author: Yan Brunt, P. J. Barrett, J.

text:
    Nathan Fernbacher, Resp’t, v. Theodore Roosevelt et al., as Board of Police Commissioners, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Elections—Ballots—Pabty emblem.
    Where the convention of a party has been regularly called, has made its nominations and has sent its certificate to the secretary of state containing the ■ emblem of that party, that device controls and must head the nominations of that party.
    2. Same.
    An independent party may nominate the same individuals, but it must nominate them as an independenl party, place them under its device, and list them under its ticket.
    3. Same
    Where the secretary of state has certified the nominations in the order in which they have been received by him, and in which they are entitled, by the provisions of the law to be put upon the ballot, the police commissioners cannot ignore that certificate.
    4. Same.
    The state party can have but one emblem, and that so far as the candidates of the state party are concerned, that emblem is controlling upon all the local factions within the party.

      5. Same.
    The ticket of each party for state officers must be in a single column and headed by such party’s chosen emblem.
    6. Same—Objection to ballots.
    Section 65 of the election law, which provides that a written objection to any certificate of nomination may be filed in three days after the filing of such certificate, is not exclusive.
    7. Same.
    Section 56 of said act gives the proper courts summary jurisdiction, on the complaint of any citizen, to review the acts of the officer responsible for the printing of the ballots.
    Appeal from an order, enjoining the police commissioners of the state of New York from printing names of candidates for state offices in any column upon the official ballot under the name or-emblem of .the “ New York State Democracy.”
    The opinion of Mr. Justice Beach on granting the injunction is as follows:
    The objections to plaintiff’s standing in court and the mode of procedure are not well taken. The law of 1895 (section 56) provides that “ any question arising with reference to any 'device or to the political party or other name designated in any certificate of nomination filed pursuant to the provisions of this section or of section 57 of this act with reference to the construction, validity, or legality of any such certificate, shall be determined in the first instance by the officer with whom such certificate, is filed. * * * The supreme court, or any justice thereof, within the judicial district, or any county judge within his county, shall have summary jurisdiction upon complaint of any-citizen to review the determination and acts of such officer, and to make such order in the premises as justice may require." The general terms and wide scope of this provision remove the procéeding outside the rules of pleading and practice "contained in the Code of Civil Procedure regulating actions and civil proceedings. The conclusion of the court or judge is here made known by an order, not judgment or decree, indicating that the legislature recognized the need for a simple and prompt remedy for alleged violations of the election law. .To conform with this "enactment, the moving party, a citizen, has presented to the court his complaint in the form of petition, claiming the action of the board of police commissioners to have been illegal, as evidenced by the resolution of said board passed October 16th inst. This resoluion directs the emblem or device of the New York State Democracy to be placed at the head of a column on the ballot, such column to contain the names of candidates for state offices nominated by the Democratic state convention, followed by the local ticket of the State Democracy. This action or decision relates both to a device and to the certificate of local nominations made by the State Democracy, and filed with the board of police commissioners, which certificate alone can serve as a foundation for their resolution. Section 65 of the act, providing for objections to certificates of nomination, is not restrictive of section 55 relating to the “ construction, .validity or legality ” of any certificate of nomination filed, but adds thereto, by providing that “ written objections” may be filed, and indicates the course of procedure thereon. But whether the board of police commissioners render a decision upon written objections, or, in their absence, upon any question within the scope of section 56, their action may be reviewed. The sections are neither consistent nor exclusivethe latter (section 65) relates to written objections and procedure when they are filed, and before decision has been rendered, while the former (section 56) gives the right to seek a review of their decision after rendition to any citizen upon application to a court or judge.
    The plaintiff states a complaint in his petition proper for presentation, and the method chosen is unobjectionable. The main question set forth, briefly stated, is whether or not the board of police commissioners legally allotted by its resolution to the State Democracy a column on the ballot with its emblem, the column to iuclude names of candidates for state offices, or, as designated in the act, candidates to be voted for by the electors of the entire state. The question relates practically to the ballot and use thereon of the emblem or device in connection with state candidates. It is to be decided from the enactment of 1895, which, in the wisdom of the legislature, has provided a new form of single ballot, with specific provisions regulating its form and contents differing widely from prior statutes upon the subject Existent decisions of the courts give no guidance to a correct conclusion, except those bearing upon statutory construction. The present law enacts by mandatory sections rules applicable to state and local nominations. For state officers candidates must be nominated in one of two ways: First, by state convention ; second, by nominating certificate bearing the names of 3,000 electors. The results of state conventions, officially attested, and certificates of nomination, within specified periods, must be filed in the office of the secretary of state, and in each instance must specify a. device or emblem. By section 60 this official, upon expiration of the time for filing certificates of nomination, shall certify to the board of police commissioners the name, residence, and place of business, if any, of each candidate nominated in any certificate so filed for whom the voters may vote, the title of -the office for which he is nominated, the party or other political name specified in ■such certificate, and the emblem or device chosen to represent and distinguish the candidates of the political party or independent body making such nominations. By section 8Í it is further provided that the tickets or lists of candidates of the various parties shall pe printed in parallel columns, headed by the.chosen device and party name or other designation, in such order as the secretary of state shall direct. It is concluded from these provisions that the plain intent of the legislature, as to nominations and emblems for state candidates, was to restrict the contents of the ballot to those candidates whose names had been lawfully filed in the secretary of state’s office, and by him certified to, local officials, together with the emblems. This intention was wise, preventing confusion and doubt relative to nominations and emblems for state tickets. Were it otherwise, local conventions, by adopting a state ticket without its legal emblem, could multiply the ballot columns for an indefinite extent, tending to mislead the elector and nullify the legislative effort for simplicity of ballot and consequent intelligent exercise of. the voting franchise.
    It appears in this proceeding that the secretary of state, in obedience to law, has duly certified the names of state candidates and the emblems as filed in his office, together with the order of position on the ballot, to the board of police commissioners. It also appe&rs that the board, in contravention and disregard o£ this certificate, purposes to devote a column in part to state candidates and emblem adopted by a local convention called, on behalf of the State Democracy, to name candidates for local offices,, and further to disturb the order of position on the ballot legally directed by the secretary of state. It is conceded that such organization has not held a state convention, and has not filed certificate or emblem in the secretary of state’s office. There is no authority, either expressed or implied, to be found in the statute giving the board of police commissioners the right or semblance of a right to reverse, affect, nullify, or interfere with the official action of the secretary or state, shown by his certificate. It is true that section 81, prescribing the form of official ballots, has no provision applicable in terms to local nominations by factional local conventions; but, even so, the omission cannot warrant an assumptipn of power by the board of police commissioners not given by statute, and subversive of the authorized action of the secretary of state. The board of police commissioners have acted erroneously in allowing to the State Democracy the use of an emblem over candidates for state offices. This action, in my opinion, should be reversed, and the local candidates of that organization (irregular by the judgment of party authorities) should be placed in a column, under their emblem, without the names of candidates for state offices appearing before them. The prayer of petitioner is granted. An order may be settled on notice of one day.

      Francis M. Scott, counsel to the corporation, and Wallace Macfarlane,. of counsel for app’lts; Asa Bird Gardiner, David Leventritt, and Henry D. Hotchkiss, for resp’t.
   Yan Brunt, P. J.

(orally)—Necessarily, owing to the brief time that we have had for the consideration of the question which was presented on the argument this morning, what we can say in reference to the conclusion at which we have arrived must be of a somewhat desultory character, and we can only briefly outline the views to which we have all come upon an examination of the act before us. There seems to have been at the foundation of this legislation a scheme that there should be some intelligent action upon the part of each and every voter, and it seems to have been attempted to enable such voter to exercise such intelligent action in as simple a manner as possible. As a consequence, the provision of the law was that there should be spread before the voter the names of the various persons for whom he was called upon to vote. He was to be allowed to vote a straight party-ticket, he was to be allowed to vote a straight independent ticket, as he might see fit. And it would seem that the tendencies of the law had been to bring that possibility within the reach of each individual voter, and that, as was suggested by the counsel for the appellants, the idea of devices or emblems was resorted to for the purpose of enabling the illiterate voter to attain that end. It was for the protection of the illiterate voter that the emblem was resorted to, and enable him to exercise his will, as far as he might be able to do, to vote for the candidates whom he might select. This idea is also evidenced by the fact that there is a provision in the act which limits each party to a single device. The provision in regard to the form of the ballot is:

“ Every ballot intended for the use of electors, printed in accordance with the provisions of this act shall contain a party device for each party represented on the ticket. * * * There shall be provided at each polling place at each election but one form of ballot for all the candidates for public office and every ballot shall contain the names of all the candidates whose nomination for any office specified in the ballot have been duly made, and not withdrawn in accordance herewith, together with the title of the office, arranged in tickets or lists under the respective party or political or other designation certified. * * * The arrangement of the ballot shall in general, conform" as nearly as practicable to the plan hereinafter given. ■ The tickets or lists of candidates of the various parties shall be printed in parallel columns headed by the chosen devices, and the party name or other designation in such order as the secretary of state may direct, precedence however, being given to the party which polled the highest number of votes for the head of the ticket in the next preceding general election * * *. The number of such columns shall exceed by one the number of sets of candidates to be voted for at the polling place for which the ballot is provided, nominated by different certificates of nomination, except as otherwise provided in this section.” Section 81.

