author: Marvin, J.

text:
    Trustees of Hobart College v. Fitzhugh et al., Executors of Allen Ayrault.
    Legacy to a college, payable in two years, provided within one year it performed certain conditions. The question whether the condition has been performed does not, until the expiration of the two years, raise a controversy capable of being submitted without action, under section 372 of the Code.
    The parties asking the court to determine, before the expiration of a year, whether certain admitted facts amounted to a performance of the condition by the legatee, and if not, what further acts were required, no judgment can be given except one dismissing the case.
    Such a case cannot be entertained as one for the construction of a will, until the expiration of the time for performing the condition, nor without all the parties to be affected, as residuary legatees, next of kin, &c., uniting in the submission.

      Appeal from the Supreme Court. The parties united in a written statement of facts, setting forth, among other things, a clause in the will of Allen Ayrault, deceased, in which, after reciting that the trustees of Hobart College were engaged in efforts to raise money to enlarge its sphere of action, “ upon the condition that the sum of $40,000 shall, within the period of one year from the time of my decease, be raised for the purpose of endowing two professorships in said college, and paying the debts of said college,” the testator bequeathed to Hobart College the sum of $20,000, “to be paid within two years from the time of my decease, for the purpose of founding and permanently endowing an agricultural professorship.” The testator died February 4,1861. On the 30th Uovember, 1861, the parties submitted their statement to the Supreme Court, at general term, in the seventh district, and asked the court to determine whether the action of the trustees of the college, in raising a subscription of $60,000 for the uses of the college, had satisfied the condition of the bequest; if not, what further sum the college was required to raise; whether the sum of $40,000 was required to be raised after the testator’s death, in addition to, and independently of, the effort to raise $60,000 (which provided for other objects than professorships and the payment of debts; the building of a chapel and the endowment of a chaplaincy, among other things), which was known to the testator, to which he had himself subscribed (and his executors paid) $10,000, and which, it was argued, was the effort referred to in the will; and, finally, other questions were submitted relating to the same matter.
    The court decided that $40,000 must be raised within a . year from the testator’s death, for the specific endowing two professorships and paying debts, and that the money paid on the subscription for $60,000 should be applied as part of the $40,000, except sums amounting to $34,500, which had been subscribed for other specific objects, chapel, chaplaincy, scholarships, &c. Judgment was entered accordingly, and the executors, who called themselves defendants, appealed to this court.

      Scott Lord, for the appellants.

      E. G. Lapham, for the respondents.
   Marvin, J.

At the time this case was submitted to the court, and. when it was decided, the $40,000 contemplated by the will had not been raised or secured by gift, subscription or otherwise. Again, two years had not elapsed from the decease of the testator, and his bequest was not payable until that time. The trustees, called the plaintiffs, had no cause of action, and I am not able to see how any judgment, other than for the defendants, without prejudice to an action at the right time, could have been rendered.

The case is not within the provisions of § 372 of the Code. There was no question in difference which might be the subject of a civil action. Under no circumstances could the college have any action until the lapse of two years after the death of the testator. Nor could the parties to this action be parties to a question in. difference, which might be the subject of a civil action in favor of the college. The only demand the college would ever have, would be .a demand or claim for the $20,000 legacy, and the case shows that, this could not be due prior to February 4, 1863, and this case was heard and decided long before that time. There could never be any question in difference as to the amount of the legacy or its time of payment, and none is made in this case. Nor could there be any question in difference touching the performance of the condition upon which the right of the college to the legacy depends, until after the lapse of one year from the death of the testator, for the college had this one year within which to perform the condition. The college is regarded in this case as the plaintiff or claimant, and is so styled in the case, and, as plaintiff, asks the-court whether it has satisfied the conditions of the bequest, by raising the $60,000 in the manner and for the uses specified, and whether the college is not thereby entitled to receive the bequest at the time when it is payable, by the terms of the will, l^t does not ask the court to decide that it is entitled to the legacy, to render judgment for it, but to say whether it will be entitled to it at the time it may become due. In short, the court is asked its opinion whether the college had already done enough to entitle it to the legacy when it should become due, and if not, then what must the college do more, to satisfy the condition in the will and entitle itself to the bequest. In short, no judgment is demanded, nor could any be rendered upon the facts stated. The Code defines a judgment to be the final determination of the rights of the parties in the action. Ho right or rights are claimed in this case, and none existed. It was simply advice, opinion, counsel, that was desired from the court, and whether such advice, &c., should be sound or not, would be entirely immaterial, as it would bind no one, when a real question, which might be the subject of an action, should arise. By the Code the court is to hear and determine the case at a general term, and render judgment thereon as if an action were pending. The court is only authorized to render a judgment as if an action were pending. An action is the legal demand of one’s right, or a proceeding for the enforcement or prosecution of a right, the redress or prevention of a wrong. The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner. (Code, § 374.)

I am inclined .to think that the case has been regarded mainly as a case to obtain the construction of a will. I am not aware that a legatee has ever been allowed to maintain an action for the purpose solely of obtaining a construction of a will. The legatee may sue for the legacy, and the question whether he is entitled will, of course, depend upon the will, and this may involve construction. But I apprehend that a legatee would not be permitted to maintain an action simply ;o ascertain the meaning of a will, in advance of the legacy being due, or without demanding judgment for the legacy. Executors, &c., may bring an action to obtain a construction )f a will and the directions of the court, and I have no doubt inch a case may be embraced by , section 372. The parties to ¡he question of difference, that is, the meaning of the will, are all those who have any interest and whose rights may be affected by the construction put upon the will. This will, usually include-all the legatees and next of kin, and if rights, to real estate are involved, the heirs and, devisees,, and perhaps the widow. In this case I have been inclined to regard the executors, as the. moving party, the plaintiffs, but if this view could be taken, the question of a defect of-parties-would, at once arise, and the provisions in. section 122 of the Code,, requiring the court,, under.certain- circumstances, to cause- the absent parties to be. brought in, has no application to a case submitted to the general term, under section 372. The parties to the question of difference are to agree upon a case. A. portion of them cannot agree upon a case and submit it to .the court, and- so. give, the court jurisdiction, under section 122, to cause the others to be brought in. No one- can be made a party to the agreed case without his consent. Nor is it a case. in which the court may-determine the controversy between the .- parties before it, without prejudice to the rights, of others, by saving their.rights. How- can. -the rights, of the next of kin, or the. residuary legatees, or perhaps other. legatees, be saved? They would not be bound by the judgment, not being parties, and could, therefore, litigate the whole matter over again .with the executors, who might be made personally liable, having paid this legacy, to the- college, or -they might be insolvent.

