author: Ruger, Ch. J.

text:
    Cornelia Gilman, Resp’t, v. Preble Tucker, App’lt.

      tourt of Appeals,

      Filed October 6, 1891.)

    Constitutional law—Execution—Code Civ. Pro., § 1440—Laws 1881, chap. 681.
    Section 1440 of the Code, as amended by Laws 1881, chap. 681, is unconstitutional, as it deprives an owner of his property without due process of law, and assumes to nullify a final judgment establishing the owner’s right to the premises in dispute and awardinghim a sum of money as costs.
    Appeal from order of the general term of the Mew York superior court, affirming an order of special term, denying defendant’s motion to set aside and vacate judgment

      Esek Cowen and Charles J. Hardy, for app’lt; Charles E. Hughes, for resp’t.

       Affirming 36 N. Y. State Rep., 1034.

   Ruger, Ch. J.

This appeal involves the construction and constitutionality of § 1440 of the Code of Civil Procedure as amended by chapter 681 of the Laws of 1881, relating to the sale, redemption and conveyance of real property sold on execution.

The questions arise upon the affirmance by the general term of an order of the special term, denying the defendant’s motion to set aside and vacate a judgment entered herein for the plaintiff. Mo claim was made but that the judgment was regular and authorized by the evidence in the case, or that there was any statute or rule of law which required the court to set aside such judgment The purposes of the act referred to, if valid, do not require an order of the court to render them effective. The contention is, that the defendant is entitled to the relief asked for, because the plaintiff did not, within twenty days after the recovery of the judgment, make certain payments to the defendant, in default of which the section referred to declares the judgment to be of “no force or effect” Even if it be conceded that the provisions of the Code are valid, it does not follow that the defendant is entitled, as of course, to the relief demanded. It is not required by the language of the statute, and the court might well have said, in the exercise of its discretion, that the defendant should be left to the remedies which the statute gave him, and that it would not determine the controversy in a summary way upon motion. But we are disinclined to dispose of the appeal on this point, - as important questions are raised by the case, which, in the interest of justice, require an early disposition.

The evidence in the case shows that previous to the commencement of this action the defendant had, as a subsequent judgment creditor of the plaintiff, acquired the right to a deed from the sheriff, by the redemption from the purchaser upon an execution sale of a house and lot in New York belonging to the plaintiff; and she, believing the sale to have been unauthorized and illegal, brought this action to compel a determination of the defendant’s claim under such redemption. In answer to the action, the defendant set up title in himself through the proceedings to redeem from the former judgment creditor who had bid it in on ,an execution sale upon a judgment in his favor against the plaintiff. The question litigated upon the trial was as to the validity of the execution upon which such sale was had. The trial court found that it was “ a void process, and that, therefore, the sale under that void process was also void and of no effect, and, therefore, the defendant Tucker could and did take no valid title by reason of his redemption from a sale which was void.” Place v. Riley, 98 N. Y., 1. Judgment was, therefore, rendered in favor of this plaintiff, with costs, and that judgment was affirmed not only by the general term, but also by this court, with costs. It is now claimed that this judgment is ineffective, because the plaintiff did not, within twenty days after its recovery, in compliance with § 1440, pay to the defendant the moneys required to be paid by that section. The section, as amended, reads as follows: “The right and title of the judgment debtor, or of a person holding under him, or deriving title through him, to real property, sold by virtue of an execution, is not divested by the sale until the expiration of the period within which it can be redeemed, as prescribed in this article and the execution of the sheriff’s deed. But ■ if the property is not redeemed and a deed is executed in pursuance of the sale, th'e grantee in the deed is deemed to have been vested with the legal estate from the time of the sale.” Then follows the amendment: “And if the title of such grantee, or his assignees, is adjudged, for any reason or cause whatsoever, to be null and void in any action for that purpose brought by the judgment debtor, or his assignees, such judgment shall have no force or effect unless, within twenty days after the entry of such judgment, the plaintiff shall pay to such grantee, or his assignees, the sum of money which was paid upon the sale, with interest from the time of the sale as prescribed in this article, including the costs and expenses of defendant in defending the action in which such judgment was recovered, to be adjusted by a judge of the court in which said action was brought; and in the event of plaintiff’s failure to pay such purchase money and expenses within the time aforesaid, said title- shall be valid in said grantee.” It was also provided that if, in any pending action to recover such property, an appeal had been taken, the plaintiff should have twenty days from final judgment in his favor to make the payments required.

In considering the meaning and effect of the amendatory act, it is desirable to have in mind the previous condition of the law on the subject. The Code of Civil Procedure, which was a substantial ré-inaetment. of the provisions of the Revised Statutes, in respect to this subject, provided that on a sale of lands on execution the debtor’s title should not be divested until fifteen months after the sale. This period was allowed him and his judgment and mortgage creditors to enable them to redeem from the sale. The first year was allowed to the debtor and the three succeeding months to the creditors entitled to the benefit of the redeeming statute. On the expiration of the fifteen months, in case there was no redemption by the owner, the sheriff was bound to execute a deed of the premises to the purchaser on the sale, or to his "assignees, or to the person entitled thereto under the provisions of the statutes relating to redemption. Section 1471. Upon a redemption by the judgment debtor, or his heirs, executors or assignees, the sale and certificates thereof become null and void and no conveyance therefore was required to be executed as the judgment became satisfied to the extent of the sum collected and applied on the execution, and the title of the property sold remained in the judgment debtor. Section 1448. In case of a redemption by a judgment or mortgage creditor, he was required not only to pay the amount specified by the statute, to the person from whom he redeemed, but also to execute a satisfaction of his judgment or mortgage, stating that the redemption satisfies the judgment or mortgage in full, or to a specified amount. Section 1463. The purchaser of real property, sold by virtue of an execution, who has been evicted from the possession thereof, or against whom judgment is rendered in an action to recover the same, in consequence, first, of any irregularity in the proceedings concerning the sale, or, second, of the judgment, upon which the execution was issued, being vacated or reversed, or set aside for irregularity or error in fact, may recover the purchase money paid by him, with interest, from the person for whose benefit the property was sold. Section 1479.' In case of a sale, upon a judgment based upon an “irregularity in the proceedings concerning the sale,” the judgment, under which the sale was made, is revived and becomes valid to enable the judgment creditor to collect the sum paid on the sale, with interest Section 1480. It is also provided that a judgment creditor, who completes proceedings for redemption acquires all the right, title and interest in the property which the purchaser acquired by the sale. Section 1471. The protection which this scheme affords persons who have purchased land on an illegal sale, is apparently sufficient for all of the requirements of justice or equity, independent of the amended section. Thus, when such sale is declared void, the security of the judgment creditor is restored for the purpose of enabling him to reimburse himself for the moneys paid on the sale, and a purchaser, on redemption, whose title is defeated for any of the causes specified, is authorized to recover the purchase money paid by him from the judgment creditor,'or those who represent him.

These provisions gave an adequate and sufficient remedy to all of the parties interested where there had been an illegal sale on execution. The judgment creditor lost no rights by making such sale and the innocent purchaser and his assignees were protected, as well where the judgment was founded upon irregularities in the proceedings concerning the sale, as when it had been reversed or vacated.