Throughout this section there seems to be a recognition of the idea that there should be a single column for a single party, and a single device at the head of that column, so that the voter who desires to vote a straight ticket may vote the ticket under that column. We find also,'when we come to the provisions of the law in respect to the filing of certificates of nomination, the same idea to prevail. The certificates of nomination in regard to state offices shall be filed with the secretory of state. The nominating authority shall file with the secretary of state an emblem which is to head the ticket, and, if such an emblem is not filed, then the secretary of state may select such an emblem; and the emblems or devices so chosen, when filed as aforesaid, shall be used to designate and distinguish all the candidates of the same political party or independent body. There would seem to be, there, an intention upon the part of the legislature that each party should be represented by a single emblem. That being the condition of the law, it seems necessarily to follow that, where a convention of a party has been regularly called, has made its nominations, has sent its certificate to the secretary of state containing the era blem of that party, that device controls, and must head the nominations-of that party. There is a further provision of the statute which authorizes independent nominations to be made. It determines how these nominations shall be made, what shall be done, what shall be filed with the secretary of state of such nominations, what the secretary of state shall do in the case of such ndmi-. nation. But these nominations are designated as “ independent nominations.” They do not come under the head of the • regular party nomination, whose convention has chosen the device under which the nominations of that convention arc to be presented to the people. Undoubtedly, an independent party may nominate the same individuals, but they must nominate them as an independent party, place them under their device, and list them under their ticket. Such being the condition of the law, it would seem that it was necessary, in order for any independent organization or any person claiming the right for the presentation of a state ticket upon the ballot to be printed, that they must make the nominations in a manner conformable to the statute, and file a certificate with the secretary of state. Then the secretary of state certifies the nomination to .the county officers,—in this county, the .police commissioners; in other counties, the county clerk, and from them the county officers get the information or knowledge as to the state offices which have been put in nomination by the conventions or in the independent manner prescribed by the statute. In the case at bar, this procedure has not been followed. It-appears that in all the other independent nominations they have been followed. They have made their nominations, either by convention or by certificate, and filed them with the secretary of state. The secretary of state has certified these nominations to the board óf police commissioners, and the board of police commissioners get their knowledge as to these nominations from that certificate, and there is no means by which they can be aEorded any legal knowledge whatever as to those nominations except from the certificate of the secretary of state.

As fiir as the State Democracy are concerned, they do not seem to have made any nominations for state offices. It is true, they have filed a certificate with the board of police commissioners as to their local nominations, with a notice that they have indorsed certain state nominations. But they have not made any nominations in the manner prescribed by the statute, or filed any certificate with the secretary of state. Neither has the secretary of state certified to the board of police commissioners (from whom alone the police commissioners can get knowledge in regard to any state' nominations) as to the fact of this faction having made any nominations for state officers whatever. That brings us to a consider-' ation of the question in regard to the action of the board of police commissioners in reference to the form of the ballot. The statute provides that, as nearly as practicable, the ballot shall be printed in the form designated' by the secretary of state. And the secretary of state has certified the nominations in the order in which they have been received by him, and in which they were entitled, by the provisions of the law, to be put upon the ballot. The police commissioners have ignored that certificate. There is no practical difficulty in the way of having one column here and one there, but they have absolutely ignored that certificate, and have adopted an order of their own. We cannot find any authority in the law for that. They have no discretion, except where it is impossible to follow out the order designated by the secretary of state.

There is much more that might be said in reference to this matter, and Mr. Justice Barrett will say a few words in regard to the decision of Mr. Justice Cullen, distinguishing the condition of the law which exists at the present time from that which existed in 1894. It is proper, however, that I should call attention to the claim that is made that the respondent had no standing in court. As we understand it, that is founded upon the provisions of section 65 of the act of 1895, which provides that a written objection-to any certificate of nomination may be filed in the office in which the certificate is filed within three days after the filing of the certificate. It might be said, in the first instance, that, as far as these state officers were concerned, there has been no certificate of nomination filed, and consequently there was no necessity of any written objection. But, even if there had been an attempt to file a certificate, the provisions of section 65 were not exclusive. It depended upon what action the police commissioners took upon that certificate of nomination as to whether there was any necessity of intervention or- not. Then, by the provisions of section 56, it is provided that the supreme court, or any justice thereof, within the judicial district, or any judge within his county, shall have summary jurisdiction, upon complaint of any citizen, to review the determination and acts of suph officer.

How, it is further objected that the respondent, here has 'not shown any interest in this suit, and that courts are not trying moot questions. He is a citizen; consequently, presumably, a voter. He has an interest, if it were necessary, in having the law carried out in respect to the manner in which the election should be conducted. But that is not necessary. The statute has provided that upon the complaint of any citizen the court shall redress any wrong which may have been committed, whether as against himself or anybody else. This might be said to be analogous to the right conferred upon a taxpayer under certain circumstances. A taxpayer’s interest is infinitesimal. If he is aggrieved by some particular action of the corporation or its officers, it is to so small an extent that the court would not take notice of it as an individual grievance, and never-did until the taxpayer was given by authority of law the.right to intervene. So here the citizen is given the right to intervene, and the court is bound to entertain his complaint, if any be made to it.

The order should-be affirmed.

Barrett, J.

(orally). — I concur, and will state briefly the grounds of my concurrence. The key to the solution of the main question here presented is the legislative intention with regard to the new device of a party emblem. Clearly, no state party can have more than one emblem. If that be so (and it is unquestioned), no state party can secure additional emblems through the accident. of" local discussions. The state party’s emblem runs through the whole state, and covers the candidates nominated by its state convention. The policy of the law' was, to make the ballot clear, and to keep it within reasonable proportions by limiting each party to one emblem in one column on a single ballot. If the apppellants’ contention be correct, emblems may be multiplied indefinitely in each county. The true coustruction of the act is that no local division of a state party can vary the emblem adopted by its state convention. Here the attempt necessarily is to vary that emblem. The State Democracy shows that it is a component part of the Democratic party. That being so, it is bound by the party device. The party authorities of the State Democracy cannot alter its party device or substitute another for it. Probably they would have attempted to do so if they could use it as the means of combining the state ticket with their own local ticket. Practically they cannot do this because of the action of the state convention; and because they cannot do so they claim the right to vote for the party candidates at large under an emblem other than that chosen by the Democratic state convention. Now, plainly, this cannot be. If it were permitted, it would destroy the whole system of single party emblems and single state party columns. Tiie members of the State Democracy are not deprived of their right to vote for the party candidates. They cannot do so quite as conveniently as those who vote a straight ticket; but, to illustrate from the facts before us, they can vote the “ Star ” generally and their own candidates specially, or they can vote their own emblem generally and the state candidates specially. Their grievance is that they cannot vote a single straight ticket* for all the party candidates with their own emblem. But that grievance results from the division in the party, and from the recognition of their adversary by the state convention.. It is thus inseparable from their attitude. We may assume that each local faction stands equally as a component part of the party. That very assumption shows that both factions are bound by the state party emblem, and that neither of them can adopt another emblem, — I mean another emblem under which to vote the Democratic state party ticket.

It comes back to the original proposition, that the state party can have one emblem, and that, so far as the candidates of the state party are concerned, that emblem is controlling upon all the local factions within the party. Bach local faction can have its own emblem only for its own local candidates. Such is clearly the meaning of the words, the names of its candidates,” in section 56 of the act of 1895 (chapter 810). But for its state candidates it can have no emblem save that chosen by the state convention. Where there are several factions of the same party in the county, the state convention decides which faction shall have .the advantage of regularity. Because of that regularity, one faction becomes entitled to the sole use of the party emblem for its local candidates. Whatever disadvantage results to the opposite faction, so results from its lack of regularity. It is inevitable to the situation in which it is placed.

It must suffer this disavantage, rather than secure an advantage at the expense of the homogeneity of the system planned by the legislature. The party authorities of the State Democracy could have avoided this inconvenience by resorting to the statute as to independent nominations. In that ease they might have had a straight ticket, consisting of these very state candidates and their own local candidates under one independent emblem. But, as they did not make either a party nomination (and they could not have done so without becoming a new party) or independent nominations, as in fact they rely upon their position as an integral part of the Democratic party, they cannot place the state candidates of their party under any emblem save that chosen by their state party convention. It seems to me that that is entirely clear.

My attention has been called to the opinion of Mr. Justice Cullen, in Re Madden, 35 N. Y. Supp. 906. I would entirely agree with this learned justice if the law were the same as that which was considered in Re Mitchell, 81 Hun, 401. But, as we have seen, the act of 1895 is a radical departure from the previous ballot law. The crucial change in the present system is, not only the substitution of a single ballot for all the candidates, as observed by Mr. Justice Gull bn, but the provision for a single emblem for such party, under which — and under which alone—the party ticket as such can be voted. It is true that the voter can now vote for that ticket in a variety of other ways, and under other party emblems, or' under independent nomination emblems.