Our attention, on the argument, was directed .to section 113 of the Code, by which it is declared that an executor, &c., may sue without joining with: him the person for whose benefit the - action is prosecuted,. This has no- application in the- case, of an. aqtion to obtain the construction of a will and the directions of the court. Such action is not prosecuted for the benefit.of any. particular person.. It is. an action, in effect,- against all' the persons to .be affected ■ by the construction given to the. will.- The executor says: “I am in doubt about your rights, and I.call you .all into court that you may defend them,- or have an opportunity to do so.” It is not like an action against a debtor of the testator, to. collect a debt, which, when collected, will inure to the benefit of legatees and next of kin. Such actions are for the benefit of those interested in the estate.

But if we could regard this as. an action by the executors, and could also get over the objection of the want of parties, as I think was meant, a difficulty would still remain, arising under section 372. We have examined this section, regarding the college as plaintiff; and the like objection exists, if we regard the executors as plaintiffs, seeking a construction Of the will. As we have seen, the question to be submitted must be such as might be the subject of a civil action, and upon which the court is required to render judgment as if an action were pending. In this case the facts to constitute the action would be stated, in short, by the executors, thus: the testator bequeathed to the defendant $20,000, payable within two years after his death, upon condition that the defendant should raise, for purposes specified, $40,000, within one year from his death; this time has not yet elapsed. The college claims it has raised the $40,000 for the purposes specified, and has fully performed the condition, and the facts upon which such claim is made are then set forth. The plaintiffs state that they are not advised or are in doubt whether such facts are sufficient to show that the $40,000 have been raised as required in the condition in the will, and demand the judgment of the court upon the question whether the condition has been performed. Now, suppose the defendant, the college, should demur, what judgment would the court render ? The complaint would of necessity be dismissed, whatever view the court should take of the facts upon the question of the performance of the condition. If the court should hold that the condition had been complied with, it would still hold that the executors had no cause of action against the college, nor right to bring it into court, to compel its acceptance of the legacy, assuming, now, that the executors had a right to pay it prior to the expiration of two years from the death of the testator. Indeed, whatever construction may be put upon the will in this respect, the executors would have no right to pay until after a year from the time letters testamentary were granted. (2 R. S., p. 90, § 43.) If the court should say, as it has said in this case, the condition has not been performed, and the college is not yet entitled to the legacy, what then ? The college would answer, the time for performance has not expired; if we desire the legacy, the condition will be performed in time. The same remarks can be made touching the question as to what “ two professorships ” were intended by the testator. The college might say: we'think he intended two professorships mentioned in our pamphlet, but if there is any doubt about this, we certainly have the right to raise the $40,000 for two other professorships within the year, and that time has not expired, and the executors have no right to assume that the $40,000 will not be raised in time, or to assume, in any form, that the college will not comply in time with the conditions upon which its right to the legacy depends. The position, in short, would be that the executors had no right to raise any of these questions, and bring the college into court, prior to the expiration of the time for performing the condition, and such position would be unanswerable. The Same result would follow if the college should not demur, but answer. The difficulty is, -that there was no controversy between the parties that might then be the subject of a civil action in which a judgment could be rendered. The facts agreed upon show conclusively that neither party had any cause of action, at that time, against the other, and it is not material which party shall be regarded as plaintiff. No judgment could be rendered other than a judgment for the defendant, dismissing the controversy or action, or rather case, without prejudice to the rights of the parties, in case there should be a controversy, &c., when the time for it should arrive. ' Such should have been the judgment of the Supreme Court, and the judgment rendered, if it may be called a judgment, should be reversed, and the proper judgment should be rendered by this court.

Davies and Selden, Js., expressed no opinion; all the other judges concurring,

Judgment reversed and proceeding dismissed without judgment, and without costs to either party.


source: Caselaw Access Project

author: Balcom, J. Selden, J.

license: Public Domain

text:
    Smith et al., Administrators, v. Martin et al.

    An agreement is not, it seems, necessarily usurious which, providing for tire sale of merchandise by a factor on a commission of five per cent is full of all charges except disbursements, also provides a commission of five per cent on advances made by the factor.
    Whether the commission on the advances was merely a cover for an usurious charge for forbearance, is a question of fact, to be settled by further evidence; and proof that such a charge was customary with merchants engaged in similar business, though not controlling, is pertinent on the point of its reasonableness.
    Ifj however, such charge were usurious, the fact that it had been stated in the accounts between the parties, showing the application thereto as payment of the proceeds of sales of the principal’s merchandise, and that such account had "been acquiesced in for two years without objection, will preclude the principal from avoiding the contract in a suit to adjust the final balance between himself and the factor on the entire course of dealing prior and subsequent to the rendering such account.
    Appeal from the Supreme Court. This was a suit in Chan, eery, commenced in 1843, for an accounting between the firms of the complainants’ intestates, under the names of Seymour & Wood, and Seymour, Forsyth & Co., and the defendants. The business of the complainants’ intestates was that of commission merchants. They received wool and sheepskins from the defendants from 1838 until 1842, and made advances thereon and sold such wool and sheepskins (except some which were unsold at the time this suit was commenced) as commission merchants for the defendants; and they made statements, from time to time, of the accounts between them and the defendants, which they sent to the latter.
    The defendants purchased the wool and sheepskins at and near Watertown and Oswego, and, from time to time, consigned the same to the firms represented by the complainants, at Albany, for sale on commission; and on account thereof the defendants drew drafts, from time to time, on such firms, which were accepted and paid by them.

      The last of the above mentioned statements sent to the defendants, and which they received, showed a balance due from them on September 5, 1842, of $13,835.10.
    After this date and prior ' to the first day of January, 1843, the original complainants sold wool and sheepskins of the defendants’ to the amount of $7,465.58; and when they commenced this suit, in March, 1843, they claimed a balance was due them, from the defendants, of $7,109.58, subject to be reduced by the sale of the wool and sheepskins the complainants had in their possession, belonging to the defendants, which had not been sold, and which the complainants offered, in their bill, to take at the market price, and which they subsequently sold before any accounting was had in the suit.
    Among the defences set up in the answer was that of usury, which defence was predicated upon an agreement, dated the 18 th day of February, 1840, signed by Seymour & Wood, in the words and figures following, viz:
    “Terms. First. On condition we have the selling of all your wool and skins, we will do it at a commission of five per cent, including all charges except such as we pay out.
    “ Second. We will advance or accept in two-thirds the value of property put in our hands.
    “Third. We now advance $2,000, in cash, for 90 days, at 5 per cent commission.
    Fourth. Flo drafts to be made on property, short of
    1 at 3 months, from 20th February,' say............ $1,000
    1 “ 4 “ “ “ “ ■ “ ............ 2,000
    1 “ 4 “ “ 1st March, “ ............ 1,000
    1 “ 4 “ “ 15th “ “ 1,000
    1 “ 4 “ “ 1st April, “ 1,000
    $6,000
    “ Fifth. When your drafts fall due (if not put in funds) we are at liberty to sell the property at the market .price to meet the same, or if we advance the móney to pay the same, charge 5 per cent on such advances.

