text:
    Isaac Hays, Resp’t, v. Bernard Midas and Lewis R. Stegman, Sheriff, etc., App’lts.

      (Court of Appeals,

      Filed March 1, 1887.)

    Election of remedies—Waiver—When bringing suit is not—Fraud.
    A suit was commenced and a warrant of attachment issued on the ground (as set out in said warrant and in the affidavits, etc., on which it was granted) that the defendant therein had removed and disposed of his property with intent to defraud his creditors, and said suit was discontinued by order of the court on notice to the defendant therein, no advantage accruing to the plaintiff thereunder. Meld, that the mere bringing of said action for the price of the goods, unless it was brought with knowledge of the fraud in the acquisition of the goods, is not a binding election or waiver of the , right to rescind the sale. Following Equitable Co-operative Co. v. Hers e, 3 N. Y. State Rep., 100.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment in favor of defendants, entered upon the direction of the Kings county circuit court upon a question of law reserved for its decision after a verdict had been rendered in favor of plaintiff on the question of fraud.

      James Troy, for app’lts; Blumensteil & Hirsch, for resp’t.

       Affirming 39 Hun, 460.

   Danforth, J.

This is an appeal by the defendant Stegman from an order of the general term of the supreme court, reversing a judgment theretofore obtained by him - in an action for the recovery of personal property and directing judgment in favor of the plaintiff. The complaint contains the usual allegations required in such actions. The answer of defendant Stegman admitted the value of the goods to be as stated, but denied all other averments of the complaint, and set up that, as sheriff of Kings county, he took the property by virtue of sundry attachments duly-issued to him for enforcement against the property of one, Midas, his co-defendant, and that one of the attachments was in favor of the plaintiff Hays. Midas, by his answer, alleged that the property was purchased by him from the plaintiff, and that, before the commencement of this action, the plaintiff sued for the price, and obtained a warrant of attachment, thereby, as is asserted, affirming the contract of sale.

Upon the trial the plaintiff offered testimony tending to show that Midas procured the goods fraudulently, and produced and offered to return to him the notes given therefor. They were refused. The defendant Stegman then put in evidence, among others, the attachment issued to him in favor of the plaintiff. It recited a cause of action on contract, and stated, as ground for the attachment, that “the defendant has removed and disposed of his property with intent to defraud his creditors,” and also the affidavits on which the charge was founded.

The suit was commenced, and the attachment levied upon real and personal property of the defendant Midas, on the 16th of December, 1884. But it was proven that the attachment suit was discontinued by an order of the court made December 27th, on notice to the defendant, and the present action commenced on the 29th of December, 1884. It was conceded that nothing was obtained by the plaintiff under the attachment. The defendants thereupon moved for a dismissal of the complaint, upon the ground, as stated by their counsel, that it appeared from the proof that the plaintiff, on the 16th day of December, 1884, with full knowledge of the fraud which had been perpetrated upon him by Midas, and the right to rescind said sale and reclaim said goods, or affirm the sale and recover the value therefor, had elected to affirm the sale of the goods obtained by Midas, and sue upon the contract for the value thereof, and, having so elected and obtained the benefit of a personal remedy, such election was final and conclusive, and vested Midas with the title to said property. By consent of parties the court reversed its decision upon the question of law thus raised, and submitted the case to the jury to find on the question of fact as to whether the defendant Midas had obtained possession of the goods fraudulently, and with the preconceived intent not to pay therefor. They found for the plaintiff. The court subsequently decided the point reserved in favor of the defendent, set aside the verdict, dismissed the complaint, and awarded judgment in favor of the defendant Stegman for a return of the property. Upon appeal by the plaintiff the general term reversed this judgment, and ordered judgment for the plaintiff upon the verdict.

The two actions are inconsistent; and, if it had appeared that the first was brought with knowledge of the defendant’s fraud, it may be inferred from the opinions of the courts below there would have been no difference between them. But neither party requested to have that question determined by the jury, and the affidavits which accompanied the attachment have led to a conflict of interpretation, and the appellant now contends that the affidavits show, not only fraud on the part of Midas in the disposition of his property, but also that he had contracted the debt fraudulently. Such was the conclusion of the trial judge, but we agree with the general term in the- opinion that the fact does not there appear. The plaintiff’s own affidavit contains no such averment, but alleges, as the only ground upon which he applies for an attachment, “that the defendant” therein “ has removed and disposed of his property with intent to defraud his creditors.” Tho warrant of attachment contains the same and no other charge. Other affidavits state facts which sustain the charge actually made; but unless it is necessarily, and as matter of law, to be inferred that one who is guilty of fraudulently disposing of property was also guilty of fraud in its acquisition, knowledge of the fact cannot be imputed to a person who has no other means of information. It would be different if it appeared that one buying on credit did at the time of purchase intend to make a fraudulent assignment, or other fraudulent disposition of the goods bought, and a vendor who, with knowledge of that fact, sued for the price, might with some reason be deemed to affirm the contract, and thereafter be held to his election. Such is not this case. Nor did any advantage accrue by reason of the attachment. It was a remedy given for another fraud, and was incident to the action upon contract, and fell with its discontinuance. The judgment appealed from is so directly within our decision in Equitable Co-operative Foundery Co. v. Hersee, 103 N. Y., 25; 3 N. Y. State Rep., 100 (decided October, 1886), that no further discussion is required.