There could, of course, be no just foundation for a claim by the judgment creditor to be reimbursed by any one when his judgment had, for any reason, been reversed or set aside; because, in that event, his claim would itself be extinguished and he would have suffered no loss.

A point is made by the respondent upon the language of the act, that the defendant, being a redeeming creditor, does not come within its terms. By the express language of the act, its provisions would seem to be operative only where the land had not been redeemed. There can be no question, we think, but that, under the language of the statute, the land had, within its meaning, been redeemed, and the defendant was, therefore, precluded from availing himself of its benefits. If this should be held to be the true construction of the act, its operation would then be confined to those who purchased on the sale, and their assignees alone, and would thus exclude the defendant from the benefit of the act. It is contended, however, by the appellant, that a re-. deeming creditor comes within the spirit of the act and should, therefore, be held to be within its meaning.

We should be reluctant, under any circumstances, to extend by construction the scope and application of a statute which seems to be so uncalled for and inequitable as this, and particularly so ‘when the redeeming creditor has an adequate remedy for any loss which he may have incurred; but where a party is excluded from the benefit of an act by its express language the court is not at liberty to extend its operation by construction for the purpose of bringing him within its spirit. But, however this may be, we think that it is due to the gravity and importance of the questions raised that we should base our decision upon those more important points presented by the objections to tie validity of the amendment.

It is to be observed, in the first place, that the act is predicated upon the existence of a final judgment determining not only that the property to be affected has been illegally sold, but that it still belongs to the plaintiff therein and .that the defendant has no legal claim thereto, but also awards to the plaintiff the costs of the actio.n and, impliedly, holds that defendant is not entitled to such costs. The act contains, therefore, the most ample concession that the party against whose rights it is aimed is, in law, the absolute owner of the property to be affected by the amendment and is a judgment creditor of the defendant to the extent of the costs included in the judgment It then proceeds to declare how he may be divested of this title and property, and provides that, after recovering a judgment awarding him the title unless he pays, within a limited time, to the defendant' an arbitrary sum, his property shall, by force of the act alone, be transferred to his adversary.

The sole aim of the statute thus seems to be to effect a change of title and to wrest from one person the property which has been finally adjudged to be his and vest it in another by mere force of the legislative will No obligation to make the payments referred to existed at law and none was created by the act, but it simply declared that unless they are made the defaulting party shall forfeit his property and it shall be transferred to another who had neither legal or equitable claim to it. In effect it reverses the judgment and gives to one that which the courts have deliberately adjudged belongs to another.

The plaintiff contends that the statute is unconstitutional, because it deprives the owner of his property without due process of law, and we are of the opinion that the claim is well founded. It cannot be the subject of doubt that an act of the legislature, which provides for an involuntary transfer of property from one person to another, without due process of law, whether with or without compensation, violates the principles of the fundamental law, whatever may be the pretext upon which it is founded. It was said by Justice Jewett, in Embury v. Conner, 3 N. Y., 511, after a review of the authorities, that “I think these decisions should be regarded as having settled the point that a statute is unconstitutional and void which authorizes the transfer of one man’s property to another without the consent of the owner, although compensation be made.” And it is laid down in Cooley’s Constitutional Limitations, at page 444, as an elementary principle, that a party cannot, “by his misconduct, so forfeit a right that it may be taken from him without judicial proceedings in which a forfeiture shall be declared in due form. Forfeiture of rights and properties cannot be adjudged by legislative, acts and confiscation, without a judicial hearing after due notice, would be void as not being due process of law.”

The act comes clearly within the spirit of our decision in Cromwell v. MacLean, 123 N. Y., 474 ; 34 N. Y. State Rep., 85, where Judge Peckham, in relation to a tax sale, says : “ Holding, as we must, that.no title or interest in fact passed to the pur-_ chaser at these tax sales, and that the original owner, therefore," still retained his title, the effect of the act in question, if valid, is by legislative fiat to transfer the title of the property of Edward C. Wilson, as trustee, to the lessees under these invalid leases. * * * Has the legislature of this state the right to take the property of A and transfer it to B., under the guise of confirming sales made of such land in invitum; but by which no title, in factor in law, passed from the owner to the purchaser? The statement of the question should be its best answer. The property thus taken is not taken by due process of law. * * * What difference does it make to say that the legislature is acting only in a way of validating proceedings to collect a tax, which, in justice, the owner of the land ought to pay ? The answer is, that the proceedings have been so fatally defective that no title has passed and the owner has his title to his property the same as if no proceedings had been taken. Where is the authority in such case for the legislature to itself transfer the title of his property to someone else ”

It is obvious that if the legislature could not directly confirm such a sale, the court ought not to strain to discover such an illegal intention in the words of an act, whose motives and purposes are ambiguous and indefinita

Tested by these rules we are unable to see how this act can be supported and at the same time effect be given to the constitutional guaranty. It was said by Judge Earl in Stuart v. Palmer, 74 N. Y., 183, that “ the constitutional validity of a law is to be tested, not by what has been done under it, but by what may, by its authority, be done.”

A consideration of the results which may be reached through the provisions of this act, when construed according to the plain meaning of its language, demonstrates the impossibility of reconciling its provisions with the requirements of the fundamental law. The obvious intention of the act is to take away from the owner all remedy for the recovery of his property, except upon the payment by him to his adversary of a sum of money which must frequently be greater than the value of the property itself. If he remains in possession of the property he is deprived of any remedy to protect his possession, and if his adversary has succeeded in obtaining possession he is deprived of any remedy to recover it, except upon the condition that he pays as much, or more, than it is probably worth. An owner may, therefore, under this law, be stripped of his property under a void proceeding; be turned out of possession and ¿d.enied. any affirmative relief in the courts, unless upon the condition that he pays for the property its value, as determined by a judicial sale, and in addition thereto a sum for costs and expenses, the amount of which he has no means of ascertaining and which may also exceed the value of the property in litigation. A more effectual scheme to deprive an owner of his property could hardly be conceived. Whether he abandons it to the wrongdoer or elects to seek his remedy in the courts, the property as a subject of value has passed from him irrecoverably. It is not claimed by the appellant that the change of title, intended to be effected by this statute, is to be produced by any process of law, or as the result of any judicial proceeding whatever ; and the statute, in plain language, declares that it shall take place as a consequence of the owner’s successful attempt to establish his right through' any action at law, upon a failure to make the payments required. The statute is intended to execute itself and pass the title upon the expiration of the 'time limited by the statute. One of the arguments by which the statute is attempted to be sustained is the claim that the legislature has, in effect, required the owner to repay certain sums of money which had theretofore been appropriated to her use, and, inasmuch as she has had the benefit of the amount bid on the sale, it is argued that it is in accordance with equitable rules that she should be required to repay such sums before recovering back her property. We do not think it is competent for the legislature to deny, for any cause, a party, who has been illegally deprived of his property, access to the constitutional courts of the state for relief.'