      “ February 18, 1840. “S. & Wood.”

      Seymour & Wood advanced to the defendants, under the above agreement, the sum of $8,574.66, between the date thereof and the first day of August, 1840, which advances were charged to the defendants in the account rendered to them under the last, mentioned date, and by which account a balance of¡ $2,072.67 appeared to be due from the defendants to Seymour & Wood. In that account the defendants were credited with the net receipts from sales of wool and sheepskins, amounting to $13,825.75; and between the 18th day of February and the time of rendering such account, Seymour & Wood had paid out other moneys for the defendants, amounting to about $2,500, which was included in that account.
    The defendants acquiesced in that account, as well as the others rendered, until a short time prior to the commencement of this suit.
    The complainants put in a replication to the answer. The suit was transferred from the Court of Chancery to the Supreme Court, in 1847.
    It is unnecessary to notice any of the proceedings or decisions in the suit, until it was referred to Azor Taber, Esq., to Testate the accounts, in 1854. He stated the accounts and made his report, in which he charged the defendants with the $8,574.66, advances made under the agreement of February 18,1840, and which they claimed he should reject as usurious; and he found due the complainants from the defendants, $738.-45, with interest from the first day of January, 1846. The defendants excepted to that part of the report which charged them with the $8,594.66. The case was afterwards brought to a hearing at a special term of the Supreme Court, where said $8,574.66 was rejected as usurious, and a decree made in favor of the defendants, for $19,902.99. The complainants appealed therefrom to the Supreme Court, at general -term in the fifth district, where the judgment at special term was reversed, and a judgment was rendered against the defendants for $738.45 with interest, according to the report of Mr. Taber, and costs. The defendants appealed from that judgment to this court;

      The original complainants died during the progress of the action, and the present respondents, who are their administrators, were substituted in their places.

      George F. Comstock, for the appellants.

      John H. Reynolds, for the respondents.
   Balcom, J.

The controlling point in the case is, whether the defendants were properly charged by the referee with the $8,574.66, advances the firm of Seymour & Wood made upon the wool and sheepskins, under the agreement of February 18, 1840. By this agreement, Seymour & Wood were to have a commission of five per cent for selling the wool and sheepskins consigned to them, over and above the charges they should pay out, and also five per cent on the advances they should make upon such property.

The defendants’ counsel insists that the provision allowing 'Seymour & Wood five per cent on such advances rendered the agreement usurious, and void in all its parts. But I am of the opinion he is mistaken in this, and that the agreement was not, per se, usurious.

In Trotter v. Curtis (19 Johns., 160), the plaintiffs charged a commission of two and a half per cent on the amount of money they advanced to meet the defendant’s drafts when he failed to send them produce in time, and interest on the items charged in their account from the time they became due. Chief Justice Spencer, in delivering the opinion of the court, said: There is no pretence for saying that the commission charged by the plaintiff for accepting and paying the defendant’s drafts when the plaintiffs had not funds in their hands belonging to the defendant, out of which to pay the drafts when due, was usurious.”

In Nourse v. Prime (7 Johns. Ch., 77), Chancellor Kent said: “Whether the commission for procuring the stock from Philadelphia was high or low, was a question for the parties to settle by their agreement; also, that “ there must be an unlawful or corrupt intent confessed or proved, before we can pronounce a transaction to be usurious.” (Condit v. Baldwin., 21 N. Y., 221.)

In Suydam v. Bartle (10 Paige, 94), Chancellor Walworth said: “ It is not, per se, usurious for an agent or factor to agree for a reasonable commission, to be paid by the principal, for accepting and paying bills with funds furnished by the latter;” also, that “if the agreement, by its terms, contemplated an advance of money to pay the bills when they became due, so that they should not be returned protested if the drawers did not furnish the means of paying, them at the day, it would still be a question of fact, to be decided by proof, whether two and a half per cent was intended as a mere shift to cover an usurious premium on such ‘advances, or as a compensation for the trouble and expense of accepting and paying the bills by* the complainants, as the agents of the drawers.”

In Suydam v. Norton (4 Hill, 211), the agreement was this: “ It is also mutually understood and agreed that all the produce sent to New York by Horton,. Bartle & McNeil, except lumber, shall be sent to Suydam, Sage & Co., for sale on commission; that they shall at all times be put in funds for their liabilities by the time they become due; .and that they shall be entitled to per cent, commission on all acceptances or advances met otherwise than with produce. It is understood that Suydam, Sage & Co., are to accept, at all times, to the amount of $20,000; that flour and other produce in their hands shall be considered as money at the market price unless limited or ordered held for higher prices. It is also further agreed, that at the expiration of each and every year, all the liabilities and§advances of the said Suydam, Sage & Co., for Horton, Bartle & McNeil, shall be paid up, and the account balanced by the said Horton, Bartle & McNeil.” And in an action "by Suydam, Sage & Co., to recover the sum advanced upon one of the drafts of Horton, Bartle & McNeil, drawn, accepted and paid under such agreement, with interest and two and a half per cent commission, a majority of the court held, that the transaction was not nécessarily usurious. The proof in that case, that the charge of a commission on such advances was customary among merchants engaged in similar'business, cannot be regarded as controlling the decision; for if the transaction was - usurious, no custom •could'have made-it lawful.

The advances in this case having been made by Seymour & Wood, in doing the business intrusted to them by the defendants, it was a question of .fact whether the agreement for a charge of'five per cent commission on such advances rendered the transaction usurious. (Ketchum, v. Barber, 4 Hill, 224; S. C., 7 id., 444; Dry Dock Bank v. Am. Life Ins. and Trust Co., 3 Comst., 344.)

In Martin v. Feeter (8 Wend., 533), Chief Justice SAVAGE said: “Usury is a defence Which must be strictly proved, and "the court will not presume a state of facts to sustain that defence, where the instrument is consistent with correct dealing.” (Sizer v. Miller, 1 Hill, 227; Merritt v. Benton, 10 Wend., 117; 2 Kern., 223; 2 Hill, 635.)