The judgment should be affirmed.

All concur, except Earl, J., not voting.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    People ex rel. Nicholas Haughton et al., App’lts, v. William S. Andrews et al., Resp’ts.

      (Court of Appeals,

      Filed March 1, 1887.)

    New York city—Commissioners of excise—Appointment by mayor does NOT NEED CONFIRMATION OF ALDERMEN—LAWS 1884, CHAP. 43.
    Under chapter 43, of Laws of 1884, it was not necessary that an appointment by the mayor of New York in 1886 of a person to act as commissioner of excise in said city should be submitted to the board of aldermen for confirmation.
    Appeal from a judgment of supreme court, general term, first department, in favor of defendants, on a case submitted under Code Civil Procedure, § 1279, in an action to try the title of defendants to the office of commissioners of excise.

      A. J. Dittenhoefer, for app’lts; Charles W. Dayton, for resp’ts.

       Affirming 4 N. Y. State Rep., 719; 42 Hun, 614, mem.

   Danforth, J.

Upon a case submitted under section 1279 of the Code of Civil Procedure, it appeared that “the relators, Nicholas Haughton and John J. Morris, and one William P. Mitchell, were nominated to the board of aider-men of the city of New York, as commissioners of excise in the city of New York, by the mayor of that city, prior to the first day of May, 1883, pursuant to chapter 175 of the Laws of 1870, and the nominations duly confirmed by its board of aldermen; that the relators severally took the oath of office and duly qualified as such commissioners of excise and entered upon the discharge of their duties as such. That their term of office was to be three years from the first day of May, 1883, and to continue until others should be appointed in their places. That on the first day of May, 1886, the mayor of the city of New York named the defendants and respondents, William S. Andrews, John Von Glahn and Charles H. Woodman, to be commissioners of excise in the city of New York, by written appointment, as follows:

Under and in pursuance of section 109, chapter 410 of the Laws of 1882, and of chapter 43 of the Laws of 1884, I hereby appoint John Von Glahn a commissioner of excise in the city of New York, for the term of three years, from May 1, 1886, in place of John J. Morris, whose term of office has expired.
[L. s.] W. R. GRACE, Mayor.” J

And in the same words each of the others.' That neither of the said several appointments of the defendants and respondents made on the first day of May, 1886, have been submitted to, nor have such nominations, of any or either of them, been confirmed by the board of aldermen of the city of Mew York.

That they have respectively taken the oath of office, as such commissioner of excise and are performing the duties of commissioners of excise, and claim to be regularly in office, without confirmation by the board of aldermen of said city.

The question submitted to the court was : Are the defendants and respondents the legal successors in office o£ the relators ?

We are of opinion that they are. It is declared by statute (chapter 43, Laws of 1884, § 1) that “all appointments to office in the city of Mew York now”—March 17, 1884— “made by the mayor, and confirmed by the board of aider-men, shall after that time be made by the mayor without such confirmation,” and by section 2, that the act shall take effect January 1, 1885.

The relators were appointed under the act of 1870, supra, ■ upon nomination by the mayor and confirmation by the board of aldermen. Except for the subsequent act of 1884, supra, their successors would have been appointed in the same way. The act of 1884 works a change in the manner of appointment, and has been complied with. It is really difficult to find an argument to make clearer the proposition that they are the legal successors in office of the relators. It is argued to the contrary that “excise commissioners are-state and not municipal officers.” Concede that to be so. Prior to 1884 the power to appoint was local, and the relators took office under a statute which vested the appointing power in the mayor and aldermen. For every act done by them in an official capacity, they must have justified under a commission derived from that source, and in answer to a quo warranta, could have shown no other title to office. Mo doubt their duties affect the general public, but they are to be performed within the same limits as those which confined the municipality, the moneys collected through them are to be paid into the city treasury for the benefit of the city and as its property, at one time were applied in payment of the city debt (chapter 549, Laws of 1873) and afterward to benevolent institutions, under appropriations made by its board of estimate and apportionment. Laws of 1874, chapter 642. The salaries of the commissioners were by the act of 1870, chapter 175, to be fixed by the mayor and common council, and paid as those of other city officers are paid, and by the act of 1873, supra, the salaries of the commissioners, as well as the hire of their employees and the other necessary expenses of the board, were fixed by the board of estimate and apportionment of the city and paid by its comptroller.