íf, as we have seen, he is denied all remedy for the wrong inflieted upon him, the deprivation of his property becomes just as -effectual as though it had been taken from him by direct legislative enactment But, however this may be, the act does not seem to furnish any foundation for the argument The plaintiff has never, in fact, been relieved from her liability to pay the original judgment and has not derived any benefit from the attempted sale. That liability was revived against her, in favor of the judgment creditor, when she recovered judgment for the land, and no provision is made by the act for the satisfaction of that lien, although the payment required by the statute be actually made by her. The lien is given to one party and the payment is required to be made to another, and, in the absence of any provision in the statute making such payment a satisfaction, it is difficult to see why the lien does not remain and the judgment stand unsatisfied.

The payment required was also unnecessary for the protection of the redeeming creditor, as he had his right of action to recover back the money paid by him from the person to whom it was paid. The section, as amended, thus secures to the judgment creditor not only a lien on the land for the original debt, but leaves him in possession of an equivalent sum received from the redeeming creditor, and the redeeming creditor is entitled to receive not only the money required to be paid under this statute by the owner, but also acquires a cause of action against the judgment creditor to recover back the money expended by him on redemption. Both of these parties, therefore, have, by this act, double security for the same debt and no provision is made by the statute that the payment required to be made by the owner shall satisfy any of these liabilities. It would, therefore, seem that, in fact, no benefit accrued to the plaintiff from the moneys paid on the sale, and no pretense was left for the requirement made by the statute.

But a further answer to the claim is found in the fact that the statute proceeds upon no such theory, and purports to make no such application. Ho reference is made in it to the liabilities of the judgment debtor, or provision made for their satisfaction, and the sum required to be paid by her has no reference to the existence of any lien or debt, or its amount Indeed, it requires the payment as well when it has been judicially pronounced that there is no debt as when one may, in fact, exist

The act makes no distinction between cases where the judgment upon which the sale was made has been reversed and set aside, and those in which the process alone has been adjudged to be void. It wholly ignores any such distinction and requires the payment to be made, as well where no claim ever existed, as where a legal claim has been illegally attempted to be enforced. It furnishes no argument in favor of the legality of this act to say that some of the consequences following its enactment could, under special conditions, have been constitutionally produced, if provided for in some other way. The broad question here is, whether this enactment, construed according to its plain meaning and intent, enables one person to acquire the property of another against his will, except by due process of law. If it does the courts must condemn it as violative of the fundamental law. The vicious purpose of the act is so thoroughly interwoven with the whole scheme of the enactment as to render it impossible to eradicate its objectionable features without reconstructing the entire section. It is not, therefore, a case where any part of the act can be supported.

We also think the act violates the constitutional guaranty; because it assumes to nullify a final and unimpeachable judgment, not only establishing the plaintiff's right to the premises in dispute, but also awarding him a sum of money as costs. After rendition, this judgment became an evidence of title and could not, be taken from the plaintiff without destroying one of the instrumentalities by which her title, was manifested. A statute which assumes to destroy or nullify a party’s muniments of title is just as effective in depriving him of his property as one which bestows it directly upon another. Matter of Jacobs, 98 N. Y., 98, and authorities there cited. In the one case it despoils the owner directly, and in the other renders him defenseless against any assault upon his property. Authority which permits a party to be deprived of his property by indirection is as much within the meaning and spirit of the constitutional provision as where it attempts to .do the same thing directly. Even assuming that it might be lawful for the legislature to impose a condition upon the right of a party to maintain a particular action to recover real property, no such case is here provided for.

.This statute makes any action at law to establish his right subject to its provisions, and thus deprives him of all remedy for the wrong done him. It not only does this, but it attempts to reverse a judgment and give to the defeated party the fruits of a recovery awarded to another. We must bear in mind that a judgment has been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court and were thereby placed beyond the reach of legislative power to affect

We have been referred to no authority which justifies legislation taking such rights away arbitrarily, and we know of no theory upon which it can be sustained. Instances where land subject to a lien for taxes has been sold therefor, and the owner has been required to pay the taxes as a condition of maintaining an action to recover-the land, or the borrower of money, at usurious rates, is required to repay the sum equitably due before maintaining a suit in equity to enforce a forfeiture of the securities held by the creditor, are, obviously, not analogous to the case under consideration.

We are, therefore, of the opinion that the repugnancy between the law and the constitutional rights of the citizen is so irreconcilable that the law must fail.

Another serious objection to the law seems to exist in the ambiguity of the provisions relating to the time limited for making the payments required by it The language of the statute requires the payment to be made within twenty days after judgment, and the subsequent portions of the section, providing that in case of pending appeals the payment might be made within twenty days after final judgment, would seem to imply that, in other cases, the time must be limited by the original judgment If this be so it might be that a defendant, by taking an appeal and staying proceedings could defeat any effort of the owner to make the payments and thus compel him to lose his land although he might be willing to comply with the statute. This seems to show the recklessness with which the owner’s interests were regarded and the injustice which may be perpetrated under its provisions

It is not without a feeling of satisfaction that we have found this amendatory statute unconstitutional, for in every view in which it may be considered it impresses us with the conviction that it is grossly inequitable and unjust We can .discover no reason in the situation of the purchaser at an illegal execution sale under the existing law which justifies the adoption of the careless, ill-considered and inequitable provisions which distinguish this legislation.

The amended section is subject to many other criticisms which we have not felt called upon to make, as those already referred to fully justify the conclusion we have reached in the case.

The order should, therefore, be affirmed, with costs.

All concur (Earl, J., in result) except Pinch, J., absent


source: Caselaw Access Project

license: Public Domain

text:
    The People, App’lts, v. Reuben Tanner, Resp’t.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Game law—Suckees—Laws 1879, chap. 534.
    The provisions of chap. 534, Laws 1879, as amended by chap. 127, Laws 1884, permitting the taking of suckers in a certain manner in specified localities, do not render nugatory their general exception from the prohibitory section of the act. They were intended to limit and restrict the exception of suckers,in the places specially referred to, from the operation of the general license to catch such fish.
    2. Same—Evidence.
    Evidence of one witness who lived on the creek near a river inhabited by bass, that he had caught bass in the creek on one occasion, is not sufficient to overcome the evidence of several witnesses who had fished in the creek for several years, that they had never caught or seen. any bass in the creek.
    . Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of defendant Martin Heermance, for app’lts; Joseph Morschauser for resp’t

       Affirming 38 N. Y. State Rep., 349.

   Ruger, Ch. J.

This appeal calls for a construction by the court of the meaning of § 23 of chapter 534 of the Laws of 1879, as amended by chapter 127 of the Laws of 1884, relating to the subject of fishing in the fresh waters of the state with nets and other devices. The action is brought for the recovery of two penalties for a violation of the provisions of §§ 23 and 24, respectively, of the act referred to. The prohibitory portion of § 23, claimed to have been violated, reads as follows : “ No person shall kill or catch, or attempt to kill or catch any fish, except minnows, bullheads, eels, suckers, and catfish, in any of the fresh waters of this state, or in the American waters of the St. Lawrence river, in any way or manner, or by any device whatever, except that of angling with a hook and line, save only in the following waters, the Hudson river below the dam at Troy ” (and some other places, not including Wappinger creek). “Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of twenty-five dollars for each and every such offense.”

