of all of its provisions. Rather, it is probable that voters interested only in separate objects may have combined, by necessity, in behalf of all of the different objects. Nor can it be said that those who voted against the proposition (220,092) did so because they wished to defeat all of its objects. That kind of “ log rolling ” was condemned by this court in Economic Power & Constr. Co. v. City of Buffalo (195 N. Y. 286, 296). It is no answer to say that the proposal is solely a scheme for county reorganization as falsely appears in the petition and abstract of submission and thus embraces only one subject since no power is conferred on the city to reorganize counties. Nothing whatever is said in the proposition submitted about one of the cardinal purposes of the amendment which was to transfer all of the civil service employees in the many offices abolished to the two newly created offices and to freeze them into the city service without civil service examination for positions in the new offices. No power is conferred to create new offices, either for the same or different units of government. Otherwise its so-called purpose to effect economy might be entirely frustrated. By its express terms power is given only to transfer functions of the abolished offices to existing city officers, courts or clerks of counties.”

The amendment here embraces more than one subject and is void (State Const, art. III, § 15; City Home Rule Law, § 13, subd. 3; N. Y. City Charter, § 36). This was the ground upon which the learned justice at Special Term granted judgment for plaintiffs and with his reasoning and excellent opinion I am heartily in accord. An adequate prop cannot be found in Conner v. City of New York (5 N. Y. 285) and Village of Gloversville v. Howell (70 N. Y. 287) to sustain the submission. Neither case is, either directly or by analogy, authority for the point upon which it is cited. In the Conner cáse the purpose of the act was to change the compensation of various officers in a particular governmental unit by legislative act and it dealt with the single subject of compensation of public officers. In the other the pertinent question related to the validity of an act reorganizing and providing a charter for the village of Gloversville which failed to mention specifically a provision for the selling within the village of intoxicating liquors and another provision for punishment for selling without a license (See Harris v. People, 59 N. Y. 599, 601).

Notice required by section 45 of the Charter and section 18 of the City Home Rule Law of the submission of the amendment was not given. Those provisions of law required the preparation of an abstract of the amendment concisely stating the title, subject, purpose and effect thereof and its transmission to the election officers charged with the duty of publishing the notice of and furnishing the supplies for the election. It was mandatorily required that a sufficient number thereof be printed and delivered with other election supplies and “ distributed to the electors at the time of the registration of voters and at the election.” It may be assumed that a reasonably sufficient number of the abstracts were printed although the total number printed was not much more than one-half the number of electors entitled to vote. All printing and distribution to election boards occurred prior to the first registration day which was more than four weeks prior to the election. The abstract of this amendment was included and buried in the midst of a list of propositions amending both the State Constitution and the Charter. There is no showing that any of such abstracts were distributed to registrants. No copies of the abstract were delivered to the election officials on election day. None of such abstracts were available at the polling places for distribution to or the information of voters on election day. As a substitute for the legal requirement, it is stipulated, two sample facsimiles of the face of the voting machine * * * were delivered with the other election supplies to each local Board of Elections at the polling'place. Each said sample set forth Proposition No. 1 as the same appeared on the voting machines used at said election.” What use was made of it at the several polling places does not appear. Though it had been given wide publicity at the voting booths on election day, it was a statement only of the question submitted and gave no information as to the contents of the amendment and could not, on that account alone, satisfy the legal requirement for notice. By the express terms of the amendment, whether true in fact or not, its subject was the reorganization of county government. The purpose of the statutory requirement for availability and distribution of the abstracts on registration and election days was to enable the voters to learn what the proposition upon which they might vote was about. The requirement did not relate alone to having the abstracts available. It was mandatory that they be distributed on those days. Voters were not required to search for them. The notice was insufficient and the amendment, though adopted, must on that account be held void (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490, 496). This court unanimously said in that case: The mere fact that no harm was done, if such be a fact, and that no voters were disfranchised by virtue of the irregular notice and the failure to post any notice whatsoever is not material. When the statutes prescribed methods by which propositions changing the form and structure of government shall be submitted, it cannot be left to the discretion of the court to say that substantially no notice whatever is required or that the specific provisions of the statutes may be overridden. There must be some uniformity in matters of this kind. The question is one of legal notice and not one of actual notice.” The controlling effect of that decision cannot be waved aside by any assertion that the application of the rule there laid down was limited to failure only to give notice of the time and place where the election was to be held.

Furthermore, only an amendment to the Charter may be the subject of the process of initiative and referendum (Charter, § 44). But this is concededly not an amendment within the meaning of article IX, section 8. By the terms of the Constitution such a change in governmental structure can be made only by a “ local law.” Concededly, the making of such change was a legislative act. The framers of the Constitution did not define what was meant by the expression local law ” as used in article IX, section 8, nor lay down any method by which such a law might be enacted. However, the Constitution provides that the legislative power of the State is vested in the Senate and Assembly (Art. Ill, § 1). What is meant by a “ local law ” depends upon its definition at the time the Constitution was adopted, not upon some definition later formulated by the Legislature (1 Cooley on Constitutional Limitations [8th ed.], p. 124). We take the words used and give them “ not only their ordinary meaning but that which previous acts, measures and reports intended them to have ” (People v. Tremaine, 281 N. Y. 1, 12). We may safely look to the City Charter which provides, not alone that all legislative power shall be vested in the Council, but that it has “ the sole power to adopt local laws under the provisions of the city home rule law or otherwise” (§ 21). That provision has been authoritatively construed to exclude amendments to the Charter- adopted other than as local laws by the Council (Report of New York City Charter Revision Commission, 1936; Tanzer’s New York City Charter, pp. 480, 488). Any other method of adopting a legislative act is the exception to the universally basic rule of legislating only by representative action. “ Direct legislation in cities must always rest on some constitutional or statutory grant of power ” (Matter of McCabe v. Voorhis, 243 N. Y. 401, 413). Nowhere in the Constitution or statutes is found any authority to legislate concerning the matter here involved for the city of New York by local law ” or otherwise by direct action or by any process except by action of the Council.