The- defendants did not give any evidence in this case to show that the commission agreed to'be paid and charged" upon the advances, was unreasonable, or more than a just compensation for‘the- trouble' and expense Seymour '& Wood were put to in doing the'business, aside" from the direct commission they ’had for soiling the wool and sheep skins; and as the Supreme' Court held the transaction Was .not usurious, the fact is conclusively settled, that the commission on”'the advances was not a shift or device to cover an usurious premium thereon, and we must so hold.

But if it were conceded that these advances were made upon an usurious agreement, I am Of the opinion they were :properly -charged to the defendants by the referee, for the reason that such advances were voluntarily.paid by'them to Seymour & Wood more than two years prior to the time the defendants first claimed the same were tainted with usury. ■When Seymour & Wood sold wool and sheep skins belonging "to the defendants,' they applied the avails thereof to the payment of such advances, until the same were fully paid, as they had the right to do, so long as the defendants did not object. (Van Rensselaer's Executors v. Roberts, 5 Denio, 470; Allen v. Culver, 3 id., 284.) In the account stated and rendered by Seymour & Wood to the defendants, August 1, 1840, the latter-were charged with all the advances in dispute and the commissions thereon, and credited with §13,825.75, net receipts of sales of wool and sheep skins, and they acquiesced in that account; and the defendants were subsequently furnished with other statements of the accounts between them and the firm of Seymour & Wood and their successors in the business, showing that such advances, interest and commissions thereon were paid, in which statements the defendants acquiesced, until it was too late for them to raise any unconscionable objections to the same; they were bound to object to the correctness of the accounts rendered to them within a reasonable time after they received the same, which they did not do. (Lockwood v. Thorne, 1 Kern., 170; S. C., 18 K Y., 285.)

In Dix v. Van Wyck, (2 Hill, 522), Bronson, J., in delivering the -opinion of the court, said : “ Contracts affected by usury are not so utterly void but that they may be ratified; and, therefore, if a borrower repay a loan which he might have avoided for usury, he cannot recover the money back again ; though under our statute, he may recover the excess which has been paid beyond the legal interest.”

The borrower may bring an action under the statute, to recover back usury paid to the lender within one year after paying the same (1 R. S., p 772, § 3), or at common law at any time within six years after paying it. (Wheaton v. Hibbard, 20 Johns., 290; 2 Seld., 115.)

I am aware that it has sometimes been asserted that an usurious agreement is incapable of ratification. (See 5 Denio, 236.) But the assertion is not strictly true; for when an usurious loan is voluntarily paid, the contract is certainly ratified, except as to the unlawful interest, which, as has -been seen, may be recovered back.

The defendants’ counsel insists that the payment of the advances in this case, if they are to be regarded as paid, was not voluntary. He relies mainly upon the decision in Mum ford v. American Life and Trust Company (4 Comst., 468), to sustain this position. But all that was said in that case, was, that the payment of an usurious loan is not voluntary, if obtained by the lender out of collateral securities in his hands without the concurrence of the borrower; whereas in this the defendants voluntarily placed the wool and sheep skins in the hands of Seymour & Wood after the contract for the advances was made, and the latter sold such wool and skins with the concurrence of the former, and in a course of dealings with the defendants, most of which has never been objected to; and it was also with the concurrence of the defendants that the avails of the wool and sheep skins were applied by Seymour & Wood and their successors in the business, to the payment of the advances in dispute, as well as others. The payment of such advances, therefore, was voluntary, and the defendants were not entitled to recover them back or have the same deducted from the account of Seymour & Wood,' or their successors, who brought this suit.

The point has not been made, that the defendants should have been credited by the referee with the alleged usurious interest upon the advances, independent of the advances themselves ; and the claim of the defendants was, that they were improperly charged with the advances, not the interest thereon separate from the same. '

For these reasons, I am of the opinion the judgment of the Supreme Court in the action should be affirmed with costs.

Selden, J.

Where a transaction purports, upon its face, to be a loan of goods or money, and such loan constitutes the entire contract, if a greater sum than seven per cent per annum is reserved as a compensation for the credit given, no extrinsic proof is necessary to establish the usury. Such a transaction is usurious, per se. But where the agreement for a loan or advance of mon'ey or goods is only part of an entire contract, embracing other matters, it is in all cases a question of fact whether usury was intended. It is never, in such cases, a' necessary inference, that the premium was reserved solely for the forbearance. Even although expressed in terms to be for forbearance, yet, as the extra premium may have constituted part of the inducement to the making of the contract as a whole, an usurious intent is not to be inferred without proof.

The English cases, in which it has been held that agreements by the purchasers of lands or goods upon a credit to pay more than legal interest for the purchase-money, were valid, and the cases in our own courts holding a similar doctrine in respect to charges by commission merchants, of an extra premium for their advances, rest not upon any peculiar doctrine applicable to such cases, but upon the general principle here stated.

In all these cases, it is incumbent upon the party alleging the usury to prove the usurious intent. The affirmative proof given by the plaintiffs in the case of Trotter & Douglass v. Curtis (19 John., 160), that the two and a half per cent premium charged by them upon their advances was a customary charge, was necessary there, because there was no agreement in that case by the defendants to pay this commission, except such as was to be implied from this proof. But in the case of Suydam v. Westfall (4 Hill, 211), where it was expressly agreed that the plaintiffs should be entitled to two and a half per cent commision on their advance, proof on the part of the plaintiffs of the reasonableness or customary nature of this charge was wholly unnecessary, although such proof was actually given.

In the present case the stipulation for a charge of five per cent upon advances to be-made by the plaintiffs, was part of a written agreement, embracing a variety of conditions other than that relating to such charge, among which were these, viz.: that the plaintiffs should have the selling of the whole of the defendants’ wool and skins; that no drafts should be * drawn upon them, except as specified in the agreement; and that when the defendants' drafts should fall due, the plaintiffs, if not put in funds should be at liberty to sell the property in their hands at the market price.

On the .part of the plaintiffs, it was agreed that they would do the business for a commission of five per cent, including all charges except disbursements; and that they would make certain advances. How, it is impossible to infer from the face of this contract that the plaintiffs would have agreed to accept the five per cent "commission upon sales excluding all charges for storage or other services, without the stipulation for a charge of five per cent upon their advances; and if this stipulation constituted or may have constituted any portion of the consideration upon which they agreed to other, portions of the contract, then, of course, the agreement could not be usurious per'se.