But if he desires to vote for that ticket as such—that is, for the straight party ticket in the state—he must vote for it under that party’s lawfully chosen emblem. My conclusion is that throughout the length and breadth, of the state the ticket of each party for state officers must be in a single column, and must be headed by such party’s chosen emblem. Ho local division of such party regular or irregular, can in its locality, choose for the party at large another or different emblem; nor certainly can any county clerk or board. Each local division can undoubtedly choose an independent emblem for its local candidates,—meaning, of course its local candidates as distinguished from state candidates. For the latter it cannot choose an independent emblem. Its state candidates are the candidates of the party at large, and the choice of an emblem for that party is vested by law exclusively in the state convention. It follows that the board of police erred in giving to the Democratic party, as it has, an additional column on its proposed ballot, and an additional emblem. It also erred in varying the precedence given to the various party columns according to law by the secretary of state.

For these reasons I concur that this order should be affirmed.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    In the Matter of an Application by John P. Madden, for an Injunction.

      (County Court, Queens Special Term,

      Filed October 26, 1895.)

    Application by John P. Madden for an injunction to restrain the county clerk of Queens county from printing the names of the nominees of the Democratic party for state offices in the party-column of the Gleason faction in Long Island City, which nominated a local ticket under the name of the “Regular Democratic Party ” and adopted the emblem of an ax.
   Cullen, J.

— The principle involved in this case' is substantially the same as that in Re Mitchell, 81 Hun, 401, 61 St. Rep. 121; and that the decision made by the general term of this court must control, unless the changes in the statute, made to provide for the use of a blanket ballot, have rendered that decision inapplicable. I think that such is not the case. The .present ballot law treats of but two general kinds of nominations — party^nom: inations and independent nominations.

Independent nominations are those provided for by the certificate of certain number of voters, under section 57. Section 56 provides for party nominations. This section recognizes the fact that there may be divisions within a party, of several factions of the same party. It directs that in such case the officer with whom the nominations are filed shall give the faction recognized by the party authorities the regular party emblem; and as to other factions, if they have not adopted emblems, he shall select emblems for them. By this section it will be seen that the irregular nominees, if we may use that term, are still party noniinees, and in no wise independent nominations; for as already stated section 57 expressly defines independent nominations. By section 81 the form of the ballot is prescribed, and the manner in which the voter shall indicate his vote. Every party ticket is to have a separate column, and the instruction is to be placed at the circle at the head of the column: “ For a straight ticket, mark within

this circle.” If the nominees of the party as to which there is no factional dispute are not to be placed in such column, it renders the whole system of marking the ballot futile in such a case. I think, therefore, the action of the clerk was correct and should be sustained. Application denied.


author: Follett, J.

text:
    John H. Millard, Resp’t, v. Holland Trust Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    A-ppm at.—Evidence.
    An exception to the exclusion of evidence will not be considered on appeal, where the subject of the inquiry was not disclosed at the trial court.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      John B. Parsons, for app’lt; L. Laflin "Kellogg, for resp’t.
   Follett, J.

This action was begun May 12, 1893, to recover damages for the failure of the defendant to perform its executory contract, by which, it is alleged, it agreed to purchase fifty $1,000 bonds, and pay therefor a sum sufficient to pay the amount of the plaintiff’s lien on the bonds acquired by an attachment. The defendant, in its answer, denied making the contract, and also pleaded that it was void under the statute of frauds, because not in writing. The contract, if there was any, was made between the attorneys for the plaintiff and the defendant Whether such a contract was made was the principal question of fact litigated before the jury, which found in favor of the plaintiff. The appellant does not complain of the manner in which this issue was submitted to the jury, but it urges that the question of the authority of the defendant’s attorney to make the contract was not fairly submitted. Upon this question, the trial judge, without much reference to the evidence, submitted to the jury the question whether the attorney for the defendant had been invested with apparent authority to enter into the contract testified to in behalf of the plaintiff. Upon an exception being taken by the learned counsel for the defendant to the charge on this issue, the court further said :

“If the defendant did not authorize its attorney, Van Hoosen, to • buy the fifty bonds, but only to buy the one hundred bonds, it is not liable in this action, even if the agent did agree to buy the fifty. The act of the agent in excess of his authority never binds the principal, unless a third party, having a right, to believe that the agent was acting within his authority, would sustain a loss if the act was not considered that of the principal.”

' The plaintiff sought to establish the power of the defendant’s attorney to make the contract by proving that the entire contract related to 150 bonds, and that the defendant had taken and paid for 100 bonds, in accordance with the agreement. The defendant’s attorney testified that he had no authority to purchase the fifty bonds; that he told the plaintiff’s attorney so; and that he did not agree to buy them. Without reciting the evidence, we think a fair’ question of fact as to the authority of the defendant’s attorney was raised, and that it was fairly submitted to the jury. The appellant urges that the court erred in refusing to permit t£e defendant’s attorney to testify to the conversation between him and defendant’s president. The question was : l:Q. State what occurred with Mr. Roosevelt. (Objected to. Objection sustained. Exception by defendant.) ” The appellant now urges that the object of this question was to show the extent of che authority given by the defendant to his attorney in respect to this matter. The question does not disclose that such was the subject of the inquiry, and we think that it was the duty of the defendant’s counsel to have stated in this connection that he desired to show the extent of the authority conferred upon defendant’s attorney. For any other purpose’ the conversation between Mr. Roosevelt and the defendant’s attorney was incompetent. The contract, as testified to by the plaintiff’s attorney, was taken out of the statute of frauds by the delivery of and payments for 100 of the 150 bonds. We think it sufficiently appears that the Bank of Fayetteville had some interest in the fifty bonds, and that jurisdiction was acquired; but, in any event, the defendant in this action had greater knowledge in respect to the interest of the bank than the plaintiff, and made its contract with reference to its knowledge, and it cannot now be heard to say that the Bank of Fayetteville had no interest in these bonds.

Thé judgment and order should be affirmed, with costs.


author: Per Curiam.

text:
    Thomas Hay, App’lt, v. Pamelia B. Cole, Def’t.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    .Judgment—Motion to set aside—Pendency.
    A party cannot move to set aside a judgment,. while an action by him for such purpose is pending in another court; such pending action is a defense to the motion.
    Appeal from an order, setting aside a judgment entered by confession in favor of plaintiff on motion of respondent

      James W. McElhinney, for app’lt; Andrew Shiland, for resp’t.
   Per Curiam.

It is disclosed' by the record that the respondent brought an action in the court of common pleas against Thomas Hay to set aside said judgment on the same ground disclosed in the motion papers, which action was pending when this motion was heard and decided. This'fact is conceded. ■ The respondent had no right to prosecute concurrent remedies at the same time in different courts for the same relief. Had he desired to obtain relief by motion he should have discontinued his action, and the pending action is a defense to this motion.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.


author: O’Brien, J. Van Brunt, P. J.

text:
    New York and Long Island Bridge Company, Resp’t, v. Lenox Smith et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Statutes—Construction.
    Where there is room for two constructions of a statute, both equally obvious and equally reasonable, the court must, in deference to the legislature of the state, assume that it did not overlook the provisions of the constitution, and designed the act to take effect.
    2. Constitutional law—Right to lay railroad tracks.
    The provision for the transportation of vehicles of every description in such a manner as shall seem most desirable, does not authorize laying a railway for that purpose.
    3. Statutes—Statement oe subject in title.
    An act naming but one object in the title hut providing for two, where the latter provision is not interdependent on, or inseparable from, the former, may he held constitutional as to the one named in the title.
    4. Constitutional law—Appropriating public property to private use.
    An act granting the use and occupation of land is not an appropriation of it tor public use, within the meaning of section 9, article 1 of the State Constitution.

      5. Evidence—Judicial notice.
    Courts will not take judicial notice of title to lands below low water mark in the city of New York.
    6. Bridges—Railroad.
    A bridge company, constructing a bridge connecting two cities, may, under chapter 225 of 1893, lay and operate a railway thereon.
    Appeal from a judgment of condemnation and an order appointing commissioners of appraisal.

      DeLancey Mcoll, for app’lts; Julien T. Davies, for resp’t.
   O’Brien, J.