While, therefore, they may be in one sense, and that a technical one, state officers, their dependence upon the city and its municipal government is manifest, and we see no reason to suppose they are not within the purview of the statute under which the defendants were appointed. Laws of 1884, supra. They are within its letter, and the body of the act is not restrained by its title. It is “An act to center responsibility in the municipal government of the city of New York.” It expresses an intent to bestow upon one person greater power, and to relieve all others of a divided responsibility, and this intent was effected by giving to the executive head of the municipality the sole power of appointment, thus making him individually responsible for its proper exercise. The title and body of the act concur, and the parties to this controversy are so obviously within its condition that we find no objection of the appellant to be well founded.

The judgment appealed from should, therefore, be affirmed.

All concur.


author: Peckham, J.

text:
    Association for the Benefit of Colored Orphans v. Mayor, etc., of New York.

      (Court of Appeals,

      Filed March 1, 1887.)

    1. Taxes and assessments—What exempt as an alms-house—Laws 1866, chap. 136—What not exempt as seminary or place of public WORSHIP.
    The object of the plaintiff, a society incorporated under Laws 1838, chapter 282, was to provide and maintain a place of refuge for colored orphans where they should be boarded and suitably educated until of an an age to be bound or apprenticed. Held, that the building owned by said society in New York city is exempt from taxation as an alms-house under Laws 1866, chapter 136; that it was not exempt as a seminary or a building for public worship.
    2. Same—Removal of property from annual assessment-roll—When done.
    After “ the annual record of the assessed valuation of real and personal estate” is closed, on the first of May in each year, as provided by Laws 1882, chapter 410 (consolidation act), § 814, there is no power anywhere to take real estate out of that record and out of the roll, because, after the closing of the record, the property had passed into the hands of an institution exempt from taxation.
    Cross-appeals from a judgment of the supreme court, general term, first department, modifying a judgment of the special term and affirming said judgment as modified in an action to secure an injunction restraining the collection of certain taxes.

      Herbert A. Shipman, for pl’ff; Arthur H. Masten, for def’t.

       Affirming, 38 Hun, 593.

   Peckham, J.

The plaintiff commenced this action to set aside as a cloud upon its title the lien of certain taxes which the taxing officers of defendant had assumed to levy upon its lands situated in that city and exclusively used by it for the purposes of its incorporation. The taxes were levied from the years 1877 to 1880, both inclusive, and amounted to something over $2,000. The special term granted judgment in favor of the plaintiff and enjoined the collection of the tax for any one of the years mentioned.

Upon appeal to the general term that court affirmed the judgment as to all the years but 1877, and held that the plaintiff purchased its land in that year subject to the lien of the tax and, therefore, modified the judgment of the special term as to that year. Both parties appealed from that order and the whole question is now before this court for review. The plaintiff claims that its property is exempt from taxation by virtue of the general laws of the state. The court below placed its decision on two grounds; first, that the facts showed that the building in question upon the property of plaintiff was a school house, and, second, that it was a building for public worship.

The plaintiff was incorporated as a colored orphan asylum by chapter 232 of the Laws of 1838. Its charter was subsequently amended, but not in any matter material to this investigation. The act of incorporation did not specify the purpose for Which the corporation was formed any further than such purpose might be assumed from the name, but it did make the corporation subject to the provisions of and it gave to it the powers possessed by a corporation under the revised statutes (1 Rev. Stat., 600, § 1) and the sixth subdivision of that section gave the corporation power to make by-laws for the regulation of its affairs.

There was put in evidence on the trial a copy of the constitution of the plaintiff made pursuant to this power to make by-laws, and by article 2 it was declared that “The object of this society shall be to provide and maintain a place of refuge for colored orphans, where they shall be boarded and suitably educated until of an age to be bound or apprenticed. In admitting children to the asylum those deprived of both parents shall have the preference, but if means be afforded half orphans shall be received.”

Judging from its act of incorporation and the provisions of its constitution, we are by no means satisfied that it comes under either head óf exemption as stated by the court below. This court has decided that the “schoolhouse” referred to in our statute of exemption (1 Rev. St., 388, § 4, subd. 3) is the public common school. Chegaray v. Mayor, etc., 13 N. Y., 220. The dictum of Rugoles, Oh. J., to the contrary, in Chegaray v. Jenkins, 5 N. Y., 376, being overruled by the court, it is difficult to see also how this can be said to be a building for public worship, within the same statute.