Many other interesting and important questions are raised and discussed in the exhaustive briefs submitted by counsel but, in view of what has been said above, they need not be considered.

The judgments appealed from should be affirmed, with costs.

Lehman, Ch. J., Loughran, Lewis and Desmond, JJ., concur with Finch, J., Rippey, J., dissents in opinion in which Conway, J., concurs.

Judgments reversed, etc.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    Felix A. Muldoon et al., as Trustees, Appellants, v. Mid-Bronx Holding Corporation, Respondent.

      Argued November 17, 1941;
    decided January 8, 1942.

      Frank W. Chambers and Walter E. Warner, Jr., for appellants.
    There being but a partial taking, plaintiffs’ mortgage is discharged only as to the portion taken and the full principal amount thereof remains a hen upon the residue not condemned, and not until payment of the award moneys by the Comptroller should plaintiffs’ bond and mortgage be reduced. (Matter of City of New York [Chrystie St.], 239 App. Div. 314; Matter of City of New York [Boscobel Ave.], 242 App. Div. 392; Hill v. Wine, 35 App. Div. 520.)

      Samuel L. Scholer for William P. Thomas et ah, as trustees, amici curise.

      John Kadel and Emanuel E. Weisberg for respondent.
    The plaintiffs’ bond and mortgage was reduced by the amount of the award as of the date of vesting of title in the city of the portion of the mortgaged premises taken in the condemnation proceedings, and thereafter the defendant was required to pay interest on the balance remaining unpaid under the mortgage after such reduction, at the rate fixed by the mortgage. (Matter of City of New York [East 29th St.], 247 App. Div. 648; 273 N. Y. 62; Irving Trust Co. v. Hughes, 239 App. Div. 74; Matter of Braico, 235 App. Div. 132; 260 N. Y. 625; German Savings Bank v. Dunn, 75 Misc. Rep. 251; 150 App. Div. 928; Matter of City of New York [Chrystie St.], 239 App. Div. 314.) The defendant should be credited by plaintiffs with any difference between the amounts paid to the plaintiffs and the amounts that were correctly payable. (Gillig v. Grant, 23 App. Div. 596; Matter of Margolis & Meadow, 252 App. Div. 513.)
   Lehman, Ch. J.

In condemnation proceedings, title to a portion of the premises, covered by a mortgage which was held by the plaintiffs as trustees, vested in the city of New York on May 1, 1939. The plaintiffs filed objections in the condemnation proceedings to the tentative decree, and requested that the court direct that payment of the award, together with interest thereon, be made directly to them. The final decree entered on March 7, 1940, awarded the sum of $81,089.91 as compensation for the portion of the mortgaged premises taken by the city, together with interest at the rate of four per cent from May 1, 1939, the date when title to the premises vested in the city. Pursuant to the application which had been made in the condemnation proceedings by the plaintiffs, the final decree directed that payment of the award, with interest at four per cent, be made directly to the plaintiffs.

At the time that title to a portion of the mortgaged premises vested in the city, the principal sum of $97,644.28, secured by the mortgage, was unpaid. The city took title to the premises free from the mortgage lien, but the equitable lien of the mortgage then attached to the damages awarded for the land. “ When land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.” ( Utter v. Richmond, 112 N. Y. 610, 613.) The lien of the mortgage remained valid and obligatory as to the residue ” of the mortgaged lands. (Administrative Code of the City of New York, § B15-37.0; L. 1937, ch. 929.)

Interest at the rate of five and one-quarter per cent was payable upon the principal sum secured by the mortgage in accordance with the terms of the bond and mortgage. For default by the mortgagor in the payment of such interest the mortgage might be foreclosed. Though, as we have said, title to the property vested in the city on May 1, 1939, the amount of damages payable as compensation was fixed by the final order only on March 7,1940, and the plaintiffs could not collect the damages till several months thereafter. From time to time during that period the plaintiffs sent to the defendant statements of interest due upon the entire principal debt at the rate of five and one-quarter per cent and. the defendant paid the interest demanded. When the damages awarded for the land taken, with four per cent interest, were paid to the plaintiffs, at their request the mortgage debt was correspondingly reduced.

The primary question presented upon this appeal is whether the owner of a mortgage who in condemnation proceedings asks and receives payment of the award made as compensation for the taking of part of the mortgaged premises is entitled to interest upon the amount of the award from the date of taking at the rate which the city is bound to pay or at the rate which the mortgagor agreed to pay. If the owner of the mortgage is entitled to interest only at the rate which the city is bound to pay, then upon this record a second question is presented: May the mortgagor after payment of interest at the rate of five and one-quarter per cent as agreed in the bond ask that excess payments be applied in reduction of principal? To obtain an adjudication of these questions, the plaintiffs have brought this action for a declaratory judgment and the defendant has interposed a counterclaim. Upon motion of the defendant summary judgment has been granted in its favor.

The statute does not in express terms provide that when a part of a parcel of land subject to the hen of a mortgage is taken in condemnation proceedings, the mortgage debt is reduced by the amount of the compensation which the sovereign must pay for the land taken and that such compensation shall belong to and shall be paid to holders of mortgage hens in order of priority. The right of the holders of a mortgage to payment of the award is not conferred by statute but is a right which such holders may assert upon equitable principles. The plaintiffs have chosen to assert that right in the condemnation proceeding. Since the hen of the mortgage upon the land taken was destroyed when title vested in the land, they have been awarded a right to resort to the compensation which must be paid to the owner of the land. The obhgation of the sovereign to pay that compensation has at their request been transferred to them because the obhgation created by the bond is no longer secured by a hen upon the property taken. To that extent the obhgation of the sovereign has been substituted for the contractual obhgation in the bond. Not the statute but the voluntary act of the owner of the mortgage has effected the substitution. The question might be different if the plaintiffs had chosen to enforce the obhgation of the bond in accordance with its terms and had resorted to the award only to the extent necessary to pay a deficiency that might arise upon foreclosure of the mortgage. (See Irving Trust Co. v. Hughes, 239 App. Div. 74, at p. 77.) We do not consider or decide that question.