The order appealed from by the,defendant Smith was entered in this condemnation proceeding upon the decision of a referee in favor of the plaintiff petitioner, made upon the interposition of an answer by the defendant Smith, the other defendant, Slcelly, having failed to answer. The premises owned by the appellant which in this proceeding it is sought to appropriate are on the easterly side of Third avenue, fifty feet north of Sixty-Fourth street. The petition alleges the corporate creation and-existence of petitioner, the approval of its plans by the secretary of the war under the act of congress of March 8, 1887, its object, viz.: the construction and maintenance of a bridge over the East river between New York city and Long Island city, the necessity of the acquisition and use of appellant’s property for a terminal station of the railroad tracks, and “that the preliminary steps-required by law have been taken to entitle it to institute this proceeding.” As defenses the answer alleges: First, a forfeiture of petitoner’s franchises - by nonuser; second, a forfeiture for failure to comply with the provisions of the various acts of the legislature; third, a failure to comply with the act of congress giving the right to construct the bridge as to the time of commencing work; fourth, that the appellant’s premises were not necessary for the construction or support of the bridge which the petitioner was authorized to build; and, fifth, that the petitioner is building a bridge for railroad traffic without legal authority. As shown by the petition, the bridge company is a corporation created by and existing under and by virtue of the acts of 'the legislature of the state of New York, being chapter 395 of the Laws of 1867, and the acts amendatory thereof and supplementary thereto, namely chapter 437 of the Laws of 1871, chapter 426 of the Laws of 1879, chapter 392 of the Laws of 1885, chapter 411 of the. Laws of 1892, and chapter 212 of the Laws of 1894. In 1889 the company instituted condemnation proceedings to take certain lands of the city on Blackwell’s Island fo'r its purposes. The city defended, and the' proceedings were dismissed at special term, on the ground that the act of 1885 attempted to confer the power to lay down railroad tracks, in violation of section 18 of article 3 of the constitution, and that the grant was therefore void. Upon appeal to this court that view was sustained, and the order dismissing the proceedings affirmed. In re New York & L. I. Bridge Co., 54 Hun, 400 ; 27 St. Rep. 503. As the status and right of the company at that time to comdemn lands were then determined, we may profitably refer to what was therein held, as the necessity is thus avoided of considering the legislation which up to that time had been passed, and we obtain certain rules for our guidance in constructing the subsequent legislation of 1892 and 1894.

It was therein held that at the timePhe act of 1885 was passed the petitioner’s charter had been forfeited by its failure to comply with chapter 426 of the Laws of 1879, which, provided that the construction of the bridge should be commenced “ under contract for the entire structure, within two years” from May 30, 1879, before which time nothing was in fact done by the petitioner towards such construction. By the act of 1867 the penalty for a noncompliance therewith was declared to be that “ this act and all rights and privileges granted hereby shall be null and void.”' Held,, that the condition contained in the original act of 1867 extended and attached itself to the case of a noncompliance with the act of 1879, enlarging or extending the term of the first-mentioned act; that while the legislature had power to waive the forfeiture, it had not the power, under the guise of this waiver, and under the semblance of reviving the forfeiture, to confer distinctly new rights never before "thought of, namely, the right to complete the bridge for railway travel; that the right conferred by the act of 1885 to build the bridge in question for railway travel plainly implied a grant of the right to lay down railway tracks, and was thus a violation of the constitutional prohibition against the legislature passing a private or local bill granting to any corporation the right to lay down railroad tracks, etc. Presumably to cure-the defects and overcome the objections pointed out by this decision, the petitioner again applied to the legislature, and obtained (chapter 411 of the Laws of 1892) an amendment of section 10 of the original act, which provided that the bridge should be-“so constructed as to provide for the accommodation and transportation of passengers and vehicles of every deserition, for the transportation of freight, and for such other purposes and in such manner as shall in the judgment of the said company seem most desirable.” By this act the bridge was to commence east of Park avenue, within one mile of the Grand Central Depot, as to its southern arm or approach, with a northern arm “either north or sonth of the Harlem river, with full authority to the said company to locate and build any other bridges necessary to such approach or approaches.” The act required that the construction of the bridge should be commenced before March 3,1893, to which date the time for the commencement of the construction was extended in terms by the language of the act. It was also provided that the bridge should be completed before March 3, 1900. Section 6 permitted the company “ to extend the approaches from its central termination in New York along, over, through and across First or Second avenue for the southerly arm, * * * and also along, over, through and across First or Second avenues to and across the Harlem river and beyond, so as to connect all existing roads of whatsoever nature, including the location and construction of any bridge over the said river such ag may be necessary for its purposes." The act of 1894 (chapter 212), added a new section to the act of 1892, declaring that nothing in the act should be construed as authorizing the laying of railroad tracks in the streets, and requiring that all openings made by the corporation in the streets be done under the supervision of the depart-' ment of public works. In 1887 congress passed an act authorizing the construction of the bridge; and on March 14, 1894, another act of congress was passed, modifying the requirement of the original act as to the height of the bridge. By chapter 225 of the Laws of 1893, which was a general law, the right to lay tracks and operate a railway by any company incorporated for the purpose of constructing a bridge connecting any city of more than 1,000,000 of inhabitants with any other city in this state was conferred. Claiming under these laws the present right to build the bridge and lay down and operate a railway thereon, the respondent commenced this proceeding to acquire the appellant’s land for its purposes.

As to work upon the bridge, the first actual construction was claimed to have been done in the latter part of May, 1888, consisting of the purchase of a schooner-load of stone, which was placed as part of the foundation for one of the piers within fifty feet of the wall across the west side of Blackwell’s Island. What was further done is thus testified to by one of the witnesses:

After the stone was deposited on May 28th, I went on, and within a year after that spent a very considerable amount of money on the bridge" in engineering and surveying, and printing, publishing, engraving, traveling, for engineers and others. I estimate that the money I had spent from the beginning up to the end of the first year after, commencing in 1888, was something like $117,000.”

One of the defendant’s witnesses testified that in the month of June, 1888, he had gone to the place indicated, and that he did not see the stone claimed to have been deposited in May. It is contended that this court in the former opinion (54 Hun, 400; 27 St. Rep. 503), decided that the placing of the cargo of stone in position was not a commencement of the work. How far this is sustained is to be determined from the language of the opinion, which, upon this point says :

“ The petitioner’s proofs fail to show anything more than preparation prior to the 30th of May, 1888, while the affidavits read on behalf of the city gave the 7th of June, 1888, as the precise date when the first cargo of stone was placed upon Blackwell’s Island by any representative of the petitioner.”

It will thus be seen that the court did not hold that the placing of the stone was not the commencement of the work, but merely decided that the proof did not establish that the stone was placed prior to the 30th day of May, 1888. Such proof was then in the form of affidavits, while here it is by the oral testimony of witnesses ; and we see no reason for disturbing the conclusion of the referee, who, upon the evidence before him, held that the construction of the bridge “ was commenced in due season.” Thai the legislature could extend the time for the commencement of the work, and waive the forfeiture, was in the former proceeding distinctly held by this court, and by the very language of the act of 1892, as said, such time was in terms so extended; so that we now have the further proof before the court that on the 1st, 2d, and 3d days of March, 1893, certain engineers and laborers in charge of a contractor went on land at -the foot of Bast Sixty-Fourth street, situated on what is known as the “proposed exterior street,” and commenced work.- At that time the plaintiff had paid to the commissioners of the sinking fund of the city of New York the sum óf $5,000 on account, and thereby purchased from the city the land and the land under water necessary to the location of its New York piers. The piers had been previously located by engineers, and on that day they completed their lines, and designated to the workmen the location of.the piers; the workmen stripped off the earth within the lines designated down to the rock, preparatory to placing the rock for the foundation of the .piers. The space cleared was about fifteén by thirty feet. Thereafter the company continued to work at construction, and built three large coffer dams at the places where its piers are to be placed. It has all the necessary land for the location of its pier on the Long Island side, and has paid the additional amount due the city for the land, namely, $10,300, and is in possession of these four parcels of property, and is proceeding with the actual construction of the necessary piers.

.Regarding what has been done, therefore, in the.light of the legislation in favor of this ' company as evidenced by the acts of 1892 and 1894, the dose of People v. Manhattan Co., 9 Wend. 351,. is in point: * ■ ■ ■

“ If (requirements were) not complied with,'then it could-not-be at all. The forfeiture, or the right of the state to enforce the forfeiture, was then complete; and the argument is that as they have since, in repeated instances, in solemn and formal acts of the legislature, recognized. the defendants as an existing corporation, they are now estopped from" setting up the forfeiture. The doctrine upon which this argument is founded is a familiar one in law.” ' " 0 -

It is claimed by appellant that the vice inherent in the act of 1885-granting to the petitioner the right to lay down railroad tracks is present in the act of 1892; that the terms of the "act providing that-the bridge “shall be so constructed as to provide for the transportation of passengers and vehicles of every-description, for the transportation of freight, and for such other purposes and in such manner as shall in the judgment of the company seem most desirable,” confer the same power to lay down railroad tracks as was found in the act of 1885. In the latter act it was provided that the bridge-should be “built for railway, carriage and foot travel.” As shown, the language of the act of 1892 is entirely different, "and as it was undoubtedly passed for the purpose of meeting the very objection which was made to the act of 1885, unless it appears that such power to lay railroad tracks was conferred, it should not be implied from inapt or doubtful language; norsh'ohld a construction be placed upon it, if it can be avoided, which" would render it unconstitutional. In other words, it is not disputed that the act of 1892 should feceive an interpretation which, 'if consistent with the intent of the legislature would conform it to the constitution; while it is equally true that the intent of the legislature is first to be determined from a consideration of the whole act, and such other facts as properly may. be referred to, and, if then appears that such intent is- obnoxious to the constutional inhibition, the act must fail, the rule being that: • ■

Where there is room for two constructions of a statute; both equally obvious and equally reasonable, the court must, in deference frothe legislature of the state, assume that it did not overlook the provisions of the constitution, and designed the act to take effect. Our duty, therefore, is to adopt the construction which, .without doing violence to the fair meaning cf the words used, brings the statute into harmony with the provisions of the constitution." - County Sup'rs v. Brogden, 112 U. S. 268. See, also, People v. Supervisors, 17 N. Y. 241; People v. Albertson, 55 id. 54.”