The house rules provide that the Sabbath religious services shall be held in the assembly room at eleven A. M., and appropriate services on Thanksgiving and national fast days at such hour as the superintendent may designate.” But it is also expressly provided that “ no visitors are to be admitted on that day (Sunday) either to the children or other inmates, except under pressing peculiar circumstances and by consent of the superintendent or matron.” How can that worship be called public to which the public is not admitted ? On the contrary, it is obviously conducted as a proper religious service for the inmates of the institution only and who are by statute made the wards of the trustees who are thereby constituted their guardians.

Again, by the act, chapter 282, Laws .of 1852, repeated substantially in section 827 of chap. 410 of the Laws of 1882 (N ew Y ark Consolidation Act) the building for public worship to be exempt must, in New York city at least, be exclusively used for that purpose and also be the property of a religious society.' It is not pretended that it is thus exclusively used. Nor can it be successfully contended that the plaintiff is brought within the meaning of the statute as being either “an incorporated academy or other seminary of learning,” by the very limited provision that is made for suitably educating these orphan children until they are of an age to be bound out or apprenticed. At any rate the building is not exclusively used for the purpose of a seminary of learning, nor is that its prime or chief purpose. Protection and care, a place of refuge for colored orphans, are the main purposes, and the comparatively small amount of education comes in as an addendum to such charity.

The case of Hebrew Free School Asylum v. Mayor (4 Hun, 446), is not in point. In that case there was and could be no question but that the corporation was a seminary of learning within the general exemption statute; and the only issue raised was whether the building was the exclusive property of a religious society. The object of the corporation was to provide for the gratuitous instruction of Jewish youth in the Hebrew religion and language and other branches of knowledge, and to promote the study of Hebrew literature. The court held that it answered sufficiently the designation of a religious society, within the meaning of the act of 1852, to entitle its building to exemption.

But in this case the plaintiff is not brought within the general statute of exemption, - upon any of the grounds already discussed.

We think, however, its claim can very fairly rest upon another subdivision of the same statute. By subdivision 4, of section 4, already cited (as amended by chap. 136, of the Laws of 1866), it is provided that “every poorhouse, almshouse, house of industry and every house belonging to a company incorporated for the reformation of offenders or to improve the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same, ” shall be exempt from taxation.

At first it might be thought (and it has been claimed) that this statute refers to such almshouses as are the property of the public and are used and controlled by public authorities as the receptacles of public paupers in accordance with the general system of the poor laws of our state. This kind of claim was made in the case of the Swiss Benevolent Society in the precise language above used, and in that case reported in the Daily Register, September 12, 1885 (36 Hun, 311), the New York general term held that the argument was not sound, and for reasons which we think are entirely valid. In the first place it may be'observed that there is no occasion for so narrow a construction of the statute arising from the language used. The statute in terms includes property other than such as is owned by the public, as it includes any corporation incorporated for the reformation of offenders, or to improve the moral condition of seamen, both of which may be private corporations; and so too an almshouse may be a-private corporation.

The building of the plaintiff comes within the fair meaning of an almshouse which is defined as a house appropriated for the poor. This certainly is the case with the building of the plaintiff. It is appropriated wholly for the poor who are colored orphans, and where they are to have a place of refuge, and to be boarded, clothed and suitably educated, etc., gratuitously.

What seems a still stronger reason for denying the correctness of the claim, that the statute refers only to the well known public almshouses, is the fact that in treating of the general subject of the support of the poor, the legislature (1 R. S., 614) by a special section (p. 631, sec. 72) made this provision for the public almshouses first spoken of: “Every poorhouse, almshouse or other place provided by any city, town or county for the reception and support of the poor, and all real and personal property whatever, belonging to or connected with the same, shall be exempt from all assessment and taxation,” etc.

This is simply a substantial repetition of the Act of 1826, chap. 10, which made it unlawful “to assess any city, county or town poorhouse or almshouse ; ” and like that act it strictly coniines the exemption to public almshouses and would, therefore, exclude a building devoted to such purposes as that owned by the plaintiff. But when the general statute relating to exemptions was passed as part of the Revised Statutes, it is seen how much broader the language is than was used in the Act of 1826. In providing for the general support of the poor, a subsequent part of the Revised Statutes re-enacts (as above quoted) the substance of the Act of 1826, with additions as to the keeper of such poorhouses.

It may be thought that this subsequent enactment was unnecessary because the public almshouses were certainly included in the general Exemption Statute. However that may be it does not detract from the strength of the argument that when the legislature first passed an enactment regarding almshouses it did so in such language as included only public institutions ; and when it passed in the Revised Statutes a general enactment as to exemptions, it adopted language showing an intention to greatly broaden the exemption. If its intention had been the same in the passage of the two provisions embodied in the Revised Statutes, and already quoted, it is not too much to say that it would have adopted the same language, or language of like import, and in regard to which there would be no room for doubt or misapprehension.