The payment of interest at the rate of five and one-quarter per cent upon the entire amount of the mortgage debt until the time when the amount of the award was fixed by final decree does not bar the defendant from demanding an adjustment of the interest thereafter. Without such payment, claim might have been made that the defendant was in default in payment of interest, and that the plaintiffs upon such default could foreclose the mortgage which was still valid as to the residue of the mortgaged lands. Certainly the parties must have understood that some adjustment of interest would be made thereafter for the defendant did not attempt to deduct even the four per cent interest on the estimated amount of the award which under the statute would be payable upon the award.

The judgment should be affirmed, with costs. Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


author: Per Curiam.

text:
    United States Trust Company of New York, Appellant, v. Estate of Bradish Johnson, Respondent.
    Argued November 24, 1941;
    decided January 8, 1942.

      M’Cready Sykes, George L. Shearer and Harold F. Pritchard for appellant.

      James F. Curtis and Richard H. McCann for respondent.
    The referee’s report, approved by Special Term and the Appellate Division, is correct. (Matter of Board of Water Supply of the City of New York, 277 N. Y. 452; People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309.)
   Per Curiam.

Upon this record we are constrained to affirm the order of the Appellate Division since the report of the referee is consistent with the theory of the trial.

The order should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


author: Finch, J.

text:
    Richfield Oil Corporation of New York, Appellant, v. City of Syracuse, Respondent. Laura McCarthy et al., Appellants, v. City of Syracuse, Respondent.

      Argued November 17, 1941;
    decided January 15, 1942.

      John Carroll Young for Richfield Oil Corporation, appellant.
    The provisions of the tax and assessment act (L. 1906, ch. 75) and the law applicable to special assessments in the city of Syracuse are unconstitutional and the assessment is void by reason thereof. (Stuart v. Palmer, 74 N. Y. 183; Gedney v. Marlton Realty Co., 258 N. Y. 355; Matter of Floyd-Jones v. Town Board of Oyster Bay, 249 N. Y. 398; Browning v. Hooper, 269 U. S. 396; Gilman v. Tucker, 128 N. Y. 190; People ex rel. Schick v. Marvin, 246 App. Div. 74; Matter of Paul, 94 N. Y. 497; Harris v. People, 59 N. Y. 600; Matter of Mayor, 99 N. Y. 570; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; People ex rel. Mut. Trust Co. v. Miller, 177 N. Y. 51; Smith v. Browning, 225 N. Y. 358; Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199.) A declaratory judgment is the proper remedy in this action. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163; 272 N. Y. 668; Pratter v. Lascoff, 140 Misc. Rep. 211; 236 App. Div. 713; 261 N. Y. 509; Dowsey v. Village of Kensington, 257 N. Y. 221; Wingate v. Flynn, 139 Misc. Eep. 779; 233 App. Div. 785; 256 N. Y. 690; Bradford v. County of Suffolk, 257 App. Div. 777; Bareham v. City of Rochester, 221 App. Div. 36; Sartorius v. Cohen, 222 App. Div. 514; New York Rapid Transit Corp. v. City of New York, 275 N. Y. 258.)

      George D. Ruby and John Timothy Smith for Laura McCarthy et al., appellants.
    An action for a declaratory judgment is a proper remedy where the constitutionality, applicability and meaning of tax statutes and ordinances are at issue. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Sartorius v. Cohen, 222 App. Div. 514; 249 N. Y. 31; Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163; 272 N. Y. 668; Pratter v. Lascoff, 140 Misc. Rep. 211; 236 App. Div. 713; 261 N. Y. 509; Dowsey v. Village of Kensington, 257 N. Y. 221; Wingate v. Flynn, 139 Misc. Rep. 779; 233 App. Div. 785; 256 N. Y. 690; Bradford v. County of Suffolk, 257 App. Div. 777; 283 N. Y. 503; Bareham v. City of Rochester, 221 App. Div. 36; 246 N. Y. 140; Board of Education v. Van Zandt, 119 Misc. Rep. 124; 204 App. Div. 856; Sloane Estates, Inc., v. City of New York, 175 Misc. Rep. 674.) There is no statutory procedure for or prohibition' of the judicial review of a special assessment levied by the city of Syracuse. (City of Johnstown v. Wells, 242 App. Div. 103; 275 N. Y. 623; City of Rochester v. Bloss, 185 N. Y. 42; City of Rochester
      v. Fourteenth Ward Assn., 183 N. Y. 23; Village of Little Falls v. Cobb, 80 Hun, 20; N. Y. C. & H. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165; Loomis v. City of Little Falls, 176 N. Y. 31.) Chapter 300 of the Laws of 1914 violates section 15 of article 3 of the State Constitution. (Matter of Lands in Town of Flatbush, 60 N. Y. 398; Ferguson v. Ross, 126 N. Y. 459; Matter of City of Rochester v. Bloss, 77 App. Div. 28.) Chapter 300 of the Laws of 1914 violates section 16 of article 3 of the State Constitution. (Matter of Becker v. Eisner, 277 N. Y. 143.) The city of Syracuse is estopped from levying and collecting the assessment by reason of its delay of eleven years and because plaintiffs changed their positions during the period of delay by the city in making and confirming the assessment. (Curnen v. Mayor, 79 N. Y. 511; Title Guaranty & Trust Co. v. Allen, 142 Misc. Rep. 764; O’Leary v. Board of Education, 93 N. Y. 1; Matter of Deering, 14 Daly, 89; 105 N. Y. 667; People ex rel. Schick v. Marvin, 249 App. Div. 293; 275 N. Y. 587; People ex rel. Holtzmann v. City of Schenectady, 136 App. Div. 127.)