That the commission for advances is five per cent in this case, instead of two and a half, as in the cases of Trotter and Douglass v. Curtis, and Suydam v. Westfall, can make no difference. The amount of the commission is of no importance except as it may bear upon the question of fact whether there was an usurious intent; and as no evidence of such an .intent, aside from the contract itself, was offered on the part of the defendants, the question of the reasonableness or unreasonableness of the commission, or its accordance with custom, did not arise. It follows, from these views, that the court below was right in allowing the items objected to. This conclusion renders it unnecessary to' consider the question whether the defendants were precluded by their acquiescence in the accounts remitted to them by the plaintiff, from setting up the usury. I may, however, say, that I see no reason to differ with the conclusion of the court below on that subject. The judgment should be'affirmed.

Denio, Ch. J., did not sit in the case; all the other judges concurring,

Judgment affirmed.


author: Marvin, J. Denio, Ch. J.

text:
    Sands, Receiver, v. Kimbark et al., Executors.
    Chapter 412 of 1862, providing for the settlement by a reference of controversies between the receiver of an insolvent mutual insurance company and its members or stockholders, is constitutional.
    Such controversies resneoting the adjustment and administration of a quasi trust fund, in which a multitude of persons are concerned as contributors and distributees, have, by the customary law of -this State, antecedent to the constitutional provision for preserving trial by jury, been regarded as of equitable and summary cognizance, and are not among the cases in which the trial by jury has been heretofore used so as to be fastened among rights to remain inviolate.
    To authorize an assessment, and a reference to enforce the same, there must be evidence of losses sustained by the company other .than a mere statement thereof in an affidavit of the receiver—such as proof of judgments recovered against the corporation; the presentment and allowance of claims; or other evidence which would conclude the corporation if it continued in business.
    Appeal from the Supreme Court. This was a proceeding under the act of April 21, 1862, entitled “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies,” to'recover the amount of a premium note made by David Kimbark, which had been assessed for losses to its full amount. The receiver, upon notice, procured the appointment of a referee, for the purpose and in the manner provided in the statute. The referee heard the proofs and allegations of the parties upon written pleadings, the defendants objecting in due time and manner, that the act under which the referee was appointed, was unconstitutional. This objection was overruled and the defendants excepted. The referee found certain facts and conclusions of law, among the latter, that the act under which the reference and trial were had, was constitutional, and to this the defendants excepted. There were some other exceptions, which are sufficiently noticed in the opinions. The referee filed his report and a judgment was entered upon it, in the Supreme Court, which, upon appeal by the defendants to the court at general term, was affirmed, and thereupon the defendants appealed to this court.

      Horace Packer and Ward Hunt, for the appellants.

      Henry R. Mygatt, for the respondent.
   Marvin, J.

The defendants claim that they were entitled [ to a trial by jury, and that the order of reference and the trial by were in conflict with the Constitution, in which it is declared , that “the trial by jury, in all cases in which it has been j heretofore used, shall remain inviolate forever.” (Art. 1, § 2.)" The act of 1862 (Sess. Laws, 748), authorized the reference and trial. Is it in conflict with the Constitution ? j

The Constitution of 1777 contained the like provision, thus: “That trial by jury, in all cases in which it has heretofore been used in the Colony of New York, shall be established and remain inviolate forever.” (§ 41.) The provision in our present Constution is copied from the Constitution of 1821 (art. 7, § 2).

The corporation represented by the plaintiff as receiver, was insolvent, and the defendants’ testator was. a member of such corporation. In equity, the stock and other property of a private corporation are deemed a trust-fund for the payment of its debts, and the creditors have a lien upon it, or a right of priority of payment, in preference to its stockholders; and courts of equity, prior to our Constitution, entertained jurisdiction in such cases and enforced the trust. (2 Story Eq., § 1252.) The trust is implied, and arises from what are called equitable liens, being liens which exist in equity, and of which courts of equity alone take cognizance. (2 Story Eq., § 1215.) Upon the dissolution of such corporation, the creditors may pursue the property and enforce their claims, unless it has passed into the hands of bona fide purchasers; for the property is deemed to be held in trust, first, for the payment of the debts ¡ of the corporation ; and second, for the benefit of the stock-j holders, in proportion to their respective interests. (Tiff. & Bull., Law of Trusts and Trustees, 110; 8 Pet., 286.) The property owned by an insolvent partnership is deemed, in equity, a trust fund, to be first applied in the payment of partnership debts, and if any remains, then to the partners, in proportion to their interests. Though the creditors of the firm have no lien, as such, upon the partnership property, they have a right in equity to follow it, as a trust, into the possession of all persons, who have not a superior title (2 Story Eq., § 1253; Buchan v. Sumner, 2 Barb. Ch., 197). The enforcement of trusts is a copious source of the jurisdiction of courts of equity, and when the property of any debtor is vested in a trustee or trustees, a court of equity has jurisdiction to compel the execution of the trust.

As, under our Revised Statutes, in relation to attachments against absconding, concealed and non-resident debtors, and assignments made under the statutes in relation to insolvents, the property of the debtor and the insolvent became vested in trustees for the benefit of creditors, I have always supposed that the provisions which those statutes contain (2 R. S., p. 45, § 19 et seq.) for settling controversies arising between the trustees and other persons in the settlement of any demands against the debtor, or of debts due to his estate, by a reference to three disinterested persons, to be agreed upon, and in case such other person would not agree or consent, then to be appointed in the manner specified, upon the application of the trustees, with power to hear and determine the controversy, and concluding the rights of the parties, originated in the principles of equity to which I have referred, and that they were not obnoxious to the objection that they were in conflict with the provisions of the Constitution of 1821, touching the right of trial by jury. They were taken substantially from the Revised Laws of 1813, v. 1, p. 166, and will be found also, in substance), in an act passed in April, 1786, entitled “an act for relief,, against absconding and absent debtors.” (1 Green., Statutes, 221, § 16.) The property of the absconding debtor being seized and transferred to trustees for the benefit of creditors, and the property of insolvents, being transferred, either voluntarily or coercively, for the like purpose, it became a trust property or a trust fund for the payment of debts over which a court of equity had jurisdiction; and the legislature provided a cheap and expeditious'mode of realizing the fund and settling controversies in relation to it, without action, either at law or ,in equity.