It is claimed by the appellant that the defendant made himself liable to a penalty by catching suckers with a net in Wappinger’s creek, Dutchess county, although such fish are expressly excepted from the prohibitory clause of such section. The appellant claims that the court should strike out the word “ suckers ” from the exceptions to the prohibitory clause and read it as though the taking of “ suckers ” with a net was prohibited in all the fresh waters of the state, save those therein especially excepted.

We know of no rule of construction which authorizes a court to reverse the plain meaning of a penal statute and read it so as to condemn that as a criminal act which it expressly declares to be lawful The theory upon which the appellant’s claim is based-is, that in no other way can effect be given to certain exceptions in the section, and, inasmuch as the settled rules of interpretation require that some meaning should be ascribed to all of the language of a statute, that it can be accomplished in no other way except by striking out the word “ suckers ” from the list of fish-excepted. The expressions referred to are contained in the numerous and complicated exceptions to the operation of the prohibitory clause and read as follows: “And also except in the waters of the Walkill river, in the county of Ulster, wherein it shall be lawful for any person or persons of one and the same family or household to possess and fish for suckers and eels in the waters of said river during the months of March and April and October and November, with a single fyke, the meshes of which shall not be less than one inch. * * * Provided, further, that in Black Lake, Mud Lake and Yellow Lake, in St. Lawrence county, bullheads, eels, suckers, catfish and pickerel may be killed with a spear, except in the months of March, April and May.”

' The rule of construction contended for would lead to a manifest absurdity, as it would radically reconstruct the prohibitory clause and leave it inoperative, except as to minnows alone. The-plain meaning of the material part of the section is attempted to be reversed through a reference to certain clauses clearly intended for another purpose. It seems quite plain that the clauses referred to were inserted for the purpose of limiting and restricting the exception of suckers, in the places specially referred to, from the operation of the general license to catch such fish. They have a natural meaning and effect by applying them to the waters mentioned, for the purpose of authorizing a restricted privilege,, only, to fish in such places for the classes of fish therein mentioned. In the absence of these clauses the exceptions to the prohibitory clause would give unrestricted license for fishing in these waters; but the limitations contained in the quoted clauses make that a limited privilege which without it was unrestricted.

The language used, thus having a natural and legitimate office to perform, does not justify the application of a rule of construction which would create a criminal offense when none was expressed and probably none was intended.

A second count in the complaint demands a penalty against the defendant for violating § 23 of the act of 1879, in having a fish net in his possession on the shores of waters inhabited, among other kinds of fish, by black or Oswego bass.

The trial court submitted the question to the jury to determine whether Wappinger’s creek was inhabited by the fish mentioned, and they found that it was not.

It is claimed by the appellant that this finding was not supported by the evidence.

The only material evidence in the case showing that Wappinger’s creek was inhabited by black bass was that of a single individual, who lived near the mouth of the creek, and who testified that he had caught black bass in the creek above the dam. It -is inferable from this evidence that the witness lived on the creek near the Hudson river, into which it empties, and which is inhabited by bass, and that he caught such fish near that river on a single occasion. This sporadic instance is far from proving that the creek was inhabited by such fish. There was opposed to this evidence the testimony of a number of witnesses who had frequently fished in Wappinger’s creek for a long series of years, and who had never caught any bass in the creek or seen any that were caught therein. The weight of evidence on this question was, we think, with the defendant, and the jury were authorized in so finding.

The judgment should, therefore, be affirmed, with costs.

All concur, except Finch, J., absent.


author: Andrews, J.

text:
    Eugene Brackett, Adm’r, App’lt, v. Chester Griswold, Resp’t.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Conspiracy—Declarations of co-conspirator.
    Evidence insufficient to sustain a finding that the treasurer of a corporation was a co-conspirator with the directors in a scheme to defraud hy falsely representing stock to be full paid, and to render admissible his declarations as against one of said directors.
    2. Appeal—Dismissal of complaint.
    Where an action has been tried several times, and all available evidence been produced, and it is improbable that the case could be changed in any material aspect on a new trial, the general term on reversal of a judgment in favor of plaintiff has power to dismiss the complaint.

      Appeal from judgment of the supreme court, general term, third department, reversing judgment in favor of plaintiff and dismissing the complaint.
    Action to recover damages sustained by plaintiff in the purchase of notes of the Iron Mountain Company, which purchase was alleged to have been procured by false representations as to its stock made in pursuance of a conspiracy by the directors, and to charge the original defendants with liability for making a false report.

      Richard L. Hand, for app’lt; Wm. C. Holbrook, for resp’t.

       Affirming 35 N. Y. State Rep., 875.

   Andrews, J.

The third count in the complaint, upon which alone the case was submitted to the jury, alleges a conspiracy between the original defendants in the action, including the defendant Chester Griswold, to organize a sham corporation, the Iron Mountain Company of Lake Champlain, with a nominal capital of $2,000,000, to defraud the public who might deal with it and give it credit, and that in pursuance of the conspiracy they, among other things, falsely represented that the stock had been fully paid in, and resorted to other fraudulent devices, specifically set forth in the complaint, to give credit to the company, and that the plaintiff’s intestate, relying upon and being deceived by the false representations and pretenses of the defendants, purchased the notes, believing the company to be solvent and responsible, whereas it was at all times insolvent and had no property available for the payment of its debts.

On the fifth trial of the action a verdict was rendered for the plaintiff on the third count, which was subsequently reversed by this court, 112 N. Y., 454; 21 N. Y. State Rep., 791, on the ground that assuming the existence of the conspiracy alleged, and that the defendant Chester Griswold was a party to it, yet as the defendant’s intestate had no knowledge of, and did not rely upon 'any acts or representations of the alleged conspirators in purchasing the notes of the company, he was not defrauded thereby and the action could not be maintained. Pursuant to the order of the court the case went back for a new trial. The court, on the next trial, again submitted the case to the jury on a view not taken on any former trial, viz., that if the jury should find that Ellis, the treasurer of the company, was a co-conspirator with the persons originally named as conspirators, his representation made to Tuthill, the agent of Bonnell (plaintiff’s intestate), and reported to him, on the strength of which Bonnell purchased the notes, that “ the company was fully responsible; that the notes were good and would be promptly paid at maturity,” was in law the representation of all the conspirators, and that the defendant Chester Griswold was responsible therefor to the same extent as if it had been made by him personally. The jury, upon this new view of the case, found again for the plaintiff.

Their verdict has substantially established two facts, first, the original conspiracy as alleged, and second, that Ellis was a co-conspirator and in aid of the conspiracy made the false representation to Tuthill that the company was solvent and responsible. The general term reversed the judgment entered on the verdict on the ground that there was no evidence authorizing the submission to the juiy of the question whether Ellis was a co-conspirator in the scheme alleged in the complaint, and that there was no ground upon which the defendant could be held bound by the representation made by Ellis to Tuthill We concur with the opinion of the general term.