      James C. Tormey, Corporation Counsel (John F. Bmiel of counsel), for respondent.
    Chapter 75 of the Laws of 1906 and chapter 300 of the Laws of 1914 are valid and constitutional; the city had jurisdiction to levy the assessment. (Leonhardt v. City of Yonkers, 195 App. Div. 234; Loomis v. City of Little Falls, 176 N. Y. 31; N. Y. C. & B. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165; Oak Bill Country Club v. Town of Pittsford, 264 N. Y. 133; Moore v. City of Yonkers, 235 Fed. Rep. 485; People ex rel. Schick v. Marvin, 271 N. Y. 219; Matter of Mayer, 50 N. Y. 504; People ex rel. Commissioners v. Banks, 67 N. Y. 568.) The failure of the plaintiffs to pursue the remedy conferred by the charter bars their right to maintain this action. (Matter of Allen Square Co. v. Krieger, 217 App. Div. 123; Bartlett v. Lily Dale Assembly, 249 N. Y. Supp. 482; Dun & Brackstreet, Inc. v. City of New York, 276 N. Y. 198; N. Y. C. & R. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165; Oak

      Hill Country Club v. Town of Pittsford, 264 N. Y. 133; Lewis v. City of Lockport, 276 N. Y. 336; Loomis v. City of Little Falls, 176 N. Y. 31; Singer Sewing Mach. Co. v. Benedict, 229 U. S. 481; Woodruff v. Fisher, 17 Barb. 224; State Railroad Tax Cases, 92 U. S. 575; O’Donoghue v. Boies, 159 N. Y. 87.)
   Finch, J.

These are two actions against the city of Syracuse, brought by owners of real property for a judgment to declare void certain special assessments arising out of local improvements, for an injunction restraining the further collection of the tax, and directing the refund of that part of the tax already paid under protest.

One plaintiff owns all the property fronting on one side and the other plaintiff owns all the property fronting on the other side of North Franklin street between West and Willow streets. North Franklin street between the cross streets referred to was widened in 1928. By resolution of the Common Council adopted in 1929, seventy-five per cent of the cost of the land acquired for the street widening was to be paid by the city at large and the remaining twenty-five per cent was to be assessed against the property deemed benefited by the improvement. In 1930 the Board of Assessors published notice of a hearing upon the proposed assessment and, subsequent to the date of the hearing, assessed the parcels on the east and the west sides of North Franklin street approximately $11,000 each. Pursuant to notice an opportunity for hearing before. the Common Council was had in 1933. In 1939 the Common Council adopted an ordinance confirming the assessment. That is the assessment of which plaintiffs complain.

After interposing its answers in both actions, the city moved for judgment on the pleadings dismissing the complaints on the ground that the statutes governing such assessments in the city of Syracuse provide an adequate and exclusive method for judicial review of assessments and, therefore, these actions for declaratory judgments could not be maintained. Special Term denied the motions, but the Appellate Division reversed and directed the dismissal of the complaints.

An action for a declaratory judgment may be maintained, despite the provisions of a taxing statute which provide that the method of judicial review prescribed therein shall be exclusive, where the jurisdiction of the taxing authorities is challenged on the ground that the statute is unconstitutional or that the statute by its own terms does not apply in a given case. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198.) But where it is sought to set aside the assessment on other grounds, then the assessment may be reviewed only in the manner provided in the statute. (Lewis v. City of Lockport, 276 N. Y. 336; Oak Hill Country Club v. Town of Pittsford, 264 N. Y. 133, 139; N. Y. C. & H. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165.)

Plaintiffs do not challenge the adequacy of the judicial review prescribed by the statutes which the city contends govern the assessment in question. (L. 1914, ch. 300, § 5; L. 1906, ch. 75, §§ 28, 31-35.) On the other band, plaintiffs challenge the applicability and constitutionality of these statutes for the following reasons: (1) Chapter 300 of the Laws of 1914, which authorizes the local improvement in question,, prescribes no exclusive procedure of judicial review; (2) in so far as chapter 300 of the Laws of 1914 purports to make applicable the provisions of chapter 75 of the Laws of 1906, prescribing the exclusive method of judicial review, the statute violates section 16 of article III of the State Constitution forbidding legislation by incorporation by reference; and (3) chapter 300 of the Laws of 1914 embraces more than one subject and its contents are not expressed in its title, both in violation of section 15 of article III of the State Constitution. These objections will be considered seriatim.

It may be conceded that chapter 300 of the Laws of 1914 does not set forth at length a procedure for the judicial review of assessments. Such a procedure, however, is prescribed by chapter 75 of the Laws of 1906, wherein it is provided that “No action or proceeding to set aside, vacate, cancel, annul, review, reduce or otherwise question, test or affect the legality or validity of any assessment for a local improvement shall be maintained * * * except in an action or proceeding brought for that purpose as herein provided.” (L. 1906, ch. 75, § 34.) Thus chapter 75 of the Laws of 1906 establishes the procedure for the assessment and collection of general city and local improvement taxes and the language quoted leaves no doubt that the method of review prescribed therein is applicable to any assessment for a local improvement.” But whatever the effect of chapter 75, Laws of 1906, standing alone might have been, we find that chapter 300 of the Laws of 1914 governs the acquisition of lands for public improvement and section 5 thereof provides that the procedure established by chapter 75 of the Laws of 1906, relative to the right of property owners to be heard in opposition to assessments, shall be observed in regard to assessments under the later statute. In People ex rel. Schick v. Marvin (271 N. Y. 219, 222) this court said: The Legislature has regulated the manner in which an assessment for local improvements * * * may be challenged and reviewed (Laws of 1906, ch. 75). That statute is applicable to assessment for the widening of a street (Laws of 1914, ch. 300).”

From the foregoing, it seems clear that section 5 of chapter 300 of the Laws of 1914 limits the property owner to the course of review, allowed by the earlier, general statute. It follows, therefore, that unless chapter 300 of the Laws of 1914 is unconstitutional, the various objections to the assessments urged by plaintiffs may not be considered in the action at bar. We are thus brought, to a consideration of the constitutional objections, the first of which is that section 16 of article III of the State. Constitution forbids the enactment of legislation through the device of incorporation by reference. This constitutional provision is not recent. It has been long established that reference in a subsequent act to the procedure of an earlier, general statute does not contravene this provision of the Constitution. The legal principle has been settled that a general course of procedure theretofore in force may be applied by reference to the new particular situation created by the subsequent legislation. (People ex rel. Board of Commissioners v. Banks, 67 N. Y. 568; Curtin v. Barton, 139 N. Y. 505; Burke v. Kern, 287 N. Y. 203.)