I confess I should find more difficulty in sustaining the provisions in question, in the Revised Statutes, than those in the act of 1862, now under consideration. The former embraced controversies between the trustees and persons who were mere creditors or debtors of the insolvent, or absconding debtor, whereas the act of 1862, so far as it affects the present case, may be confined to those persons who were members of the insolvent corporation. And the object of the action by the. receiver, who is the trustee for the creditors, is to collect a debt due from such stockholder. The case is clearly one in which the creditors have an equitable lien, and from which an implied trust, in their behalf, arises; and the legislature could-provide for the manner of enforcing the trust, without a resort to an action at law or in equity, without infringing the provision of the Constitution, relating to trial by jury. I think, upon the question we are considering, the decision in The matter of the Empire City Bank (18 N. Y., 199-211), is in point. That case arose under the act of 1849, to enforce the '.responsibilities of stockholders in certain banking corporations, and a referee was appointed to ascertain and report such liabilities. The stockholder was deprived of a trial by jury

Another objection is made to the constitutionality of the act of 1862, viz.: that it created a new tribunal or court, not authorized by the sixth article of the Constitution. It is an error, I think, to regard the referee as a court. The proceedings were instituted before the Supreme Court, by a notice, in pursuance of the statute, and the referee was appointed by the court or a justice thereof; and by the statute a judgment of the court was to be, and has been, entered upon his report, which, upon appeal from the judgment to. the general term, could be set aside. The proceeding, under the statute, is in the Supreme Court, and the judgment is a judgment of the court. The judgment should be affirmed.

Denio, Ch. J.

The judgment appealed from was rendered upon the report of a referee appointed on the application of the plaintiff and without the assent of the defendants, pursuant to the act entitled “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies,” passed April 21, 1862. (Sess. Laws, p. 743.) The defendants insist that the mode of trial contemplated by that act, and which was adopted in this case, was a violation of the constitutional provision declaring that “the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.” (Art. 1, § 2.) Actions upon contracts for the payment of money were generally cognizable in the courts of common law, before the jurisdiction of law and equity was blended; and the trial of questions of fact arising in such actions was by jury, except in some special cases where, from peculiar circumstances, referees were allowed to take the place of a jury. An action on a promissory note must generally be tried by jury, if any issue of fact be joined in such action; and this was so whether the holdqr of the note was the original payee or had acquired his right to it by transfer, or by operation of law. But long before the adoption of the Constitution a practice had grown up of winding up and settling the affairs of insolvent estates and insolvent corporations, and of estates in the hands of trustees, by suits in equity; and another practice had, under legislative authority, prevailed to a considerable extent, of settling such estates by subjecting the demands in favor of or against them to adjudication by referees appointed by mutual consent, or if such consent could not be obtained, by an appointment of such referees on the application of one of the parties to a court or judge. For instance: the trustees of the estates of insolvent debtors, under any of the forms of insolvency regulated by statute, might apply to the officer who appointed them, or to any officer having, a like authority, to appoint referees to adjudicate upon any controversy between them, and any person who had a claim against the-estate, or any person against whom they, as trustees, made a claim, and the referees were to possess the same powers- as referees appointed in personal actions. (2 R. S., pp. 44, 45, §§ 19 to 25.) The estates of insolvent corporations were settled and the liabilities of the stockholders were enforced by summary proceedings, without a jury trial, as was explained in The matter of the Empire Bank (18 N. Y., 199.) In this class oleases, causes of action to which a jury trial was appropriate, and which, if unconnected with an insolvent estate, could not be constitutionally enforced in any other way, were subject to a summary mode of adjudication. The motive for this departure from the course of the common law doubtless was, the avoiding of a multiplicity of regular actions, and the policy of a speedy adjustment of transactions in which a large number of persons were interested. The present case does not fall within any of the particular provisions of this kind which had been enacted and were in existence before the formation of the Constitution. But the Constitution does not refer to particular cases, but to classes of cases. I am of opinion that statutes of the same general character and based upon the same motives of policy with those which h,ave been mentioned, may be passed without a violation of the constitutional provision. In the case under consideration, there was a class of corpora-, tions which had or might become insolvent, of which there were many creditors, and .many persons, namely, the premium note makers, occupying a position bearing some analogy to ordinary debtors, and a. strong analogy to stockholders. They were liable to pay a proportion, or the whole amount of their deposit notes as the state of the indebtedness, and of the other assets, might require.

Existing laws had, prior to the act which is now challenged, and prior to the Constitution, authorized the appointment of a receiver of insolvent corporations, to take the ■ assets into his hands, and enforce the liabilities of the parties bound to contribute. I am of opinion that the statute in question is in pari materia with those which have been mentioned; that it was founded upon the same motives of policy, and was designed to produce a similar result, namely, a speedy and inexpensive liquidation of the affairs of the insolvent insurance company. Hence, it was a case in which the trial by jury had not been invariably in use before the adoption of the Constitution, and such a mode of trial was not, therefore, guaranteed" by its provisions.

. Bút I am of opinion that the plaintiff should have been required to give some evidence of the existence of losses, which rendered an assessment proper. The point was expressly taken by the defendants’ counsel, “that there was no legal proof of the occurrence of any losses for which any assessment could b.e made, nor for which the said note was liable to contribute.” The note is conceded not to have been given as a contribution to capital, like the notes required upon the formation of a mutual insurance company; but it is agreed that it was. virtually an undertaking to pay a jusffproportion of all the losses which should occur during the time the maker remained an insured party, and a just proportion of the expenses. The act of 1852 (ch. 71) authorizes a receiver, under the sanction of the court,- to make assessments, but does not declare their effect. The directors, while their duties continue, and the receiver, when he has, for some purposes, taken their place, are naturally cognizant of the demands which exist against the institution. They have in their hands all the deposit notes. It was the duty of the directors, and it is the duty of the receiver, under the act of 1852, to make an assessment, that is, a statement of the amount which each of the makers ought to pay towards the satisfaction of the debts. But neither of them, I think, have the power, by this ex parte proceeding, to determine the amount of the debts and liabilities existing against the corporation. It would be, to say the least, very unusual for the legislature to make a provision, that a conditional contract, such as these premium notes are, could be established to be absolute as to the whole or part of the amount conditionally agreed to be paid, by a proceeding toyrhich the person contracting was not a party, nor entitled to be heard. In this case the only evidence of losses was the ex parte affidavit of the receiver, which was not competent evidence of the matter stated against the makers of the notes. I do not say that, upon the trial of an action on such a note, the plaintiff would be bound to show the existence of -the several fires by which the several insured parties had sustained losses. Evidence which would have concluded the company while it was engaged in its proper business, or notice of a loss and its settlement and allowance, or a judgment recovered against the company would have been Sufficient. But a mere list, made out by the receiver, though supported by his exporte affidavit, is clearly insufficient. The 10th section of the Jefferson County Act, which was the pattern of' many mutual companies, explains my idea of what was necessary to be proved. “The directors,” it is there said, “after receiving notice of any loss or damage by fire, &c., and ascer taining the same, or after the rendition of any judgment, &c., against the company for loss or damage,” are to ■ “ settle and ‘ determine the sums to be paid by the several members thereof as their respective proportion of such loss,” &c. This is what is meant by an assessment. (Laws 1836, ch. 61.)