The conclusion of the jury that the defendant Chester Gris-wold was a party to any conspiracy to defraud the public through the organization of the Iron Mountain Company, is to say the least founded upon vague and unsatisfactory evidence. But assuming that upon the evidence this was a question for the jury, we think the evidence was wholly insufficient to justify a finding that Ellis was a party to the conspiracy, and it is only on the assumption of this fact that there can be any pretence that his declarations to Tuthill were admissible against the defendant. In our opinion on the former appeal the admissibility of the declarations of Ellis were considered and we then said: “It is undoubtedly true that Bonnell took the notes on the assurance of the ‘Birmingham Iron Foundry,’ and of Ellis, the treasurer of the ‘Iron Mountain Company,’ that the company was good and that the notes would be promptly paid at maturity. But neither was the ‘Birmingham Iron Foundry,’ nor Ellis, the agent of the defendant, nor were they authorized by him to make any representations to Bonnell, and the statements did not bind him, nor was he responsible for them.” '

It is true that the claim that Ellis was a co-conspirator had not, at that time, been made. That theory was first advanced when the case went back for a fifth trial. The only ground for the suggestion that Ellis was a co-conspirator arises from the fact that he was treasurer of the company, and that when he represented to Bonnell’s agent that the company was good, he had executed as treasurer, pursuant to the direction of the board of directors, corporate bonds to the amount of $400,000, and that certain drafts drawn at the works had gone to protest. There is no evidence whatever that Ellis supposed the company to be in fact insolvent when the representation was made, or that his representation was not made in the full belief of its truth. Ellis when he was appointed treasurer was cashier of a bank in Hew York city, where the financial business of the company was to be carried on. His salary was fixed at $1,000 a year. He was neither a director nor stockholder in the company, and so far as appears he had no knowledge of any of the alleged fraudulent purposes or acts of the promoters of the company, They were well known men, of large wealth and business experience, and of high standing in the community.

The issue of bonds by a corporation in the initiation of its business was not inconsistent with solvency, and the reason why some of the drafts of the company went to protest does not distinctly appear. The agent who drew them testified: “ I was requested to draw at so long a time, and so I account for it” The want ot funds in the ear ly months of the enterprise, before the development of the mines had proceeded to any extent, was- not a very significant fact, and the treasurer might well have supposed that it indicated no permanent embarrassment.

The representation made by Ellis to Tuthill was not made to secure present credit for the company. The notes had already been given and accepted by “ The Birmingham Iron Foundry,” the original creditor, and the inquiry made of the treasurer was by a party contemplating taking them upon a dealing between him and the holder of the notes. The facts disclosed are consistent with the good faith of Ellis, and in the most favorable view for the plaintiff they afford only a suspicion of fraudulent intention on his part in making the representation claimed. So far as appears he had no personal interest to subserve. Upon the evidence, the finding that Ellis was acting in concert with other parties in the scheme to create a fraudulent corporation cannot be sustained. His declarations, therefore, to Tuthill, not made in pursuance of any duty or authority as treasurer, and not previously authorized or subsequently sanctioned by the defendant, were inadmissible. This conclusion removes the only prop upon which the verdict rested, and we think the judgment founded thereon was properly reversed.

The general term in connection with the reversal dismissed the complaint on the merits. It is claimed that it was erroneous for the general term to render final judgment against the plaintiff and that it should have ordered a new trial. We think the general term had power under the circumstances to make the order. Code Civ. Pro., § 1817. It is extremely improbable that the case can be changed in any material aspect on a new trial. The case was retried on the last trial on the same evidence given on the previous trials, the evidence being read from the former records. Bonnell and Ellis are both dead. The action was commenced in 1878. Six trials have been had and every phase of the controversy has been explored with the utmost diligence by the counsel for the parties. They have substantially conceded by the course of the later trials that all the pertinent evidence available has been procured.

We do not say that no wrong was committed by the promoters of the Iron Mountain Company. But the facts bearing upon the defendant’s connection therewith, and the circumstances under which Bonnell took the notes, which caused his loss, as presented by the record, constitute no cause of action, we think, against the present defendant If there are any reasons why the plaintiff should have another trial, they can be presented to the supreme -court on an application to modify its order, that being the proper tribunal to consider and determine such an application. See Baker v. Lever, 5 Hun, 114; affirmed 67 N. Y., 304; King v. Barnes, 109 id., 267; 15 N. Y. State Rep., 52.

The judgment should be affirmed.

All concur, except Finch, J., absent


text:
    Abel A. Crosby et al., Resp’ts, v. The Prest., etc., of the Delaware & Hudson Canal Co., App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    Evidence—Parol to explain wnimra.
    In an action for conversion the contention was as to whether plaintiffs’ vendors were the vendees or the bailees of the defendant. It was shown that said vendors were engaged in building boats for defendant, for which the latter furnished the lumber, and it was claimed by defendant that the lumber in question was so furnished and the title was to remain in it. Plaintiffs introduced in evidence an order for the lumbér and a bill for the same sent by defendant. Held, that the bill was consistent with either contention and that evidence was admissible to show that it was sent merely as a memorandum of value and to notify the plaintiffs’ vendors for what amount they would be required to account on the settlement of the boat contract.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiffs.
    Action to recover damages for the alleged wrongful taking by defendant of a quantity of lumber which Gr. & E„ Hamden had sold to plaintiffs in part payment of a past indebtedness.

      F. L. Westbrook, for applt; S. L. Stebbins, for resp’ts.

       Reversing 35 N. Y. State Rep., 763.

   Andrews, J.

The judgment of nonsuit rendered on the first trial of this action was reversed by this court on the ground that there was some evidence given on the trial tending to show that there was an absolute sale of the lumber to the Harndens. 119 N. Y., 334; 29 N. Y. State Rep., 458. On the second trial the plaintiffs recovered a verdict and the judgment thereon was affirmed by the general term, and this appeal is from the judgment of affirmance.

The issue presented to the . jury was, whether the transaction between the defendant and the Harndens was a purchase and sale of the lumber out and out, or only a conditional sale or bailment. The claim on the part of the defendant is, that it was the intention of the parties that the title-to the lumber should remain in the defendant until the lumber had been used by the Harndens in the construction of the boats. The clear preponderance of evidence is in favor of this contention, but we should not feel at liberty to disturb the verdict upon this issue, provided there were no valid exceptions to rulings on evidence taken by the defendant. The evidence scarcely leaves room to doubt that the defendant furnished and the Harndens received the lumber on the understanding that it was to be used only in the construction of the two boats which the Harndens had contracted to build for the defendant. It is also quite evident that the defendant was to get the value of the lumber by deducting it from the purchase price of the boats.