The next constitutional objection urged is that section 15 of article III provides that No private or local bill * * * shall embrace more than one subject, and that shall be expressed in the title.” Chapter 300 of the Laws of 1914 is entitled “ An act in relation to the department of public works of the city of Syracuse, and repealing certain sections of chapter six hundred and eighty-four of the. laws of nineteen hundred and five.” Chapter 684 of the Laws of 1905, popularly referred to as the Syracuse Public Works Act, authorized the construction of various public improvements, such as sewers, pavement of streets, etc., and provided for the manner in which the city should defray the expense of such improvements. The objection urged to chapter 300 of the Laws of 1914 is that the statute embodies the subject of condemnation and also the subject of special assessments levied to pay for property purchased. The error in the argument of plaintiffs lies in the assumption that the question of paying for public improvements is a subject separate from the question of the construction of public improvements. Both as a matter of history and practical affairs, the problem of paying for public improvements is directly linked with that of the authority of a municipality to construct such improvements. It follows, therefore, that the statute in question deals not with two subjects within the meaning of the Constitution, but with a single one, to wit, public improvements by a municipality.

Having considered the objection of multifariousness in the content of the statute, we pass to a consideration of the title. The title of chapter 300 of the Laws of 1914 is clearly indicative of the content of the statute, for the Department of Public Works of a municipality is obviously a proper agency to be charged with the duty of public improvements and, therefore, all matters naturally relating to that question may be said to be expressed by the title.

“ In applying the constitutional provision, the courts have formulated various tests, chief among which has been a limitation of the subject-matter to one subject, which, however, may embrace the carrying out of that subject-matter in various objective ways, provided the objectives are naturally connected with the subject-matter and the title could be said to apprise the reader of what may reasonably be expected to be found in the statute.” (Burke v. Kern, supra, p. 213.) It follows that chapter 300 of the Laws of 1914 does not contravene the constitutional provision relating to the number of subjects with which a local bill may deal or the title of such bill.

No other objections are urged to the constitutionality or applicability of the statutes governing the special assessments here sought to be reviewed by the plaintiffs. . It follows, therefore, that there existed an exclusive avenue of review which was open to the plaintiffs but which they have not followed by the commencement of the action at bar. The problem of taxation to pay for local improvements is one requiring not only just decisions, but also speedy and certain decisions. The statute provides the exclusive method of judicial review to the end that the validity of assessments when once levied may be speedily determined. The court is without power to grant special dispensation from the restrictions of the statute and, therefore, the complaints at bar were properly dismissed.

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

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments affirmed.


author: Loughran, J.

text:
    In the Matter of Samuel Levine et al., Appellants. Town of Fallsburgh, Respondent.
    Argued November 17, 1941;
    decided January 15, 1942.

      Ellsworth Baker for appellants.

      Lazarus I. Levine for respondent.
    The affidavit of the appellant does not suffice as a verified claim. (Curry v. City of Buffalo, 135 N. Y. 366; Winter v. City of Niagara Falls, 190 N. Y. 198; Smith v. Boston & Albany R. R. Co., 99 App. Div. 94; 181 N. Y. 132; Fries v. New York & Harlem R. R. Co., 169 N. Y. 270; Rauber v. Village of Wellsville, 83 App. Div. 581; DeVore v. City of Auburn, 64 App. Div. 81; Ponsrock v. City of Yonkers, 254 N. Y. 91;
      Patterson v. City of Brooklyn, 6 App. Div. 127; Cotriss v. Village of Medina, 139 App. Div. 872; Kingston v. M. S. Constr. Cory., 249 N. Y. 533; Matter of Passero & Sons, 261 N. Y. Supp. 661.)
   Loughran, J.

This is a proceeding for the appointment of commissioners of appraisal in accordance with section 197 of the Highway Law (Cons. Laws, ch. 25). The statute makes these provisions: “In any town in which a town highway shall be repaired, graded and macadamized from curb to curb by the authorities of the town the owner or owners of the land adjacent to the said highway shall be entitled to recover from the town the damages resulting from any change of grade. A person claiming damages from such change of grade must present to the town board of such town a verified claim therefor within sixty days after such change of grade is effected. The board may agree with such owner upon the amount of damages to be allowed him. If no agreement be made within thirty days after the presentation of the claim, the person presenting it may apply to the supreme court for the appointment of three commissioners to determine the compensation to which he is entitled. Notice of the application must be served upon the supervisor of the town at least ten days before the hearing thereof. All proceedings subsequent to the appointment of commissioners shall be taken in accordance with the provisions of the condemnation law so far as applicable.” (The emphasis is ours.)

In attempted compliance with the foregoing requirement that such “ a verified claim ” be presented, the petitioner served upon the respondent town board a document in this form:

“ State of New York ] ÍSS * ’
“ SAMUEL LEVINE being duly sworn, deposes and says that he is the owner of a garage property adjacent to the highway leading from South Fallsburgh toward Hurleyville and bounding the property of the Fallsburgh Lumber Company on the Westérly side; that the Town of Falls-burgh graded and macadamized the said highway at a point where the same passes through and along the premises of deponent and as a result thereof changed the grade of the same causing the premises owned by deponent to be damaged in the sum of $3,000.00. This change was effected and completed on or about the 22nd day of August, 1940.
Deponent hereby makes claim against said Town of Fallsburgh for the damages resulting from such change.
“ SAM LEVINE.
“ Severally sworn to before me this 19th day of October, 1940.
Ellsworth Baker,
Notary Public.”

The courts below were of opinion that the phrase a verified claim,” as used in section 197, indicates a written demand confirmed by an affidavit of verification in the form prescribed for pleadings by rules 99-100 of the Rules of Civil Practice. In that view, the foregoing document was without effect and this proceeding had no basis. We agree with the petitioner-appellant that this construction outruns the signification of a fairly simple statute.