We think, therefore, that the law of 1892 does not give authority, to the plaintiff to lay down railroad tracks upon its bridge.

Another objection made to the act of 1892 is that it offends against section 16 of .article 3 of the constitution, which provides that “ no private or local bill which may be passed by the legislature shall embrace, more than one subject, and that shall be expressed in the title.”. Chapter 411 of -the Laws of 1892 is entitled “An act to further amend chapter 395, Laws 1867, entitled An act to incorporate the New York and Long- Island Bridge Com • pony, for the purp&se of constructing and maintaining a bridge over the Bast- river _ between the city of New York and Long Island.’ ” On turning to the act, however, we find provisions, not alone for a bridge over the East river, but for a most extensive system of so-called “approaches” reaching many miles to the north, and also for connections with other railroads, which necessarily implies the power to build approaches in other directions: and express authority is given for the construction and maintenance of a bridge or bridges across the Harlem river. We thiuk that such provisions in the act are -unconstitutional, because the only subject designated, either by the title itself or by a reference to the act of 1867, is the construction- and maintenance of a bridge across the East river within a certain locality; and it is that alone which, by a reading of the title, would be suggested to the members of the legislature, or to the public generally. And, while the necessary approaches are authorized, it cannot be successfully contended' that indefinite lateral extensions, including bridges, over the Harlem river", are a part of such necessary approaches. The constitutional prohibition was directed against this very thing of a private or local bill with a title which embraced one subject, and under that guise conferring other and different grants. These, however, are entirely separable and severable from the main and express purpose of plaintiff's incorporation, and can be declared void .without impairing the right which has been conferred upon the petitioner to build a bridge across the East river. As said by Judge Cooley in his work on Constitutional Limitations:

“ If by striking from the act all that relates to the object not indicated in the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional. The principal questions in that case will, therefore, be whether the act is not truly broader than the title, and, if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected, and leave a complete and sensible enactment, which shall be capable of being, executed.” People v. Briggs, 50 N. Y. 555; In re Van Antwerp, 56 id. 261; In re Improvement of Sackett Street, 74 id. 95.

Construed in the light of this rule, it will be seen that the provisions relating to the northern approach which include, among other things, the right to build other bridges over the Harlem river, are not interdependent upon or inseparable from or connected with the subject mentioned in the title, namely, the building of a bridge across the East river. That this is so is shown by a reference to the original act of 1867, in which there is nothing said about such an approach, but authority is given to build a bridge over the East river; and the plans which form the “Plaintiff’s Exhibit Profile and Location,” approved by the secretary of war in 1867, are the plans for the bridge which it would appear the plaintiff is now seeking to construct, whole, entire, and independent, and providing for no northern arm or approach. While, therefore, we think that the power has not been conferred to build a northern arm and bridges over the Harlem river, and that that portion of the act is unconstitutional, it does not follow that the whole act is thereby rendered invalid; but, as the two subjects are entirely separable, and are not interdependent, the one which is valid and constitutional, and which was concededly the subject referred to in the .title, should be upheld.

Another objection taken is that the act of 1892 is obnoxious to section 9 of article 7 of the constitution, which reads:

“ The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.”

In the volume of Session Laws for the year 1892, issued under the certificate of the secretary of state, this act is stated to have been “ approved by the governor May 2, 1892. Passed, three-fifths being present.” And the certificates of the presiding officers of the senate and of the house, attached to the original bill on file in the office of the secretary of state, also show that only three-fifths were present both in the senate and in the assembly. The act authorizes the corporation “ to use and occupy so much of the lands under water of the East river, not exceeding in parallel length of frontage on each shore of each channel two hundred and fifty feet, as may be necessary for the location and the construction of piers and the anchorage of the bridge to be ..constructed by it according to the plans approved by the secretary of war, * * * provided that no such pier or anchorage shall extend into the said river beyond the established pier or bulkhead line.” Upon this the contention is based that, by a bill which has not received the assent of two-thirds of the members elected to each branch of the legislature, the property of the state is given for private or local purposes. In the discussion it is assumed that the property referred to belongs to the state; but, in addition to the question whether the defendant can raise this point, the further question is presented as to whether or not the court will take judicial notice of the fact that the lands under water along tne Bast river are the property of the state. There is no sufficient proof that the title to these particular parcels of land under water is in the state, the evidence being that the plaintiff corporation is in actual possession and occupation as to three of the piers by purchase of the right from the commissioners of the sinking fund, nnd holds the Long Island pier by purchase and a deed from the riparian owners. Unless, therefore, we assume without proof that the state owns such land, and that by the act it was granted for private or local purposes without the necessary vote of the members of the legislature, the question is not presented. If, however, we assume that the state owns such lands, then the cases of People v. Commissioners of Highways, 54 N. Y. 276; People v. Allen, 42 id. 376 ; and People v. Board of Sup’rs, 43 id. 10,—would be authorities against the validity of such a grant. On the other hand, we have the case of Saunders v. N. Y. C. & H. R. Railroad Co., 144 N. Y. 75 ; 63 St. Rep. 53, in which it is said:

“ While the state holds the title to lands under navigable waters in a certain sense as trustee for the public, it is competent for the supreme legislative power to authorize and regulate grants of the same for public or such other purposes as it may determine to be for the best interests of the state; and that the land which a.railroad corporation acquires in this state, though, it may be technically called a fee, is for the use as a public highway, and this is a use for the benefit of the public, though, perhaps, the particular purpose for which the grant was made is not very material.”

The distinction between the Saunders Case and those relied upon by appellant would seemingly lie in the fact that, while upland property belonging to the state could not be granted, it was competent for the legislature by a three-fifths vote, instead of a two-thirds vote, to give land under water to different railroad companies upon the grounds : First, that such land under water was not considered the property of the state ; and, secondly, because the property so given was neither for a local nor a private purpose. It is unnecessary, however, for us to reconcile the attempted distinctions between these cases, because, if there was nothing else but the authorities, assuming that the proper foundation to present the question had been laid by showing that the lands under water were the property of the state, we should be inclined to the view taken in the cases relied upon by the appellant in holding that, being property of the state, it could not be granted without the assent of two-thirds of the members elected to each branch of the legislature. As a matter of fact, it has been made to appear by proof that two-thirds of such members voted for the grant, and upon this head the question is presented as to whether the evidence was competent. As said in the Session Laws, the certificate is to the effect that it was “ passed, three-fifths being present,” and a certified copy of the certificates of the presiding officers of the senate and the house attached to the original bill on file in the office of the secretary of state show only the fact that three-fifths were present. Against defendant’s, objection, the plaintiff offered certified copies of the journal of the senate and assembly, containing the record of the final passage of the act, and a recital of the names of the members in each house voting aye and no. Such evidence, if competent, showed that the bill received the actual assent of more than two-thirds of the members, of the senate and assembly. The question is whether such evidence is competent. It is provided that “ no bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house unless so certified by the presiding officer of each house.” 1 Rev; St. p. 156; 1 Rev. St. (8th ed.) p. 470. See, also, sections 2 and 3 of chapter 306 of the Laws of 1842. The act to incorporate the bridge company, as it appears in the Session Laws, as already said, has immediately under its title the statement: “ Approved by the governor May 2, 1892. Passed, three-fifths being present." In the case of Rumsey v. N. Y. & N. E. Railroad Co., 130 N. Y. 88; 40 St. Rep. 583, the certificate of the presiding officer of the assembly was : “ This bill was read the third time, and passed, two-thirds of all the members elected to the assembly being present on its final passage.” It was said (headnote) that:

“ It seems that under the provisions of the act of 1842 (chapter 306, Laws 1842), requiring the secretary of state, when an act as published in the Session Laws is certified ‘ as having been passed by the assent of two-thirds of the members elected to each house,’ to state in connection with it as published in the Session Laws that it was passed ‘ by a two-thirds vote,’ and that this statement shall be presumptive evidence that the bill was certified as having been so passed, the presumption thus created may be overcome by the production of the original certificate showing it was not so passed. But while, under the Revised Statutes, no act shall be deemed to have been passed by a two-thirds vote unless so certified by the presiding officer of each house, a defective certificate, which fails to state either way,—i. e., as to whether or not. the act was passed by a two-thirds vote,—is not conclusive to overcome the presumption created by the statement of the secretary in the Session Laws. In such case the journal of the house whose presiding officer has made the defective certificate may be resorted to for the purpose of determining the fact. It seems that it would not be proper to go back of the certificate, if in due form, for the purpose of impeaching it.”

The provisions of the present law on this subject are contained in chapter 682, art. 2, §§ 40, 44, Laws 1802, and are as follows :

“ Sec. 40. Certificate of Presiding Officer.—Upon the passage of a bill or concurrent resolution by either house the presiding officer thereof shall append to such bill or resblution a certificate of the date of its passage by the votes of two-thirds of all the members selected to such house, or in the presence of three-fifths of such members, as the case may be. Fo bill shall be deemed to have so passed unless certified by the presiding officer, which certificate to such effect shall be conclusive evidence thereof.”