The vital question was, in whom was the title to the lumber after delivery and before it was used by the Harndens for the purpose for which it was furnished. The plaintiffs, in order to establish that there was an absolute sale of the lumber to the Ham-dens, introduced an order in writing signed by the Harndens, addressed to the agent oí the defendant, dated November 21, 1882, commencing with the words “Please send us,” followed by a specification of various kinds and qualities of lumber and closing with the words “ please send by William Steven, if possible, and oblige Greo. & E. Harnden.” The lumber ordered was sent by the defendant, and after shipment the agent of the defendant sent by mail to the Harndens a bill, partly written and partly printed, the same being made out on one of the blank bill-heads used by the defendant. The bill, after the date, reads: “Messrs. Gr. & E. Harnden, to the Delaware & Hudson Canal Co., Dr.,” and then follows a list of the lumber and the prices of the various kinds. The plaintiffs introduced the order and bill as evidence that the transaction was a purchase and sale. It will be noticed that the order was consistent with either view of the transaction; that taken by the plaintiffs or that insisted upon by the defendant. The bill, while it might imply a purchase and sale of the lumber in the usual course, is also consistent with the transaction as claimed by the defendant, viz., a conditional sale at the prices named, the object of the bill being merely to advise the Harndens of the amount and qualities of the lumber shipped and the prices which would be charged against the boats on the lumber being used therefor.

The defendant’s counsel offered to show, by the agent who sent the bill, that it was sent merely as a memorandum of the value of the lumber and to notify .the Harndens for what amount they would be required to account on the settlement of the boat contract. The court overruled the offer and excluded the evidence. We think the evidence was competent. The bill was admissible in behalf of the plaintiff as an admission. It was not made contemporaneously with the contract^ but after the order had been made and the lumber supplied. The paroi explanation of the purpose for which the bill was sent was not an attempt to alter or vary a written contract. The bill, sent after the contract was made, had an equivocal significance, at least with the paroi explanation offered, it would bear an interpretation consistent with the transaction as claimed by the defendant. It was competent to show the purpose for which the bill was sent, to explain its real meaning and significance. If in fact there was a present sale of the lumber made out by other and undisputed evidence, then the purpose of sending the bill would be immaterial. But the plaintiff having .used the bill as an admission of a prior sale, the explanation should have been allowed for the consideration of the jury. Even if the bill’was made out concurrently with the contract, and was part of the res gestee, it is not a writing having such a complete and decisive character as would render the proposed evidence inadmissible. See Hazard v. Loring, 10 Cush., 267.

For the error in excluding the evidence the judgment should be reversed and a new trial ordered.

All concur, except Finch, J., absent.


author: Gray, J.

text:
    William Gates, App’lt, v. The State, Resp’t.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. State—Limitation.
    Plaintiff was injured by the falling of a bridge over the canal in 1877, and within two years mailed a claim therefor to the canal appraisers, but there was nothing to show that it was received. In 1888, the legislature passed an act authorizing and directing the board of claims to hear the claim as though it had been filed within the time provided by law. Held, that the claim was barred by the statute, and that the legislature had no power by said act to confer jurisdiction on the board of claims to allow or award upon it
    2. Same—Filing op claim.
    To constitute a valid filing of the claim in such a case there must be a delivery by, or on behalf of, the party at the office itself.
    Appeal from judgment of the board of claims, awarding nothing upon appellant’s claim.
    The appellant claimed to recover against the state for personal injuries, received from the falling of abridge over the Oswego canal, in the work of repairing which, at the time, he was engaged. His regular employment had been that of an ordinary laborer upon one of the state scows on the canal. The bridge had been reported to the canal commissioners, in the year previous to the accident, to be structurally unsound and in a very dangerous condition. The foreman of the state scow, upon which the claimant was working, when he received his directions, proceeded to the bridge in question, to make certain repairs upon it. When this work was almost completed, the structure gave way, from its general unsoundness, and the claimant, being precipitated into the canal, received his injuries. In 1879, and within two years of the occurrence, a statement of claim for damages was made out for him, which was directed and mailed to the canal appraisers. It was conceded that no other steps were taken, and that this paper could never be found, and that there was no record of its receipt or filing in the office oh the canal commissioners or of the board of claims. In 1886 the legislature passed an act authorizing and directing the board of claims to hear this claim and to award “ in like manner as though such claim had been filed within the time now provided by law.” That tribunal awarded nothing, upon the grounds that no liability had been established against the state, and that the claim was barred by lapse of time. From that decision the claimant appeals to this court.

      Louis Marshall, for app’lt; Charles F. Tabor, attorney-general, for resp’t.
   Gray, J.

If this claim might be disposed of upon its merits there would be no difficulty in establishing the liability of the state in damages. The claimant was a mere laborer, in the employ of the state upon ordinary canal work, and when, in obedience to orders, he proceeded to labor upon the bridge he was not only inexperienced, but he was ignorant of its actual condition. He cannot» be said to have assumed any of those risks which were incidental to such work from the existence of the serious defects in the bridge structure. He was entitled to believe that the place assigned to him for the performance of his work was an ordinarily safe one and that his employers had no information concerning the risks attendant upon laboring there which he did not possess himself, or which ordinary observation and prudence would not have revealed. The state, in submitting itself to the jurisdiction of a tribunal with respect to claims against it for damages sustained by reason of any accident occurring upon its canals, or connected with their care and management, subjected the determination of its liability to the government of those rules which usually obtain in cases between the employer and the employed.

It is a cardinal rule of conduct in that relation that the former shall not expose the persons who are engaged in performing his work to unreasonable risks. They have the right to assume that where they are directed to work is as safe a place as is compatible with the nature of the undertaking and that their employer has not neglected any means in his power, or at his disposal, to render its performance reasonably free from danger to life and limb. While in work of an inherently dangerous nature the workman is ordinarily held to assume that certain risk which must attend upon its execution, that rule involves, and depends for its application upon, the knowledge or means of knowledge upon the workman’s part of the attendant peril to him. Such knowledge may be presumed to be possessed by reason of previous employment and experience; or to be suggested by ordinary observation and appearances. If the workman is without experience in the particular work required of him, and if, as here, danger for him exists, from causes not apparent, but which are known to his employers, I think it unquestionable, in principle, that an obligation should be deemed to rest upon him to communicate such information as would apprise the workman of the nature of the work and of the possible risks in its execution. He should be placed on a par, as nearly as possible, in such respects, with his employer.

. His duty is not only within the letter and spirit of the rules established by many decisions, but it is one which should be dictated by every consideration of prudence and of responsibility toward others. But, however meritorious the claim 'here, the claimant’s remedy against the state had ceased to exist at the time of its submission to the board of claims from the intervention of the general statute of limitations. Section 14 of article 7 of the constitution prohibited the allowance of any claim which as between citizens of the state would be barred by lapse of time. It was, therefore, not within the powers of the legislature, by the passage of chapter 244 of the Laws of 1886, to confer jurisdiction upon the court of claims to allow, or to award upon this claim, if it was already barred by the expiration of the time limited by the general statute for the commencement of actions for damages for personal injuries resulting from negligence. Code of Civil Procedure, § 383.

As the accident occurred in 1877, the bar of that statute would fall upon the lapse of three years.