“ What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell v. Zouch, Plowden, 359 * * *: that ‘ a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him.’ ” (Story, J., Prigg v. Pennsylvania, 16 Pet. [U. S.] 539, 615.) An affidavit is ordinarily the authorized vehicle for the making of a claim to specific property, even where the custody is that of the law. For example, a claim by a third person to a replevied chattel is to be made in that form. (Civ. Prac. Act, § 1107.)

The claim permitted by section 197 is of the broader kind. Damages to be thereby demanded will be unliquidated and can be awarded only through the procedure directed by the statute. No particular data are specified as necessary to a statement of the claim, the reason being, as we suppose, that one party will know as well as the other whether the essential facts have taken place. A conventional affidavit of verification of a pleading would be out of place on an instrument of demand so called for. (Cf. Court of Claims Act, § 11; Lien Law, § 9 [Cons. Laws, ch. 33]; Second Class Cities Law, § 244 [Cons. Laws, ch. 53].) The foregoing document, we believe, fully answered the requirement of section 197 that a verified claim be made by the petitioner-appellant for the damages demanded by him.

The orders should be reversed and the motion to dismiss the proceeding denied, with costs to the appellant in all courts.

Lehman, Ch. J., Pinch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Orders reversed, etc.


author: Finch, J. Lewis, J.

text:
    In the Matter of Maria G. Miglietta et al., Appellants. Twenty-six Sixty Broadway Corporation, Respondent.

      Argued November 24, 1941;
    decided January 15, 1942.

      William F. Walsh and Robert L. Levine for appellants.
    The principal asset of the corporation having been sold, a non-consenting stockholder may demand that his stock be appraised and paid for. (Matter of Timmis, 200 N. Y. 177; Matter of Bickerton, 196 App. Div. 231; 232 N. Y. 1; Matter of Berrea, 234 App. Div. 450; Matter of Drosnes, 187 App. Div. 425; Matter of Erlanger, 206 App. Div. 148; Matter of Clark, 131 Misc. Rep. 151; Kaszubowski v. Buffalo Telegram Corp., 131 Misc. Rep. 563; Matter of Fulton, 257 N. Y. 487; People v. Ballard, 134 N. Y. 269; Matter of Silberkraus,
      250 N. Y. 242; Matter of Seiler, 239 App. Div. 400; Murrin v. Archibald Consolidated Coal Co., 196 App. Div. 107; 232 N. Y. 541.) A corporation organized under article 2 of the Stock Corporation Law (Cons. Laws, ch. 59) pursuant to section 21 of the Personal Property Law (Cons. Laws, ch. 41) and section 111 of the Decedent Estate Law (Cons. Laws, ch. 13) is a business corporation and a non-consenting stockholder is entitled to the remedies provided in sections 20 and 21 of the Stock Corporation Law. (Mertz v. Guarantee Trust Co., 247 N. Y. 137; Matter of Timmis, 200 N. Y. 177; Matter of Bickerton, 196 App. Div. 231; 232 N. Y. 1.)

      M’Cready Sykes, George L. Shearer and John Henry Mottola for respondent.
    Appraisal of and payment for his stock and the stockholder’s withdrawal from the salvage enterprise would defeat the policy of the mortgage salvage corporation statute. (Matter of Chapal, 269 N. Y. 464; Matter of Otis, 276 N. Y. 101.) The statutory provision that stockholders of salvage corporations shall have power to authorize sales confers no preferential right to appraisal of and payment for the stock of any one of them. (Cons. Laws, ch. 13, § 111; Cons. Laws, ch. 41, § 21; Matter of Otis, 276 N. Y. 101.) The provision for appraisal, payment for stock and withdrawal is inapplicable to sales made by a corporation in the regular course of business and in furtherance of its normal corporate purposes. (Surace v. Danna, 248 N. Y. 18; Matter of Timmis, 200 N. Y. 177; Matter of O’Hara, 133 Misc. Rep. 184; Matter of Bickerton v. New York Theatre Co., 232 N. Y. 1; Wattley v. Nat. Drug Stores Corp., 122 Misc. Rep. 533; 209 App. Div. 872; Keating v. Coleman, 214 App. Div. 668; Matter of Knaisch, 203 App. Div. 725.)
   Finch, J.

May a share owner in a salvage corporation demand appraisal of and payment for his stock when the salvage corporation sells the property acquired at the foreclosure sale and takes back a purchase-money mortgage?

Prior to 1937 the United States Trust Company was mortgagee of a $560,000 mortgage on premises 2660-2668 Broadway, New York city, in which 56 shares at $10,000 each had been sold to various interests. ' Upon foreclosure of the mortgage the United States Trust Company bid in the property and, with the consent of all 56 share owners, formed the defendant salvage corporation. Each of the stockholders received a share of stock representing his $10,000 investment in each certificate. The appellant Miglietta thus became a voluntary stockholder of the salvage corporation, receiving two shares of stock. Subsequently Walsh and Levine acquired one of such two shares from Miglietta. The corporation is known as a salvage corporation authorized by section 21 of the Personal Property Law (Cons. Laws, ch. 41) and section 111 of the Decedent Estate Law (Cons. Laws, ch. 13) for the purpose of liquidating property acquired by a fiduciary on the sale of mortgaged property where the mortgage had been divided into shares or participations held in different trusts or, as the trusts were terminated, by individuals. The purpose and powers of the corporation are stated in its certificate to be to acquire, manage, sell, mortgage or lease the real property in question, with power to invest the surplus, and to be dissolved upon final liquidation of the entire interest in such real property. Acquired in 1937, a sale of the property was negotiated in 1940, at the price of $500,000, being $25,000 in cash and $475,000 in a purchase-money bond and mortgage, the purchaser to make certain amortization payments and alterations and improvements at an estimated cost of $50,000. The contract of purchase was conditioned on procuring the consent of the stockholders. A meeting of stockholders was duly called, at which the contract of sale was approved by an affirmative vote of holders of 49.92666 out of the total 56 shares outstanding, no vote being cast in opposition. The appellants as holders of the two shares did not vote at all but subsequently protested against the proposed sale and demanded payment for their stock. The sole question on this appeal is whether appellants as a matter of law are entitled to payment for their stock at a value to be fixed by appraisers. Special Term denied the application of appellants for the appointment of appraisers. The Appellate Division unanimously affirmed.