The general principle that "statutes of exemption should be strictly construed we believe in and adhere to, but such a case as this we do not regard as coming within that principle. . ‘ .

The plaintiff is performing a work of pure charity, and is taking upon its own shoulders a portion of the burden that would otherwise fall upon the public. It is doing this good work by the express permission of the legislature, and through its aid by reason of its incorporation, and in the language of Mr. Justice Davis in the Case of the Swiss Benevolent Society, above cited, the legislature “cannot intend to tax the means by which the relator performs the duty,” for which it was incorporated, “that of taking a portion of a public burden upon its own shoulders.”

Such a case as this is wholly outside of the mischiefs intended to be prevented by the rule referred to. When business corporations or interests come to the courts, seeking an exemption from the common burden of taxation, it behooves them to show plainly the law which grants the exemption claimed; and the courts will scrutinize it" with great care and caution before allowing such claim.

We think the property comes fairly within the meaning of the statute as an almshouse, and that it was exempt on that ground from taxation.

The remaining question relates to the tax of the year 1877, which the general term held the plaintiff liable to pay..

The plaintiff took title to the premises by deed dated July 31, 1877, and it is now contended that there was no lien arising from the imposition of any tax until the amount of the tax was carried out and the same was confirmed, which in this instance did not, as is said, take place until October, 1877.

In questions arising under covenants in deeds as to incumbrances it has been decided that no lien or incumbrance by reason of a tax existed until tho amount thereof was ascertained or determined. Dowdney v. Mayor, 54 N. Y., 186.

A different principle, however, is here involved. The counsel for plaintiff says, that when the assessors valued the property in question for the purpose of taxation, it was legally liable to taxation, and the action of the commissioners in assessing it was undoubtedly correct, but he claims that the fax was illegally confirmed, as at that date it belonged to plaintiffs and was exempt.

We do not think this is the case. The court at special, term found that in 1877 a tax of $524.70 was levied on the premises in question by the defendants. This tax arose from the tax proceedings which were initiated in September of the year 1876. By section 814 and following sections of the consolidation act of New York—chapter 410, Laws of 1882—the deputy tax commissioners commenced to assess real and personal estate on the, first Monday of September in each year. They furnished to the commissioners of taxes and assessments, under oath, a detailed statement of all the taxable property in their several districts. From these returns, the commissioners make up certain books called “the annual record of the assessed valuation of real and personal estate.” These books are open for examination and correction from the second Monday in January until the first day of May in each year—on which last-named day they are closed to enable the commissioners to prepare assessment-rolls of the several wards for delivery to the aldermen.

On the first day of May the commissioners must cause to be prepared from these books of annual record, and which are declared by law to be closed on that day, assessment-rolls for each ward, and must annex to them a certificate that the same are correct in accordance with the entries in said books of record. These rolls thus certified must be delivered by the commissioners to the board of aldermen on the first Monday in July in each year. These rolls are then taken by the board which, after examination and figuring, carries out the amount of the fax, having in the meantime arrived at '¿ho determination of the gross amount to be raised by taxation for the year, and the assessment-rolls must be delivered, with the proper warrants from the board of aldermen attached, to the receiver of taxes on or before the first day of September, who then gives notice and proceeds to collect the taxes.

From this review of the law it is seen that the initial steps to levy a tax commence in September of one year and are not concluded by the receipt of the tax warrants by the receiver of taxes until the September following, covering a whole year in the process. Even if real estate not on the annual record of assessed valuation at the time when the books are open for examination could be placed on, or if real estate that is on could be taken from the record up to the time of the closing thereof in the following May, it is clear that no such alteration could be made after that date, and it is equally clear that the general scheme of taxation is to enter as assessable that property which is of that character up to the time when the record book is open for examination. If then assessable, its character would seem to be fixed for the year, but in any event, if assessable and assessed at the time the books close, it must remain so for purposes of taxation under the assessment-roll that is to be compiled from the record for that year. There was no power anywhere after that to take real estate out of that record and out of the roll, because since the closing of the record the property had passed into the hands of an institution exempt from taxation. The exemption must be held in such a case as this to be prospective in its operation. There is no provision made for any amendment or alteration of the record after the first day of May in regard to the assessment of property—with an exception which does not touch this case, section 820—and all subsequent proceedings are based upon the absolute stability of the record from that date, and the assessment-rolls are to be correct and certified transcripts of the same. Upon this basis the taxes are carried out by the aldermen, and the rolls with the proper warrants annexed are delivered to the receiver of taxes, and thus at no period of time intermediate the closing of the books on the first of May and the reception of the assessment-rolls and the warrants annexed thereto by the receiver, could anyone legally drop this property from the assessment-roll. Whether or not the tax had become a lien at the time when the plaintiff took title, is a fact of no moment. It may be conceded that technically there was then no lien. For the reasons already given, the property was nevertheless rightly on the roll and could not be legally taken off, and the tax was properly laid and was payable by the plaintiff if it desired to clear its title to the property.