“ Sec. 44. Statement in Session Laws as to Passage of Law.— In the publication of every law the secretary of state shall omit the certificate appended thereto, but shall caused to be inserted immediately under the title of the law a statement to the effect that it became a law upon the properly specified date with or without the approval of the governor, or notwithstanding his objections, as the case may be, and adding the words: ‘ Passed by a two-thirds vote;’ or 1 Passed, three-fifths being present,’ in accordance with the certificates appended to the original bill such statements shall be presumptive evidence that the original law was certified by the presiding officer of each house acordingly.”

If it is competent for the legislature to enact a rule of evidence, it has seemingly prescribed one by section 40, by which the inquiry into the number of votes .cast for any bill must be conducted, as declared, by resort to only one source of information, namely, the original act and certificates, or the printed statute book, when accompanied by the proper statement. Undoubtedly, where there is a defect in form, clerical error, or irregularity, it leaves the matter open to inquiry ; and in the case of a defective certificate it would seem but reasonable to permit'a resort to the journals of either house for the purpose of determining the vote by which a bill was passed. Were, we called upon to determine the question here, where no defect, irregularity, or error is shown in the statement in the Session Laws or the certificate of the presiding officer, we should be inclined to adopt the view contended for by appellant. But it is unnecessary for us to decide it; and, therefore, with this intimation, we leave it until it is directly presented.

Upon this question we prefer to rest our decision upon the ground that by the act of 1892 there is no appropriation of public moneys or property for a local or private purpose. It is true that the act authorizes the use and occupation of lands under the water of the East river for the location and construction of piers. It is also provided that “the bridge shall conform strictly, as to * * * the location of its piers and anchorages,” to the plans approved by the secretary of war. Of the four main piers of the bridge, three will rest entirely on land below the low water mark of the East river, and the fourth will be partly above it. It is insisted that this land belongs to the state of Few York, in virtue of its sovereignty, and that it is appropriated by this act. We have already called attention to the fact that there is no proof that this land belongs to the state, and that we cannot take judicial notice of that fact We know that originally the land between high and low water did belong to the state, but in respect to such land within the limits of the city of Few York, the city has claimed and asserted the right to it, and we think we could show, if necessary, • that the state has acquiesced in such claim. But it is urged that the grant goes to the extent of permitting the use of lands under water beyond the low-water mark, and, thus being under the navigable waters of a stream, such land is the property of the state, the grant of which could not be given without the assent of the requisite two-thirds of the members of the legislature. Our purpose in referring to'this matter is to show that the question of title is one which does not lie in conjecture, and cannot be presumed or taken judicial notice of, but should be proved. The question of whether the lands under water of the East river, either between high and low water or below low-water mark, belonged to the state or the city, in our view, is immaterial, because we do .not consider the act of 1892 as a grant of any property rights. It certainly would not be seriously contended that in granting the right to place the bridge between certain streets and in certain localities the intention was expressed on the part of the legislature to grant the property within the limits fixed. So here the authority to use and occupy so much, of the lands under water of the East river,” etc., is only the,conferring of power to do what was neees^ sary to be done in connection with the construction of the bridge, coupled with a restriction that the bridge 'Corpoi’ation should not go beyond the exterior pier line, thus locating and defining the situation of the piers, leaving the corporation to proceed in the manner provided by statute for obtaining of property and whatever other right are necessary and requisite for the location and construction of its piers.

It is further insisted by appellant that, this corporation being subject to the law regulating the operation of street railroads, the grant of the power to extend the approaches between First and Second avenues is void because in conflict with that section of the constitution (section 18, art. 3) which requires the consent of property owners and of the local authorities, and that it has also failed to comply with the requirements of section 38 of the rapid transit act (Laws 1892, ch. 102), respecting the consent of the local authorities. This latter section, in substance, provides that if a company, authorized to construct as part of its bridge an approach running in an easterly and westerly direction, should substitute in lieu' thereof an elevated railroad, it must comply with the provisions of the rapid transit act by obtaining the consent of the local authorities and the property owners. We think it unnecessary to dismiss these objections, because the plaintiff is not amenable to the provisions of acts affecting either street or elevated railroads. It is true, as we have seen, that by a general and separate act (chapter 225 of the Laws of 1893) any company incorporated for the purpose of constructing and maintaining a bridge or bridges over any river, etc., connecting any city containing more a million of inhabitants with any other city in the state, is empowered to lay tracks and operate a railway on said bridge or bridges. If the petitioner has not the right to lay down tracks and operate a railway upon the bridge pursuant to this law, then it could not take the land of the defendant, which, as the proofs show, is needed for the purposes of the proposed railway. In its original charter of 1867, the eastern terminus of the bridge did. not rest upon nor extend to any other city, the municipality of Long Island City having been created by chapter 719 of the Laws of 1870. This we do not regard as fatal to plaintiff’s right to lay down railroad tracks upon its bridge, for considering that since 1870 the bridge comtemplated would necessarily connect the city of New York with Long Island City, the petitioner was brought within the provisions of the act of 1893, and obtained the right to lay down tracks upon its bridge.

We have gone over the record of this proceeding bristling with constitutional questions, which have been pressed upon our attention by the appellant with earnestness and ability; but while some of them are serious, we do not regard any as fatal to the judgment and order appointing the commissioners. In addition, there were many subsidiary questions which we have not referred to, because, in our opinion, they posses no merit. Where, as here, the legislature has repeatedly expressed its intention of conferring the right upon the plaintiff to construct a great public improvement, and this has been supplemented by acts of congress, it is not. the duty of the court to take microscopic views of the questions presented, to the end that it may find some means ■ of destroying or impairing the validity of the grant which has been thus conferred, but it is óur duty, in a broad and liberal spirit, to carry out, as far as the same can be done consistently with the constitution and the laws, the legislative will; and where, as here, the forfeitures for failure to comply with certain conditions have been waived by subsequent legislative grants, we think that in the determination of the main question, upon the merits, as to the right to construct the bridge, the legislative intent should have great weight, and, if possible, should be given effect. Having concluded, therefore, that the objectionable and unconstitutional clauses in the act can be separated so as not to destroy the main purpose, we see no reason for disturbing the conclusion reached by the referee in holding that the plaintiff had the right to maintain this proceeding, and the order and judgment entered upon his decision accordingly should be affirmed, with costs.

Parker, J., concurs in result.

Van Brunt, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice O’Brien in the case at bar. There are, as it seems to me, many difficulties in the way of allowing the petitioners to exercise the right of eminent domain. It is, however, sufficient to advert to but one, and that is the constitutionality of the act of 1892 amending chapter 395 of the Laws of 1867. In 1889 the company commenced condemnation proceeding to take certain lands of the city on Blackwell’s Island. The city defended these proceedings, and it was held by both special and general terms that the act of 1885 which amended the said act of 1867 attempted to confer the power to law down railway tracks in violation of section 18 of article 3 of the constitution, and the grant was therefore void. The language of the act of 1885 was :

“ Such bridge shall not be less than 150 feet elevation above average mean tide at the middle of each channel of the river and shall be built for railway, carriage and foot travel.”

The language of the act of 1892 is:

“ Such bridge shall not be less than 150 feet elevation above mean high water at the middle of the channel of the river and shall be so constructed as to provide for the accommodation and transportation of passengers and vehicles of every description, for the transportation of freight and for such other purposes and in such manner as shall in the judgment of the said company seem most desirable.”

It seems to me that the language of the act of 1892 would not only authorize the doing of everything which could be done under the, act of 1885, but everything, in addition thereto, which might seem to the company most desirable. It is difficult to conceive language which could have a broader scope than that which was employed in the act under consideration. The company are to build the bridge for the transportation of passengers and vehicles and freight, and for such other purposes and in such manner as in the judgment of said company may seem desirable. If the company did construct a railway bridge under the powers attempted to be conferred by this act, and their right so to do was sought to be questioned upon the ground that the language of the act did not confer such power, how is it possible that a court could determine that such power was not conferred ? It is manfest, if the question was presented to the court in that form, that there could be but one construction placed upon the act, namely, that the company had the authority to transport passengers and freight, by means of a railroad, across the bridge. They must build the bridge to transport vehicles of every description, and such vehicles are to be'transported in such manner as to the bridge company shall seem most desirable., A railway car is a vehicle of some description, and the transportation of such a vehicle upon rails or a railroad is the transportation of such vehicle in some manner; and, if that manner is considered most desirable by the company, it is authorized by the terms of this act. Instead of the amendment of 1892 obviating the objections which were substantiated to the act of 1885, it seems to me it only aggravated such objections by the greater breadth of the language used.

In respect to the claim which is made that the act of 1893 has conferred upon this company the power to erect a railroad bridge, while such act seems to me clearly to be within the restrictions of the constitution, although there are some decisions which have held to the contrary, yet that act cannot breathe constitutionality into the act of 1892, the provisions of which act conferring this power are plainly within the constitutional prohibition. ' The petitioners therefore have no right to exercise the franchise attempted to be conferred by the act of 1892.