The present corporation is a salvage corporation. Its assets are confined to the mortgaged property on foreclosure and its eventual liquidation and distribution among the owners in exact proportion to their interests. That was the only regular, ordinary business of the corporation. It had none other. It was formed to hold title to the single parcel of real estate acquired on foreclosure with the object of liquidating the same and salvaging to whatever extent was possible the original mortgage investment and thereupon to be dissolved. Obviously, unless a statute compels a different result, equality among the shareholders would be equity. The preservation of equality as among the certificate holders, a single management with the power of sale and liquidation, and pro rata distribution of proceeds are inherent and essential features of any salvage operation. Equality of distribution according to the respective shares in a salvage operation conducted for the benefit of associates forced together in a common enterprise of recovery must be the very heart of a salvage corporation authorized by legislative policy. Against this the appellants direct their present claim. They seek to invoke the statute (Stock Corp. Law, §§20 and 21 [Cons. Laws, ch. 59], providing that stockholders objecting to the sale of corporate assets whereby the purpose of the corporation is altered, may withdraw from the enterprise and demand that the corporation shall buy them out, paying such sum as shall be found on appraisal to represent the value of their shares in the corporate enterprise. Such claim, if successful, must of necessity give to these appellants a priority over all other shareowners. The salvage company has no assets other than the proceeds of the sale which it has made of its entire property, namely, $25,000 in cash, slightly more than adequate to cover sales cost, such as broker’s commissions, and a purchase-money mortgage of $475,000, with interest and amortization clauses, and the agreement of the purchaser to make improvements at an estimated cost of $50,000. These make up the entire assets of the corporation. If successful the appellants would manifestly destroy the equal distribution otherwise provided for the shareholders. The order of the court, to be effective, mtist be enforceable by forced sale of the corporate assets. There appears nothing else from which to pay the claim of the creditor. The dissenting appellants would thus not only have obtained the position of a preferred creditor, but presumably all the assets would have to be sold for the mortgage is indivisible. Enforced sale would, therefore, not only give the appellants priority, but would take away from the other stockholders the value which might be attained through orderly liquidation of the mortgage. Indeed, the appellants recognize this preference to themselves and hardship to the other stockholders, and seek to answer by serving upon the respondent a notice to produce upon the hearing of this appeal various financial statements so as to show to the court the cash position of this respondent. Appellants suggest that at the time of sale the salvage corporation received $25,000 in cash, of which $8,500 was paid for brokerage and that after payment of fees and other incidental expenditures there would still be left over $12,000 in cash. They then suggest that the corporation should have received in the meantime certain interest and amortization payments. As the property sold for $500,000, which was $60,000 less than the mortgage, the appellants state that they would be entitled to receive between them a sum of less than $18,000. They assume that the corporation would have that much in cash and hence it would not be necessary to sell the mortgage at auction.

The appellants further urge in their brief that they will be willing to stipulate “ in order to make certain that the respondent will not be damaged, and in order to make further certain that the mortgage held by it will not have to be auctioned off * * * that the valuation of appellants’ stock * * * w]]] be collectible only by the appellants from moneys which the respondent has on hand (provided it does not declare and pay a dividend to the stockholders in the meantime); or, if there is not sufficient moneys on hand to pay the appellants in full, then any balances remaining unpaid can only be collected by the appellants from respondent out of the interest and amortization payments made by the mortgagee.” Thus do appellants seek to prevent any payment of dividends out of interest and amortization payments to the other shareholders until they themselves shall have received immediate payment of their shares in full, thereby eliminating as to their interest any possibility that the purchaser may default in his interest and amortization payments, and compel a second foreclosure. No better illustration of the inequity of the demand of appellants can be found than their own suggestion. It thus becomes necessary to examine in detail the statutes invoked by the appellants as the basis of their application.

The statute authorizing the formation of salvage corpt 'ations appears in identical terms in the Personal Property Law (§ 21, subds. 3 and 4) and in Decedent Estate Law (§ 111). Subdivision 4 of section 21 of the Personal Property Law provides: The corporation organized for the acquisition of such property shall be a business corporation, and shall have all the powers of such a corporation, and its stockholders shall have the same power to vote to authorize or confirm any sale, mortgage, lease, option or other disposition of any or all of its property that is possessed by individual stockholders of a business corporation * * *.”

When we compare the right which a stockholder has in an ordinary business corporation under sections 20 and 21 of the Stock Corporation Law, we find that the right there given consists. of two distinct elements, first, that before such sale or conveyance shall be made a consent must be obtained at a meeting of the stockholders. In addition, any stockholder not voting in favor of the sale or conveyance may object to the sale and conveyance and demand payment for his stock, subject to appraisal. In subdivision 4 of section 21 of the Personal Property Law, quoted above, we find that it is provided that the stockholders of a salvage corporation shall have the same right to give or withhold their consent to the confirmation of any sale or other disposition of any or all of its property that is possessed by individual stockholders of a business corporation. Thus the first right given under sections 20 and 21 of the Stock Corporation Law is expressly given and no mention is made of the second right, namely, the right of appraisal. Furthermore, whenever the Legislature has intended to confer the right of appraisal, payment and withdrawal, it has taken pain's to confer this right by express grant, which is lacking in subdivision 4 above. Thus in section 14 of the Stock Corporation Law, providing for the issuance of stock to employees, it is specifically provided that a protesting stockholder “ shall have the right, subject to the conditions and provisions of section twenty-one, to have such stock appraised and paid for as provided in said section.” In section 36, where a corporation alters its capital structure, the Legislature has conferred this right by express grant. Again, where a merger is provided for, in section 85, subdivision 7, the right of appraisal and payment has been specifically provided for. Again, where provision is made for the consolidation of corporations, in section 87, the same right of appraisal and payment is provided for. Also, by section 91, where consolidation with a foreign corporation is permitted, the same express grant of the right of appraisal and payment is set forth. Thus, in subdivision 4 above quoted, providing for salvage corporations, not only does the express provision that the stockholder shall have the power to give or withhold consent by vote lend argument that the right of appraisal and payment are thereby excluded, but also the omission of an express grant for appraisal and payment is not without significance.’ Moreover, when we seek to apply the right of appraisal and payment to dissenting stockholders, where a corporation issues stock to its employees, where it alters its capital structure, where it merges, or consolidates, we do not find that the whole purpose of the corporation is disarranged. But where a liquidating corporation is salvaging mortgaged property, the whole heart of the plan is disrupted if minority participants may force their associates to raise new money to buy them out. It would thus be unreasonable in seeking to find the legislative intent not to give weight to the omission in the salvage statute in providing for appraisal and payment of the shares of stock. The right to vote to authorize or confirm any sale is a right separate and distinct from the additional right to withdraw from the enterprise, to have the stock appraised and to receive payment therefor. This latter right is not a necessary and inseparable element of the right to be consulted, nor is it necessarily involved in or implied by the right to be consulted. The right to withdraw and compel appraisal and payment is a separate right to be created by its own legislative grant.