The judgment of the general term modifying the judgment of the special term should be affirmed, and as both parties appealed from it and both have failed, neither should recover costs as against the other.

All concur.


author: Ruger, Ch. J.

text:
    Stephen W. Monk, Resp’t, v. The Town of New Utrecht, App’lt.

      (Court of Appeals,

      Filed March 1, 1887)

    1. Highway—Commissioners—When town liable for defective highways.
    A town is not liable for an error in judgment on the part of its highway commissioners, in a case where they were unable from want of means to repair all of the defective places in the highways of the towns.
    2. Same—Town not liable for defective judgment—Laws 1869, chap. 670.
    The commissioners of a certain town, authorized by Laws 1869, chapter 670, to lay out streets, etc., were called upon, in constructing a plan for a certain street to decide upon the safety of the route adopted and the dangers thereby to be encountered, and if safeguards were necessary to protect travelers in passing- dangerous places, to provide them, and if they failed to do so, it constituted simply a defect in the plan of the work arising from an error in judgment as to its necessities. For such error no liability arises. The question here was as to a railing or fence on the ,side of the street.
    Appeal from a judgment and order of tlte supreme court, general term, second department, reversing an order setting' aside the verdict and affirming the judgment on the verdict.

      Wm. Sullivan, for app’lt; A. Sims, Jr., for resp’t.
   Ruger, Ch. J.

This action was brought to recover damages occasioned to the plaintiff by falling down a slope or declivity adjoining the road known as Eighty-sixth street, in the town of New Utrecht, Kings county.

This slope descended from the northerly exterior line of the sidewalk thirty feet, at an angle of about thirty degrees, and was intercepted near the middle by a fence running parallel with the road. The road was built about the year 1874, and was laid out with a road-bed sixty feet wide, flanked on either side by sidewalks eleven feet wide, raised about one foot above the level of the road, and bordered near the gutters with rows of trees. It was located partly in the town of New Utrecht and partly in Gravesend, and extended from the village of Bath to Fort Hamilton, both lying on or near the sea shore, about two miles apart.

The accident occurred about ten o’clock in the evening, at a point nearly half-way between the two villages; the plaintiff walked off the sidewalk and rolled down the embankment on the north side of the road, whereby he sustained bodily injuries.

. The negligence complained of was the omission of the defendant to erect a railing or fence at the top of the bank sufficient to prevent persons using the highway from walking or falling down the declivity.

We are of the opinion that the town owed no duty to the traveling public to erect such fence, and that it was not negligence on its part, or that of its highway commissioners, to omit to do so. The alleged defect was incident to the plan of the road, and was created by the elevation of the road above the level of the adjacent land. Such irregularities are not at all uncommon in rural highways, and are not supposed to present any danger to the traveling public when using ordinary care in the use of the road. The town had furnished a safe and sufficient roadway of unusual width, whose boundaries were indicated on either side by a gutter, and elevated sidewalk, bordered by rows of trees, and were under no obligation to erect barriers to prevent travelers from wandering into the adjoining fields. No possible difficulty^ existed in this case to prevent a traveler from following either the road or sidewalk, by marks which could both be seen and felt, and it would be imposing a burden beyond all precedent to require a town to remove irregularities in the surface of the land outside of the road, for fear that some traveler might wander there and thus sustain injury.

Neither at common law nor by the statute were towns under any legal liability to respond in damages even to persons injured by defects in the highways until after the enactment of chapter 700 of the Laws of 1881.

A manifest difference in this respect, arising out of charter provisions, and the obvious requirements of the situation, exists between village and municipal corporations and country towns in respect to such obligations. Hyatt v. Trustees of Rondout, 44 Barb., 385.

It was held in People v. Town Auditors (74 N. Y., 315), that “under our system no corporate duty is imposed upon towns in respect to the care, superintendence or regulation of highways within their limits.” “Commissioners of highways have by the statute the care and superintendence of highways,” and “they are responsible in a civil action for any injuries resulting from their neglect to repair a highway—if provided with means for that purpose— whereby an individual sustains damages.”

On the other hand the town, in its corporate character, has no control over the highways. It cannot lay out a highway or discontinue one. It is not liable for failure to keep highways in repair, and has but limited corporate duties to perform in respect thereto. People ex rel. Everett v. Board of Supervisors, 93 N. Y., 397.

By the act of 1881, however, it was provided that towns should thereafter be liable for such injuries in cases where the “commissioner or commissioners of highways of said towns are now by law liable therefor.”

It is seen that the liability of the towns is thus made coextensive with that of commissioners of highways in towns.