The foregoing is substantially the view taken of the act of 1852 by the Supreme Court and by this court. (Thomas v. Whalen, 31 Barb., 172; Bangs v. Duckenfield, 18 N. Y., 592); and but for the circumstance I am about to state, I should think the judgment' ought to be reversed upon this point. But it has been pointed out, on consultation, that a settled Case in a suit of the present plaintiffs against one Smith Shoemaker was produced on' the trial, and that there is an agreement contained in the Case in the present action, that such former case should be made a part of the present one. That former case has not been printed or produced to us, and as it may contain .the evidence which has been supposed to be wanting, I agree that the exception which assumes that there was no proof of losses cannot be sustained.

The judgment must, therefore, be affirmed.

All the judges concurring, Judgment affirmed.


author: Davies, J.

text:
    Miner v. The President and Trustees of the Village of Fredonia.
    The residence of an individual banker, doing business under the general banking law is, for the purposes of the taxation of his banking capital, in the town or ward specified as the location' of his banking office, in the certificate required by the statute.
    The actual location of his banking office is to be assumed to have been mentioned in the certificate, and, consequently, to be the place of his resi- , dence for the purpose of taxation, where the certificate itself is not in evidence.
    Appeal from the Supreme Court. The parties submitted an agreed statement of facts under section 372 of the Code. From this it appeared that the plaintiff was an individual banker, who for several years previous to March 18, 1857, had a banking office and carried on the business of banking under the general law, at the village of Fredonia, where up to that date he resided with his family. He then removed his family and his personal residence to the village of Dunkirk, distant about three miles from Fredonia, but continued his banking office at the latter place, and came there daily for the purpose of transacting his banking business. Shortly after-wards he was assessed towards the payment of a tax for village purposes in Fredonia, upon the sum of $64,000, the amount of his banking capital, as appearing upon his reports to the bank department. He paid the tax under protest and an agreement that the question of his liability should be submitted to the Supreme Court.
    The court, at general term in the 8th district, held, that the assessment was valid, and gave judgment for the defendants. The plaintiff appealed to this court.

      Chauncey Tucker, for the appellant.

      Francis Kernan, for the respondents.
   Davies, J.

No complaint is made of the principle of the > assessment. It is not disputed that if the appellant was legally taxable by the respondents, in respect of his banking capital, i the assessment and tax were made and levied upon a proper j basis and just valuation. Neither is it claimed, in behalf of j the respondents, that the appellant was taxable for his personal j property generally, by the authorities of the village of Fredonia, for village purposes. At the time of the assessment, and from that time until the submission of this action, the appellant was an actual inhabitant of Dunkirk, another village in the immediate vicinity of Fredonia. Every person must j be assessed in the town or ward where he resides when the : assessment is made, for all personal estate owned by him, and this irrespective of its actual situs if it is within the State. (1 R. S., 5th ed., p. 908, § 5; People v. Supervisors of Chenango County, 1 Kern., 563; People v. Commissioners of Taxes, 23 N. Y., 224.) There is nothing in the act incorporating the village of Fredonia making any other or different test of liability j to taxation for personalty than actual residence. Whenever j a tax is voted, the assessors are required to make an assessment of all the property, real and personal, in the village, and when the assessment has been corrected as prescribed by the act, j the trustees are directed to make out a rate bill or tax list, j apportioning the sum to be raised upon the taxable inhabit- j ants of the village in proportion to their several assessments. • j (Laws of 1829, p. 535, §§ 11, 12.) Reference is made to other statutes for the detail in the assessment and collection of taxes for village purposes. There is no indication of a purpose on the part of the legislature to subject citizens of the State, not inhabitants of the village, to taxation for personal property generally, being at the time for any reason within the bounds of the village. In such cases the maxim mobilia personam sequuntur, would apply, and by fiction of law the situs of the property would be the personal residence of the owner. This is essential to certainty of taxation and to prevent a conflict of jurisdiction between the different local boards of assessment aid taxation in the State. The question then is, whether special legislation touching capital used by individual bankers for banking purposes, has given personal property and funds thus invested and used a situs for the purpose of taxation, distinct from the residence of the banker, when the business is carried on in a city, town or village other than that in which the banker resides. The assessment and taxation of individual bankers, as well as banking associations, in respect of their banking capital, are governed by special statutes applicable only to property thus employed, and not by the general statutes of the State regulating the assessment and taxation of personal property ; arid the business of banking, whether carried on by individuals or by associations, is subject to restrictions and regulations peculiar to itself, and which are not applicable to any other branch of business. So far as the rules and regulations prescribed for the government of banking associations can apply to individual bankers, they are made applicable by statute, and both, so far as practicable, are subject to the same statutory regulations. Both are taxable for the full amount of actual capital paid in, or secured to be paid in, as such capital by them severally, at the market value of such securities, without any reduction for the debts of such individual banker or banking association. (Laws of 1847, ch, 419, § 4.) While the individual banker is in no sense a corporation having none of the incidents or powers of a corporation, his business is by law put upon the same footing in the main as that of banking associations incorporated under the general banking law, and the capital set apart by him for banking purposes is treated the same as if it constituted capital stock to the same amount in an incorporated banking association. In a sense, the bank, the banking business and banking capital of an individual banker is required to have, and is regarded as having, a local habitation, so to speak, a fixed situs, such as is nowhere given to personal property generally, or to individual business of any other nature; and this locality is of the same character as that which is given by law to a banking association and its business and capital. The deposit of securities with the superintendent of the banking department by each, is subject to the same general regulations, and the minimum amount of the deposit by each is fixed. (2 R. S., 5th ed., p. 552.) Individual bankers, as well as banking associations, are required to make report of the names of those interested in the business, and also to file a certificate of his residence, which must also be his place of business, and of any change of residence. (Id., p. 553, §§ 158-161; p. 559, §§ 187, 188; p. 563, § 207.) Both are required to make the same annual report and are subject to the same visitation. (Id., p. 561, § 200, etseq.; p. 564, §§ 213, 214.) Both are subject to the same restrictions and penalties in respect of the issue . of bills or notes and other matters touching their business and its relinquishment. (Id., 554, § 163; p. 563, § 200; p. 565, § 216 et seq.) Individual bankers, as well as banking associations, are made “banks of discount and deposit” (Id., p. 564) § 210), and ar.e required to keep offices for redemption in New York or Albany (id., p. 570, § 233), &c., &c.