Finally, subdivision 4 provides that a salvage corporation formed thereunder shall have the powers of a business corporation. It does not provide that such salvage corporation shall have more power than a business corporation. If sections 20 and 21 of the Stock Corporation Law were read literally, a five- and ten-cent store 'could not sell a paper of pins without a two-thirds vote of its stockholders, for it would be literally within the words of the statute as the corporation would be selling part of its property. The courts, therefore, have imposed on the generality of the language of the statute necessary limitations of application in whose absence the statute would lead to injustice or absurdity. The test applied by the courts is not the amount involved, but the nature of the transaction, whether the sale is in the regular course of the business of the corporation and in furtherance of the express objects of its existence, or something outside of the normal and regular course of the business. (Matter of Timmis, 200 N. Y. 177, 181, 182.)

Applying this test to the case at bar, we find the sale of the property in order to carry out the liquidation and distribution of the assets to the stockholders, was the explicit purpose, indeed the only purpose, for the organization of the corporation and manifestly was a sale in the regular course of its business. That was the very object for which the corporation was formed and for which it existed. Indeed to allow an individual dissenting stockholder to obtain appraisal and payment for his stock would defeat the very object for the formation of the corporation. Appraisal and payment for one, two or three stockholders, ahead of their associates, such as appellants seek, would accord to them a preferential position at variance with the very purpose of the corporation. It is not too much to say that such corporation has nothing wherewith to create such a preference save by selling out the other associates.

The order appealed from should be affirmed, with costs.

Lewis, J.

(dissenting). The sale by the respondent, Twenty-six Sixty Broadway Corporation, of a building which was its principal asset, and its acceptance in payment therefor of $25,000 in cash and a mortgage of $475,000, was validated by corporate action taken pursuant to section 20 of the Stock Corporation Law. Concededly the transaction received the formal consent of more than two-thirds of the respondent’s stockholders. However, I do not find in that circumstance a legal reason why the three appellants, as non-consenting stockholders, are required to accede to the sale which, in result, requires them to accept, in place of the aliquot interests formerly owned by them in the property sold, a like proportion in a mortgage upon the premises in an amount equal to nineteen-twentieths of the sale price.

It is not denied that before the sale was consummated in accord with section 20 of the Stock Corporation Law the appellants, in good faith, served upon the respondent timely written notices of their objections to the sale and demanded payment for their stock. Nor is it denied that pursuant to section 21 of the Stock Corporation Law, and as a means of enforcing their demands, the appellants, within the statutory period, instituted the present proceedings to bring about an appraisal of their respective stock holdings.

The business of the respondent corporation is not the purchase and sale of real estate generally. According to answers interposed in these proceedings the respondent corporation was organized “ for the purpose of holding title to a single parcel of real estate,” and its articles of incorporation authorize it To acquire, hold, manage, improve, develop, sell, mortgage or lease * * * ” that single parcel of real property. It also appears that after it had acquired upon foreclosure sale the building at 2660-2668 Broadway, which then comprised its chief asset, it administered, managed, utilized and operated ” the premises for the benefit of the various estates, binds and persons [including the appellants] entitled to participating shares in the original mortgage * * *.”

As stockholders of the respondent corporation, the appellants had the right, under section 20 of the Stock Corporation Law and in the exercise of their business judgment for the protection of their own interests, to withhold their consent to the sale for $500,000 of the corporation’s chief asset under a contract which called for a cash payment of only $25,000 and a mortgage for the balance of the purchase price. I find no provision in section 21 of the Personal Property Law or any other statute which, by direct statement or by implication, requires of the appellants, as non-consenting stockholders, that they acquiesce in the change in the assets of the corporation which results from the corporate action thus taken. To the contrary, when the Legislature enacted section 21 of the Personal Property Law it specifically provided (subd. 4) that the stockholders of a business corporation, such as the respondent — organized to acquire property which is the subject of sale on foreclosure — “ shall have the same power to vote to authorize or confirm any sale, mortgage, lease, option or other disposition of any or all of its property that is possessed by individual stockholders of a business corporation * * *.” (Emphasis supplied.) Thus did the Legislature preserve to non-consenting stockholders the statutory rights which the appellants now invoke under sections 20 and 21 of the Stock Corporation Law.

As I view the decision about to be made it construes section 21 of the Personal Property Law in such a way as to limit the rights of non-consenting stockholders, upon the sale of corporate assets, in derogation of rights previously granted to such stockholders by sections 20 and 21 of the Stock Corporation Law and preserved to them by section 21, subdivision 4, of the Personal Property Law. In other words, the court, by judicial construction, is about to enlarge the scope of the statute as to a subject upon which I find expressed therein a contrary legislative intent. We have no right by interpretation to add to or take away from the clear mandate of the statute.

The orders should be reversed and the petitioners’ application for the appointment of appraisers pursuant to sections 20 and 21 of the Stock Corporation Law should be granted.

Loughran, Rippey and Desmond, JJ., concur with Finch, J.; Lewis, J., dissents in opinion in which Lehman, Ch. J., and Conway, J., concur.

Order affirmed.