No absolute liability for such injuries was ever imposed by law upon such officers, but only a.limited responsibility arising out of their negligence to the extent only that they were possessed of, or had power to obtain means to "make necessary repairs. Hines v. City of Lockport, 50 N. Y., 238; Hover v. Barkhoof, 44 id., 113.

It does not affirmatively appear in what manner the commissioners of the town of New Utrecht were supplied with funds for the repair of its roads and bridges, but it is shown by the evidence of one of its commissioners that he received $2,500 during the year 1882 for such purposes.

It was testified to, that such sum was afi expended in that year for the ordinary repairs of the roads and bridges and was not entirely sufficient for that purpose.

The proof showed that from sixty-five to seventy miles of road were within the jurisdiction of the commissioners and required care, expense and repair, and to have guarded the several places along said roads where banks or declivities existed would have required the erection of two or three miles of barriers in addition to the expense for legitimate repair of the road-beds. Under such circumstances it was confided to the discretion of the commissioners to apply the funds in their hands in making such repairs as in their judgment were most earnestly needed, and they were not responsible for any error of judgment in doing so. Garlinghouse v. Jacobs, 29 N. Y., 297; Hover v. Barkhoof, 44 id., 118.

It was, therefore, error for the court below to charge the jury that if they found “that the great necessity was to keep the actual bed of the roadway safe, they were right in spending it in that way. But if you say it was of more importance to guard this highway then they were wrong. ”

The direct effect of this instruction was to authorize the jury to find the defendant liable for an error in judgment on the part of its highway commissioners in a case where they were unable from want of means to repair all of the defective places in the highways of the town.

There was not the slightest evidence in the case as to the respective needs of the various places in the highways requiring repairs, and no ground exists upon the evidence for imputing an error in judgment to them in expending the funds in their hands.

The exception to the charge was well taken. We are also of the opinion that under the method in force for laying out and building public roads in the county of Bangs, the defect, if any, in the roads in question arose from an error in the plan of the road, and was not chargeable to the officer of the town.

It is provided by chapter 670 of the Laws of 1869, that roads and streets in the towns of Kings county shall be made by certain commissioners consisting of the respective supervisors of the towns of New Lots, Flatbush, Flatlands, New Utrecht and Gravesend, and the chairman of the board of supervisors of Kings county. They are to have exclusive power to lay out such streets, avenues and public places of such width, extent and direction as they shall decide, and after the adoption of such permanent plan no street or avenue shall be laid out in such towns except in accordance with said plan, and all streets or avenues afterward opened shall be made to conform to such permanent plan and the lines thereof. Such plan is required to be filed in the clerk’s office of the county. By chapter 364 of the Laws of 1873, these commissioners were directed to lay out and place upon their map Eighty-sixth street in accordance with certain conditions therein specified for its direction and location, and this street was afterward laid out and entered by said commissioners in conformity thereto. It was further provided in the same act that upon the application of any freeholder whose land should be taken for such road, the county clerk of Kings county or a special term of the supreme court therein should appoint three freeholders of New Utrecht and Gravesend to appraise and award damages to the several persons whose land was required for such road, and should also assess such persons and all others owning land within one hundred feet on either side of such road for the aggregate amount of such awards and the expense of making such awards and assessments. Appropriate provisions were also made to enforce and collect such assessments and awards. Upon the confirmation of the report of such commissioners by the court it was further provided that three other commissioners should be appointed by the said courts, or one of them, in the same manner as the previous commissioners had been appointed to regulate and grade for public travel such streets, and to plant trees along the sidewalks and erect suitable signs with the names of any intersecting streets or avenues thereon, and assess the expense thereof upon the premises lying on either side of said street within one hundred feet thereof.

After the grading of said, street should be completed it was provided that the owners of the adjoining premises on either side might fence their lots along the street, and it was then further enacted that the said street so laid out and mapped should be a public highway, and the portions thereof situate within the towns of New Utrecht and Graves-end respectively shall be kept in repair by the commissioners of highways of those towns respectively.

We have thus stated all of the statutory provisions applying to the subject upon which the defendant’s liability, if any, must be predicated.

No complaint is made that the commissioners of highways of the defendant have not kept the road and sidewalks of Eighty-sixth street in perfect repair since they came under their charge, or that the road was not constructed in every respect according to the plan laid down by the commissioners charged with the duty of making it.

The charge is that a grade laid out and designed by the street plan outside of the roadway, and not apparently dangerous to persons traveling thereon was not rendered accessible to persons from the sidewalk by a fence or railing, 'We are unable to see any duty resting upon the town to make such fence. The entire duty of laying out, constructing and grading the road as a finished highway was expressly imposed upon the commissioners named in the statute, and no duty except that of keeping the street, when completed in repair, was confined to or imposed upon the town authorities.