It will be seen upon an examination of the several statutes, j that the legislature have regulated banking as a business, distinguishable and distinct from every other business, and have regarded individual bankers and banking associations, with their respective banking capital, in the same light, and placed all upon the same footing. • A banking association has a situs, and is an inhabitant of the city, town or ward in which its I office of discount and deposit is located, irrespective of the j residence of the associates, and is taxable in that place. The j policy of the Jaw would apply the same rule to the banks of Í individual bankers, and make them local and subject to local ; assessment and taxation, irrespective of the residence'of the banker or his associates.' The statutes do, as we have seen, take from the banking capital much of its movable character, and discriminate it from the person of the owner. It is, so far as the public is concerned, entirely separated and distinguished from the other property of the same individual, and a new character given to it. The third section of chapter. 281 of the laws of 1844, and section five of chapter 242 of the laws of 1854 (2 R. S., 5th ed., 553), require every individual banker to file with the superintendent of the banking department, a certificate, stating the town, city or village in which he resides, and a like certificate in case of any change of residence, under a penalty of one thousand dollars, and declares it unlawful for such individual bankers to transact business under the banking act in any other place than that in which he resides. It is not stated, and cannot be assumed, that the appellant is doing business against law, and incurring a penalty for a violation of the law. It is agreed that he had, for more than seven years, had a bank of discount, deposit and circulation in the village of Fredonia, at and by means of which, he carried on his business as an individual banker, and that from the time of the commencement of his business up to within a few days or weeks of the assessment complained of, that village had been the place of his individual residence. It will be presumed that the proper certificate of residence was filed as required by law, and that the business of the appellant was entirely lawful; •for it is expressly admitted to have been in pursuance of the general banking laws of the State. It is not claimed that any certificate of a change of residence has been filed, and the banking office or business has not been removed, and the plaintiff, it seems to me, is estopped, quoad the public, from alleging that his residence is not in the same village in which he continues to carry on his banking business, and where it was from the first. His business cannot lawfully be transacted in any other place. That which he cannot do without violating a public statute, and which is expressly declared to be unlawful, he ought not to be heard to allege, in order to escape taxation. The defendants and their assessors were justified in assuming that he was lawfully transacting business as an individual banker, in Fredonia. In order to do that, he was necessarily a resident of the village, and taxable not only in respect of his banking capital, but of all his personal property, certainly for the former.

So far as appears from the agreed statement of facts, the pretended change of residence was entirely unknown or unsuspected by the village officers until after the actual levy of the tax. No notice was given to the assessors or claim made to them that the appellant was not a taxable inhabitant of the village. A change of residence as a banker can only be evidenced by a certificate of the fact, or rather that is necessary to a complete change, and is a part of the evidence; and the place of business must change with the change of residence. The change of residence may have been commenced by the appellant, but it has not been completed; and until it is perfect, he is taxable as a banker in Fredonia, at least until his banking office is removed.

But upon a proper construction of the statute, and without a resort to the doctrine of estoppel, I am of opinion that the tax complained of was properly levied. An individual banker may have any number of associates, and such associates are general partners with him. (Laws, 1854, ch. 242, §§ 6,7.) These partners are individually liable with the banker for all debts and obligations made or created by him in the business. Nevertheless, the public authorities deal with the individual banker as if he were the only person concerned in the business, and he is assessed for the banking capital as if he were the sole owner. Although he has not corporate powers, he has a representative capacity. The residence of the general partners does not control the place of business. That is fixed in reference to the residence of the person known as “ the individual banker,” that is, of the one who manages and in whose name the business is transacted, and with whom the public have to do. That residence is not a corporate residence which would be the recognized habitation for legal purposes of an ideal body, but is a quasi official or representative residence, the dwelling-place for legal and statutory purposes, not so much of the individual as the individual banker. A'corporation is an inhabitant of the town or city in which its charter locates it or in which its principal place of business is. The statute looks to a similar location of the individual banker as such, and therefore the banker, when he locates his banking office, selects his residence as a banker in that place. His individual dwelling and that of his family, his lodging place and his eating place, and his residence as an elector may be anywhere else; but as a banker; exercising to some extent a franchise and employing his capital and funds in the business of banking under the statutes of the State, his residence is with his banking office and in the place named in his certificate. The public want to know his residence as a banker, and that they learn from his certificate and from knowing where his place of business as such is-. The legal residence of a banking corporation — an invisible, intangible thing — is at its banking office; the individual banker has the same residence. Section 3 of chapter 281 of the Laws of 1844, requires the individual banker to certify his residence, and confines him to that locality for the transaction of his business. To regard • this as referring to the individual residence of the banker, rather than his business residence, would compel all the individual bankers of Wall street to reside in that vicinity, and would exclude all those living in the upper and healthier parts of the city from their business; and in every city every banker must reside in the same ward in which he would have his place of business. This would be unreasonable, if not impracticable, and cannot be supposed to have been intended by the legislature, and this absurdity will not result if the statute is -read as having reference to the business residence of the individual. That nothing more is intended by the statute than a business location, is evident from subsequent legislation.

Section 1 of chapter 340 of the laws of 1848 (2 R. S., 5th ed., 568, § 210), which declares all banking associations and individual banks under the provisions of the general banking law to be banks of discount, deposit and circulation, directs that the usual banking business of each “ shall be transacted at the place where such banking association or individual banker shall be located agreeably to the location specified in the certificate directed to be made by law, &e.” By the act of 1857, ch. 189, § 7 (S. L., p. 438), an individual banker may transfer to his partner his stocks, securities and banking business and privileges, and, of necessity, by implication, the purchasing partner may continue the business in the same location. Whatever may be his actual dwelling place, his business resi dence, his location as a banker is that of the bank which he has purchased. So the business óf an individual banker" may descend or be bequeathed and the same statute in terms authorizes the business to be continued by the legatee or heirs at ■ law without imposing actual residence in the town or ward as a condition. They assume the business location by accepting the legacy or taking as next of kin or heir at law. The business residence, the location of the appellant as a banker, being fixed by his certificate originally filed, or, if no certificate was filed, by his banking office or the place of his business, it follows that all assessments and taxes against him, in respect of his banking capital, are properly made in the place thus fixed ás his residence and could not properly be made elsewhere.

Upon this construction the law will be relieved of all doubt and uncertainty, and the duties of assessors and others charged with the levying of taxes, will be comparatively easy of execution, while upon any other, there will be almost necessarily a conflict of jurisdiction between the assessing boards of different localities, and large amounts of very productive taxable property may wholly escape taxation, a thing not desirable at this time.

The judgment must be affirmed.

Denio, Ch. J., and Emott, J., dissented; Rosekbans, J., was for affirmance, not on the ground that the statute fixed the residence of the banker in Fredonia, but because, as he construed the Case, it was not shown that he resided elsewhere.

Judgment affirmed.