I think the order appealed from should be reversed, and the proceedings dismissed, with costs of this court and of the court below.


author: Van Brunt, P. J.

text:
    National Wall Paper Company, Resp’t, v. Robert F. Hobbs, App'lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1896.)

    Contracts—Restraint of trade—Who mat question.
    An agreement to refrain from engaging in a particular line of business cannot be held to be illegal, as in general restraint of trade, nor can it be avoided as a part of a coriupt and wicked conspiracy against the law and public policy of this state by one who has received and retained a valuable consideration for it.
    Appeal from an order continuing a temporary injunction.

      A. B. Boardman, for app’lt; S. Untermeyer, for resp’t.
   Van Brunt, P. J.

— This action was brought for the purpose of restraining the defendant from the violation of an agreement which it is alleged he entered into with the plaintiff, whereby he agreed, for a consideration received by him, that he would not, directly or indirectly, engage in, or become associated with, any business of manufacturing, buying, or selling wall paper, decorations, furnishings, or merchandise of a similar character, as principals, agents, employees, or in any other relation or capacity, or as stockholders, directors, trustees, agents, officers, or employees of any corporation other than the plaintiff, in any state or territory of the United States except the state of Washington. It appears and is conceded upon the part of the defendant that he was making preparations to enter as employee into the business of a rival corporation. The injunction obtained herein was continued upon motion, and from order continuing the injunction this appeal is taken.

Since the decision of the ease of Diamond Match Co. v. Roeber, 106 N. Y. 473; 11 St. Rep. 47, such a contract as above referred to cannot be held to be illegal, as in general restraint of trade. It is urged, however, upon the part of the defendant, that the contract which was entered into by his firm and himself with the plaintiff was void, because it was part of a corrupt and wicked conspiracy against the law and public policy of this state, in that it was a combination of manufacturers, for the purpose of putting up the price of goods and down the price of wages. In view of the fact that the defendant retained the price which was paid for his corrupt and wicked agreement, it is difficult to see how he can claim, being a party to the instrument, and having received that which he considered an adequate consideration for the restraints which were put upon his volition, that such restraint should be removed, and he be permitted to enjoy the fruits of what he claims to be his unlawful agreement. We do not think that the defendant is in a position to attack this contract, certainly not with its fruits in his pocket.

The order should be affirmed, with $10 costs and disbursements.

All concur.


author: Yan Brunt, P. J.

text:
    National Shoe and Leather Bank of the City of New York, Resp’t, v. Amelia F. Baker et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Equity—Fraudulent conveyance—Reference.
    An action by a creditor to set aside a fraudulent claim, made by a dec'eased insolvent debtor before the creditor’s claim is reduced to a judgment, may be referred, where a long account must be examined, and no intricate questions of law are involved.
    2. Contract—Tort.
    A complaint, in such action, which alleges an indebtedness arising out of a fraudulent appropriation of money on the part of the decedent, does not sound in tort.

    Appeal from an order of reference.

      B. F. Tracy, for app’lts, J. L. Bishop, for resp’t.
   Yan Brunt, P. J.

This action was brought pursuant to chapter 487 of.the Laws of 1889, which provides that any creditor of a deceased insolvent debtor having a clairmor demand against the estate of such deceased debtor, exceeding in amount the sum of $100, may, in like manner, for the benefit of himself and pther creditors interested in the estate or property of such deceased debtor, disaffirm, treat as void, and resist all acts done and conveyances, transfers, and agreements made in fraud of the right of any creditor or creditors by such deceased debtor, and for that purpose may maintain any necessary action to set aside such acts, conveyances, transfers, or agreements; and for the purpose of maintaining such action it shall not be necessary for such creditor to have obtained a judgment upon his claim or demand, but such claim or demand, if disputed, may be proved and established upon the trial of such action. The complaint alleges an indebtedness by the deceased insolvent in the sum of at least $100,000 for moneys received by him belonging to the plaintiff over and above the amount of any credits or set-offs to which he was entitled ; and then alleges the purchase by the deceased insolvent of real estate, and the taking of the title thereto in the name of the defendant Merritt, and the delivery by Merritt to the deceased insolvent of a conveyance thereof with the name of the grantee in blank, and with authority to insert the name of any person as grantee, and that the said deceased insolvent inserted in said conveyance the name of the defendant Baker. The plaintiff served a bill of particulars consisting of a very large number of items of charges and credits. The defendant thereupon answered, denying upon information and belief the indebtedness and the fraudulent character of the conveyance, and also setting up the statute of limitations. The motion having been made to refer the case upon the ground that the trial would involve the examination of a long account, such motion is granted, and from the order thereupon entered this appeal is taken.

This order is attacked mainly upon the ground that there is no account to be examined, which is the direct and immediate object of this action. In this, we think, the learned counsel for the appellant is in error. This action is of a dual character. First, it must establish the debt, and then it is entitled to the equitable relief. It is different from the ordinary creditors’ actions, because they are based upon judgments, and in such actions the question of indebtedness has been previously determined. But in the action in the case at bar the whole liability is open to discussion and investigation, and the first question to be determined is whether the deceased was indebted to the plaintiff, and if so, in what amount. From the pleadings it is apparent that this will necessarily involve the examination of a large quantity of items both of charges and credits bringing the case, therefore, within the ordinary rules applicable to referable cases. Merely because there are other issues to be tried does not deprive the case of its referable character. It is only where there are questions of law of great intricacy that the court will refuse to refer even where a long account must necessarily be examined. In the case at bar there are no intricate questions of law; there are only questions of fact; the primary one being the fact of indebtedness upon the part of the deceased, and the proceeding depending upon the establishment of this issue in favor of the plaintiff.

It is urged that the amount of the indebtedness is no moment; that it makes no difference whether amount claimed was $1,000, $100,000, or $1,000,000. But it is of some moment that some claim for some amount is established, and in order to establish a claim for any amount, it will be necessary to examine and substantiate the items of debit and credit referred to -in the bill of particulars. The case of Read v. Lozin, 31 Hun, 286, seems to be contrary to this view. But we think that that case is irreconcilable with the case of Rowland v. Rowland, 141 N. Y. 485; 57 St. Rep. 595, in which it is held that, where an accounting is' necessary, even in an action in equity, and no difficult question of law is involved, the court has a right to order a reference. It is urged that, the accounts not arising out of contracts between the parties the action is not referable; and that actions sounding in- tort are not referable. It is clear from the character of the complaint that there is no claim is the nature of tort. It contains simply an allegation of an indebtedness arising out of the fraudulent appropriation of money upon the part of the deceased. The plaintiff has the right to proceed as if upon contract.

The order should be affirmed, with $10 costs and disburse- • ments. All concur.


text:
    Max Cohen, as Administrator, etc., Resp’t, v. Herman Jarecky Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Pleading—Complaint—Causes separately stated.
    Where the causes of action alleged in a complaint are not identical, the defendant is entitled to have them separated in such manner as to raise the question of misjoinder or sufficiency by demurrer.

      Appeal from an order denying a motion to make complaint more definite.

      A. L. Fromme, for app’lt; A. Levy, for xesp’t.
   Yan Brunt, P. J.

This action was brought to recover damages against two of the defendants as druggists, and one of the defendants as a physician. The allegation of complaint is that the defendant Jarecky was employed as a physician, and that the defendants prescribed, prepared, compounded, and furnished a certain medical preparation or medicine to be administered to the ■deceased, and which was by the direction of the defendants administered to the deceased, and that the defendants so negligently prescribed, prepared and compounded such medicine as to mix therewith a certain deadly poison, unknown to either deceased or his parents, and defendants, knowing that such medicine was to be administered to an infant of tender years, did carelessly, negligently, and wrongfully prepare a certain mixture containing a deadly poison, fatal to human life, and did negligently and wrongfully direct, order, and prescribe that the same be administered to .said deceased. It is not alleged in the complaint that the defendant druggists had anything to do with the formulation of the prescription. Their sole dereliction, if any, was in the preparation and composition of the prescription. It is alleged apparently that the defendant physician participated in the preparation and compounding of the prescription, yet it is not certain that it was the intention of the pleaded so to allege. It is clear, however, that no cause of action is alleged against the druggists for negligence in the formulation of the prescription, and they have no concern with any liability which the defendant physician may be under because of such negligence, if it existed. Consequently, the causes of action against the defendants are not identical, and the defendants are entitled to have them separated in such manner as to raise the question of misjoinder or sufficiency by demurrer.

The order should be reversed, with $10 costs and disbursements and the motion granted to make the complaint more definite and certain, with $10 costs to the separate appellants..

All concur.


author: Parker, J.

text:
    United States Cordage Company, Resp’t, v. William Wall’s Sons Rope Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Contract—Restraint of trade.
    A covenant not to engage in any business by a vendor, made in connection with a sale of his business and good will, is valid and enforceable.
    2. Injunction—Trade name.
    A corporation is entitled to an injunction restraining ,a general member of a firm which sold out their business and good will from doing business under their own name, where they covenanted not to engage in such business within the limits of the United States except as an employe of the vendee.
    3. Same—Nominal partners.
    Where a general partner executes a contract, on behalf of his firm, to convey the property and good will of the firm and not to engage in the Arm’s business, persons who are nominal partners only, as trustees of a deceased partner, are not prohibited by such contract from engaging in the same business in their own- names, nor from soliciting business from former customers of such Arm.
    Appeal from an order granting an injunction pendente lite.