The origin of the difficulty in the way of claimant’s recovery was in his failure to comply with the requirements of the law m respect to filing his claim. Chapter 321 of the Laws of 1870 conferred jurisdiction upon the board of canal appraisers to hear anct determine such claims against the state and the proceeding thereby authorized was required to be initiated by the filing of the claim in their office. What was done in this case was to mail the statement to the canal appraisers, and the appellant’s counsel has ingeniously argued that that was a sufficient compliance with the law and constituted a- filing. The presumption as to the receipt of letters, properly directed and sent through the mails to a person, is one of fact and is based upon the circumstances of the particular case, Here, however, the question of the receipt and filing of the claim goes to the very foundation of the jurisdiction and right of the tribunal to act upon it Its powers are exclusively derived from the consent of the state, as expressed in the act of the legislature, and none may be implied except such as may fairly be deemed incidental and necessary to the jurisdiction when once acquired. The citizen who seeks to avail himself of the privilege to sue the state must be held to strictness in procedure, just as it must be held in all cases where the remedy is one which exists and is enforceable solely through the provisions of some statute. His right being dependent upon compliance with the terms of the statute, jurisdiction of his claim can be acquired by the tribunal only in the way prescribed. To require that “ claimants shall file their claims in the office of the canal appraisers ” has but one meaning and effect There must have been a delivery by, or on behalf of the party of his claim at the office itself to constitute, and to enable him to allege and to establish the jurisdictional fact of a filing. Anything- short of a delivery leaves the fact of the filing disputable, and that, I think, would be quite inconsistent with the principle which underlies the jurisdiction of the inferior tribunal. Its jurisdiction being limited and special, no presumption will be entertained in support of it,- but the fact conferring it must affirmatively and conclusively appear. See Foot v. Stevens, 17 Wend., 483.

The state cannot be sued without its consent and. it has the right, in authorizing the maintenance of proceedings for the recovery of claims against it, to impose such terms and conditions and to prescribe such procedure as its legislative body shall deem proper. The conditions imposed become jurisdictional facts and determine the status and right of the litigant If we should hold that the mailing by a claimant of his claim, directed to the canal appraisers, was equivalent to a filing in the office, I think we should be disregarding the plain reading of the law and denying to the words of a statute their plain'and usual force and significance.

When, under § 12 of chap. 205 of the Laws of 1883, the board of claims was created and claims pending before the board of canal appraisers were transferred to the new tribunal, the present claim, for lack of the filing required by the statute, was not one of those included in the transfer. The failure to file had resulted in the loss to the claimant of his remedy against the state. The act of 1886 was of no avail to him ; for it was in violation of the constitutional amendment of 1874, in so far as it authorized the board of claims to make an award upon an unenforceable claim. Its only effect was to authorize the board to hear the claim, notwithstanding the limitation in the act creating that tribunal as to the time of filing. The claim came before the board subject to all constitutional limitations and, therefore, to any statutory provisions which, as between citizens of the state, would have barred an action. McDougall v. The State, 109 N. Y., 73; 14 N. Y. State Rep., 791.

The result reached is not, on general grounds, unjust. The claimant’s remedy was lost by the failure to make use of means, from the very first moment, available to him. There was in existence a tribunal before which his claim could at all times have been prosecuted against the state. The omission to commence the proceeding, in the mode and within the time pointed out by the act of 1870, which authorized such claims to be heard and determined, and the eventual lapse of the period of time limited by the general statute for the commencement of actions of that nature, operated to bar any recovery, when,, by virtue- of the act passed in 1886, for his relief, the board of claims was directed to hear the claim. Upon these facts appearing that court could not make any award, because of the constitutional prohibition as to such claim.

For the reasons I have stated the decision and award of the court of claims should be affirmed, with costs.

All concur, except Finch, J., absent


author: Earl, J.

text:
    Mary Birch Reid, Resp’t, v. The Board of Supervisors of Albany County, App’lt.

      (Court of Appeals,

      Filed October 6, 1891.)

    1. Taxes—Reimbursement to purchaser—Limitation.
    Plaintiff’s husband purchased lands at tax sales from 1875 to 1883, inclusive, but it did not appear that he made any effort to gain possession thereof: In 1889 he demanded reimbursement from defendant on the ground that the taxes were invalid. Held, that the decision of this court in Bemsm v. Wheeler had no relation to these parties or sales; that the sales if invalid were so from the first and the purchaser was entitled to demand reimbursement at once, and his cause of action was barred in six years from that time.
    3. Same—Laws 1850, Chap. 86.
    To entitle a purchaser to claim reimbursement under § 53 of article 6 of chapter 86, Laws 1850, he must show that he made some effort to obtain possession of the lands, and that it was done within a reasonable time. Such effort may be by taking the proceedings provided by the statute or by a demand of possession made of the owner or occupant.
    3. Same—Laws 1889, Chap. 429.
    Chapter 439, Laws 1889, amending the act of 1850 by inserting the words “ at any time within six years ” in § 52, has no application to sales made prior to its passage.

      Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff.
    William Reid became the purchaser at tax sales in the city of Albany of certain lands sold for non-payment of taxes thereon, under the act, chapter 86 of the Laws of 1850, and he received the certificates of such sales and the deeds of the lands sold as provided in that act. The sales were made and the moneys paid by him between June, 1875, and June, 1883, both inclusive. The plaintiff has succeeded to the rights of Reid and commenced this action September 2, 1890, to recover with interest the moneys paid by Reid upon such sales. The defense was the statute of limitations, which was overruled by the trial judge, who gave judgment to the plaintiff for the amount claimed. That judgment having been affirmed at the generdl term the defendant has brought this appeal. Other facts appear sufficiently in the opinion.

      Andrew Hamilton, for app’lt; D. Cady Herrick, for resp’t

       Reversing 37 N. Y. State Rep., 847.

   Earl, J.

All the moneys claimed in this action were paid upon the tax sales more than seven years before the commencement of the action, and the only question for our determination is, whether their recovery is barred by the statute of limitations.

Under § 48 of article 6 of chapter 86 of the Laws of 1850, the purchaser at tax sales conducted in the city of Albany, upon the payment by him of the amount of his bids, was entitled to receive certificates of such sales, and then he was immediately entitled to possess, hold and enjoy the lands purchased for the full term mentioned in his certificates, and he was authorized to cause the occupants thereof to be removed therefrom, and the possession thereof delivered to him in the same manner and by the same proceedings, by and before the same officers, as in the case of a tenant holding over after the expiration of his term without permission of his landlord.

Then it was provided in § 52 of the same article, excepting the words in italics, as follows : “ Whenever any purchaser under

such sales shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the board of supervisors of the said county shall, at any time within six years from such sale, reimburse the purchase money so paid, with interest; and upon their refusal or neglect to do so, the same may be recovered by an action against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose, not otherwise specifically appropriated, upon the production of a certified copy of the judgment; and if he have no such moneys in his hands, then the same shall be added to the amount of the taxes to be levied on the city of Albany, and collected in the same manner as other contingent expenses, and when collected shall be paid over to such purchaser.”

The section was amended by the act, chap. 429 of the Laws of 1889, passed June 11th of that year, by inserting therein the words in italics.

It was not alleged in the complaint, and was not shown upon the trial that any legal proceedings of any kind had been instituted by the purchaser or the plaintiff .to recover possession of the real estate. It does not even appear by allegations or proof that the purchaser or the plaintiff ever demanded, or made any efforts of any kind to obtain such possession. The plaintiff’s case rests upon the allegation contained in the complaint, and not denied in the answer, that the purchaser and the plaintiff were unable to recover the possession of the real estate purchased, by reason of errors and irregularities in the assessment and in the levying of the taxes, and in the proceedings for the collection thereof. The finding of the trial judge upon that branch of the plaintiff’s case was based on that admitted allegation, and he found that the purchaser was entitled to demand possession of the real estate sold to him immediately upon the issuing to him of the certificates of the sales, and that by reason of errors and irregularities in the proceedings prior to the said sales the purchaser was unable to recover possession of the parcels sold at the times of such sales and immediately thereafter.

The trial judge made a finding of fact based upon an allegation in the complaint, not denied in the answer, “ that as a result of a decision of the court of appeals of this state in a similar case the said tax sales were declared irregular and void on or about January 7, 1887.” And upon that finding of fact he based a conclusion of law “ that neither the said William Reid- nor the plaintiff were entitled to demand of the defendants the reimbursement of the moneys so paid out on said tax sales and for such certificates and deeds above referred to, until the year 1887, and after such sales, certificates and deeds had been declared irregular and void by the court as hereinbefore foundand he held that the statute of limitations did not begin to run until that date. The decision of the court of appeals referred to was made in the case of Remsen v. Wheeler, 105 N. Y., 573 ; 8 N. Y. State Rep., 202, a case which arose in the city of Brooklyn and related exclusively to taxes imposed there. That decision had nothing whatever to do with these parties or these sales. It did not conclude or bind these parties, and simply furnished evidence of the law. It was not even absolutely binding as a precedent in any other case. The court of appeals could disregard it as authority in any subsequent case if it believed it to be unsound. The Saint Nicholas Bank v. The State National Bank, 37 N. Y. State Rep., 829. These tax sales were not valid until that decision and then thereby rendered invalid. They were from the first invalid, and the rights of the parties interested were in no way affected by that decision. The rights and the duty of the purchaser and the obligations of the defendant were precisely the same before that decision as after. Upon this point the following authorities have some bearing. Allen v. Mille, 17 Wend., 202 ; Parsons v. City of Rochester, 43 Hun, 258; 5 N. Y. State Rep., 467; Van Nest v. The Mayor, etc., 24 Wk. Dig., 50; White v. City of Brooklyn, 122 N. Y., 53 ; 33 N. Y. State Rep., 307.

That decision can therefore have no bearing upon this case except to show that these tax sales were invalid from the beginning. The plaintiff’s case stands then solely upon the ground that the tax sales being invalid, he obtained no title to the lands and could not have recovered the possession thereof in any legal proceedings instituted by him if they had been resisted. Upon this view of the case the purchaser was at once entitled to demand reimbursement from the defendant, and his cause of action was barred in six years from that time, under § 410 of the Code, which provides that “ when a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.”

These views are sufficient for the reversal of this judgment, but upon a new trial other facts may appear, and hence it is quite proper that' we should determine the construction and the force and effect of § 52 as found in the act of 1850.

Under that section, before the plaintiff can recover in this action, she must show that the purchaser made some efforts to obtain the possession of the lands. That is clearly implied in the language used. The purchaser must have been “unable to recover such property,” and the inability could not be predicated of a case where no steps whatever had been taken to recover possession. It is not sufficient to show merely that the sales were illegal. The occupant might still not choose to resist the right of the purchaser, and the obligation of the defendant to reimburse the purchaser only .arises in case of the inability to recover possession for reasons particularly mentioned in the section. Good faith requires , at least so much of the purchaser. , '

What efforts must the purchaser have used to recover the possession before he can claim reimbursement under the section ? He may institute an action or the special proceeding mentioned in § 48 above referred to, and if he conducts the action or the special proceeding in good faith to a termination unsuccessfully, on account of the invalidity of the sales, the result will show his inability to recover and his right to reimbursement. But he is not bound to institute an action or the special proceeding. He may go to the land and demand the possession from the occupant or owner, and if his right is denied and the possession is refused to him on the ground of the invalidity of the sales, then he may make his demand for reimbursement. But in such case he must assume the burden of establishing the invalidity of the sales and his inability on that account to obtain the possession. It is not provided in the statute that his inability to recover the possession shall be established by legal proceedings, and it would be unreasonable to suppose that the legislature meant that he should institute fruitless legal proceedings against an owner or occupant insisting upon the invalidity of the sales, and thus subject himself to useless expense before he could reclaim the money for which he had received no value.

Within what time should the purchaser take the steps or make his effort to recover the possession ? The statute of 1850 says nothing upon the subject It could riot have been the legislative intention that the purchaser could delay unreasonably and thus make the county practically an enforced borrower of his money at the lawful rate of interest during his will. The law provides in substance that he is to do something before he can claim reimbursement, and it is implied in such a case that he must act within a reasonable time. There can be' no other rule. If he institutes legal proceedings he must institute them within a reasonable time after he obtains his certificates, and conduct them to a termination with reasonable diligence, and then the statute of limitations will begin to run from their termination, as his failure to recover is then established. If he relies upon a demand of possession, and does not institute legal proceedings, then the demand must have been made within a reasonable time, and the statute of limitations will begin to run from that time. What is a reasonable time in such a case is a question of law to be determined upon the circumstances of each case. Any other construction of the statute will enable the purchaser, to defeat, or nullify the statute of limitations by voluntarily postponing through his own negligence the time when he could make the demand for reimbursement The statute of limitations begins to run from the time his right to demand reimbursement is complete, and as it depends upon his own act to perfect his right to make the demand, he cannot unreasonably delay that act

We have thus far considered § 52 as it was before the amendment of 1889. The amendment can have no effect in this case. If the plaintiff’s claim was barred by the limitation prescribed in the Code when the amendment was enacted, then it certainly does not reach this case. The original section is applicable to all prior sales, and the amendment is prospective in its operation. The original section may be treated as if it was permitted to stand, and the amendment had been placed in a separate act applicable to future sales. Ely v. Holton, 15 N. Y., 595; Moore v. Mausert, 49 id., 332; Gibbs v. The Insurance Co., 63 id., 114, 121; People v. The Supervisors, etc., 67 id., 110-117; Goillotel v. The Mayor, etc., 87 id., 445; Matter of Miller, 110 id., 216, 223; 18 N. Y. State Rep., 226. The amendment did not repeal the Code limitations, but left them to apply to past cases and simply made a new rule to apply to future cases.

The legislature could, however, have made the amendment applicable to past sales, provided a reasonable time was given for the purchaser to claim and enforce reimbursement after the amendment took effect. Cooley’s Cons. Lim., 4th ed., 456; Bigelow v. Bemis, 2 Allen, 496; Terry v. Anderson, 95 U. S., 628.

Our conclusion, therefore, is that the judgment should be reversed, and a new trial granted,' costs to abide event

All concur, except Peckham J., not sitting, and Finch, J., absent