      Adrian H. Joline, for app’lt; John L. Cadwalader, for resp’t.
   Parker, J.

The order under review enjoins the defendants, during the pendency of this action, “ from using or displaying the name William Wall’s Sons,’ either separately or conjunctively with any other words, and from using the name William Wall’s Sons Eope Company,’ or either of such names, upon any signs, cards, bill-heads, or letter-heads, or otherwise, or from any way holding themselves out as successors to the firm of William Wall’s Sons and from in any manner soliciting business from the customers formerly of William Wall’s Sons.” In support of the motion fat ■an injunction pendente lite the plaintiff caused it to appear, by its motion papers that prior to July 15, 1887, William Wall’s Sons had established a reputation as manufacturers of cordage, and on or about that day such firm, with three other firms engaged in the same business, established the National Cordage Company, a New Jersey corporation, with a capital of $1,500,000, and caused leases of their several plants to be made to such company for ninety-nine years, and at the same time arranged to take back subleases for thirty-eight years each, with two renewals of the several leased plants, and in consideration of the leases caused the entire capital stock to be issued to themselves. After the execution of the leases, the temporary directors resigned, and the representatives of these four concerns became directors, and entered into the management of the joint business as they had before managed their separate business in concert; Frank T. Wall, the active partner of William Wall’s Sons, becoming a director and vice-president In August, 1890, the same individuals continuing in the management, a plan was devised to get a large amount of preferred stock, ánd to divide a still larger amount of common stock among themselves. The foundation for this issue of stock was the alleged necessity of the purchase by the company of the fees of the four properties which had been leased for ninety-nine years, and the procuring of assignments from the several owners of the mills of the good will of the business of the firms and corporations owning them, together with covenants not to engage in the cordage business except for the company. In pursuance of this scheme, the directors, on August 25, 1890, appointed a committee, of which Frank T. Wall was a member, “ to make a careful valuation of the assets looking to an increase of the capital stock.” The committee reported that the capital stock should be increased to the extent of $13,500,000, $5,000,000 of the stock to be preferred and $8,500,000 of the common stock; the preferred stock to be offered to the public for sale, the proceeds to be devoted to the acquisition of the fees of the four leased properties; and that the company, as a part consideration for the proceeds of the preferred stock, should receive the assignments from the several owners “ of the good will of their business, their trade-marks, and covenants not to engage in business except for the National Cordage Company; ” the common stock to be divided among themselves as stockholders, as representing undivided profits. Frank T. Wall, the active member of the firm of William Wall’s Sons, offered the resolutions at the stockholders’ meeting accepting the recommendations of the directors to devote the proceeds of' the 50,000 shares of preferred stock to the purchase of the fees, together with an assignment of the good will of the respective business, trade-marks, and labels, with a covenant not to go into business except with the National Cordage Company. The scheme was subsequently carried out so far as the company was concerned. The preferred stock was offered to the public, and subscribed for, and the proceeds devoted in accordance with the recommendations of the directors and the resolutions of acceptance by the stockholders. The price paid to William Wall’s Sons in cash and preferred stock was $970,579.40. The common stock, amounting to $8,500,000, was turned over to the stockholders. Prior to the passage of the resolutions by the directors and stockholders to which we have referred, and on August 21st, Frank T. Wall, on behalf of his firm, executed an agreement which recited that William Wall’s Sons were about to convey their mill property, with the tools, etc., “ together with the good will of the said business of the said parties of the first part, and the exclusive right of the use of their name therein, and the exclusive right to all their trade-marks and labels as heretofore owned by them, for use, or in fact used, in connection with their said business.” After the adoption of the resolutions no formal transfer was executed by William Wall’s Sons in accordance with the resolutions or otherwise, although the consideration therefore was accepted by them. In May, 1893, the National Cordage Company passed into the hands of receivers, who in due course demanded and obtained from the firm of William Wall’s Sons a deed of the real estate on which the mill property was situated. Subsequently there was a reorganization of the new corporation bearing the name of the United States Cordage Company, and to it was transferred all of the property and property rights of the National Cordage Company, including the good will of the business of William Wall’s Sons, and the right to use the firm name. By this transfer the new corporation succeeded to all the property, property rights, and interests of the original corporation, and acquired all of the benefits arising from and growing out of the contracts to which we have referred. Frank T. Wall, William F. Wall, and Edwin R. Brinkerhoff, notwithstanding these facts, made preparations to engage in the business of manufacturing and selling cordage ; and to facilitate the sale of the goods undertook to make such use of the name William Wall’s Sons as would enable them to derive substantial benefit from the good will which had been established in that name. To that end they organized a corporation known as William Wall’s Sons.Rope Company, under the laws of the state of New Jersey. At their office on South street a large sign bore the na'me of William Wall’s Sons, and they made use of other signs to the same effect. , Circulars were issued, addressed to their customers, inviting custom, in which reference was made to the old firm of William Wall’s Sons, and signed’William Wall’s Sons Eope Company.

From these facts it is apparent that there is no room to question so much of the order as enjoins the defendants, during the pendency of this action, from using in any manner whatever the name William Wall’s Sons in connection with the manufacture and sale of cordage. The appellant Frank T. Wall, insisting that the only rights secured by the National Cordage Company were under and by virtue of the so-called “agreement” of August 21, 1890, urges that he is "at liberty to engage in the cordage business under his own name, and to solicit custom of any person or persons whomsoever. By the agreement he claims that the good will of William Wall’s Sons was transferred, and nothing more; and that, in the absence of an express statement to the contrary, the vendor of a name and good will of a business the same business, and invite all the world, including the old customers of the vendor, to come there and purchase of him, provided he does not lead any one to believe that the articles that he offers for sale are manufactured by the vendee, or that he was the successor to the business of the old firm, or that the vendee was not carrying on the business formerly carried on by the old firm. Marcus Ward & Co. v. Ward, 40 St. Rep. 792. But since the Diamond Match Co. v. Roeher, 106 N. Y. 473 ; 11 St. Rep. 47, it has been the law of the state that a covenant not to engage in business by a vendor, made in connection with a sale of his business and good will, is valid and enforceable. The agreement of August 21st contains a covenant that the parties of the first part shall not, directly or indirectly, engage in the manufacture or sale of cordage and binding twine within the limits of the United States, except as an employe of the party of the second part, and except upon certain conditions precedent in the agreement specified, which it does not appear the parties have performed or attempted to perform. And it seems a reasonable construction to place upon that agreement to hold that the covenant included Frank T. Wall individually as well as the firm of William Wall’s Sons, of which he was the only ■active member. But, independently of this agreement, which, as we have said, was executed prior to the recommendations of the board of directors and the stockholders to purchase the fees of the property and the good will will, it would seem that the National Cordage Company became the owner of the property and good will of the business of William Wall’s Sons, and they became bound not to engage in a similar business, except as employes of the company. The recommendation of the directors, made pursuant to a report of a committee of which Frank T. Wall was a member, was that the proceeds of the preferred stock should be devoted to procuring the fees of the properties and obtaining the good will of their business, trade-marks, and covenants not to engage in business except for the National Cordage Company. This recommendation of the directors was adopted by the stockholders bv a resolution offered by Frank T. Wall. The proposition was accepted by the owners of the several properties, and they received therefor the full consideration. The making of the propositions, their acceptance, and the payment of the money, the parties apparently regarded as binding upon them without a formal written agreement; and so it was, if that was their understanding and intention. We discover nothing in the present record to lead us to think that it was not so intended, and, that being the case, it would seem that Frank T. Wall bound himself not to engage in the cordage and binding-twine business except as an employe of the National Cordage Company. It was claimed upon the argument that it does not appear from the record that Brinkeroff' and William F. Wall bound themselves not to engage in the cordage business under their own names, nor from soliciting business from customers formerly of William Wall’s Sons. This position seems to us well founded. The eighth clause of the complaint alleges that in the year 1888 the firm of William Wall’s Sons was dissolved by the death of Michael W. Wall, and thereupon a new partnership was formed, consisting of Frank T. Wall and Eliza A. Wall as general partners, William F. Wall and Edwin R. Brinkerhoff, as trustees under the last will and testament of Michael W. Wall, as nominal partners. It does not appear that either Brinkeroff or William F. Wall derived the slightest benefit from the transactions between William Wall’s Sons and the National Cordage Company, or that they had any connection whatever with the business other than as trustees under the will of Michael W. Wall. That being so, we can discover no ground upon which to base an injunction restraining them from engaging in the business under their own names, or from soliciting business from the customers of the old firm of William Wall’s Sons.

The order should be modified by adding at the end thereof the following: “But so much of the order as enjoins the defendants from in any manner soliciting business of customers formerly of William Wall’s Sons” shall not apply to Edwin R. Brinkeroff and William F. Wall. As thus modified, the order should be affirmed. All concur.