The statutory commissioners were clothed with power and funds to make a safe and complete roadway, finished in all respects, and they undoubtedly supposed they had done so when they turned it over to the town.

All questions as to the feasibility and safety of the route selected and of the security of the plans of structure to be adopted were devolved by statute upon the commissioners charged with the work of making such plans, and the duty of determining these questions was clearly judicial in its nature, dependent upon the judgment and discretion of the body authorized to perform it.

The commissioners were called upon, in constructing a plan, to decide upon the safety of the route adopted and the dangers thereby to be encountered, and if safeguards were necessary to protect travelers in passing dangerous places, to provide them, and if they failed to do so it constituted simply a defect in the plan of the work arising from an error in judgment as to its necessities. For such errors it

is well settled that no liability arises. Urquhart v. City of Ogdenshurgh, 91 N. Y., 67; S. C., 97 id., 238.

We also think that the order of the trial judge granting a non-suit was supported by the lack of proof showing the plaintiff free from contributory negligence. The evidence showed him to be an inmate of an inebriate asylum and that on the day of the accident he had leave of absence for a day under a pledge that he would abstain from intoxicating drinks during that time. Although he denies that he became intoxicated, he admits that he spent the entire day in going from one saloon or tavern to another, taking beer and other refreshments at each. He is described by every disinterested witness in the case as much intoxicated. _

_ When the circumstances of the acciden t are considered it is rendered quite clear that it could have happened only by gross carelessness. It occurred on a clear, starlit night, soon after he had been placed in the middle of a straight, wide road upon which there was a street-car track. The road itself was bordered by trees, gutters and a sidewalk. He was directed to his destination by a person who had guided him half of the way and told him to follow the car track. Objects could be seen plainly for two hundred feet, and no reasonable excuse for his walking off this road seems to exist except the plaintiff’s intoxicated condition.

We think the order of the general term should be reversed and the judgment of non-suit affirmed, with costs.

All concur.


author: Finch, J.

text:
    George H. Richardson, App’lt, v. Horace E. Thurber, Resp’t.

      (Court of Appeals,

      Filed March 1, 1887.)

    1. Assignment fob the benefit of creditors—Preferences—Wages— Laws 1884, chap. 328.
    The omission to prefer the wages or salaries owing to employees, etc., in an assignment for the benefit of creditors, does not render it void under Laws 1884, chapter 328.
    2. Same—Meaning of word “assignment” in Laws 1884, chap. 328, and Laws 1877, chap. 466.
    The word “ assignment ” as used in Laws 1877, chapter 466, and the amendment thereof, Laws 1884, chapter 328, sometimes has reference to the written instrument of transfer, and sometimes to the transfer and trust, which the written instrument makes effectual.
    3. Same—Power of legislature.
    The legislature has power to regulate and control general assignments for the benefit of creditors, may permit them only upon express conditions, and when it does so he who makes an assignment, by the act accepts and consents to the conditions.

      Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the New York county special term, sustaining a demurrer to a complaint in an action to set aside an assignment for the benefit of creditors.

      James L. Bishop, for app’lt; E. More, for resp’t.

       Affirming 39 Hun, 537.

   Finch, J.

The question involved in this controversy is in some respects so close and evenly balanced as to have produced conflicting opinions in the supreme court and drifted very able judges into disagreement. Either view of the problem seems open to some just criticism on the part of its adversaries, and the principal merit of our judgment upon the question will be that it is final and settles the rule to be observed.

In 1884, the general statute regulating assignments by insolvent debtors was amended so as to provide that “in all assignments made in pursuance of this act the wages or salaries actually owing to the employees of the assignor or assignors at the time of the execution of the assignment shall be preferred before any other debt, and should the assets of the assignor or assignors not be sufficient to pay in full all the claims preferred pursuant to this section they shall be applied to the payment of the same pro rata to the amount of each such claim.” Subsequent to that amendment a firm of insolvent debtors made and executed a voluntary assignment to the defendant, regular and in accordance with the general statute in all respects except that it contained no preference for wages owing to employees. The plaintiffs recovered judgment against the assignors, issued execution thereon to the sheriff, and then commenced the present action in equity to set aside the transfer as fraudulent and void, and an illegal obstruction to the collection of their debt, founding their sole objection upon the omission in the instrument itself to provide a preference for wages. Passing by the obvious incongruity acted upon by the special term, of a creditor appealing to a court of equity for its aid against a fraud, which is only such because it benefits the creditor to the harm of others not before the court, we come at once to the real question of the true construction and meaning of the statute.

Briefly stated the conflicting views revolve about the inquiry whether the enactment was intended to force into every assignment as the contract and mandate of the assignor a clause giving the desired preference, or to effect the result by its own statutory force operating in every case as a condition added by the law, and effective even if unexpressed in the instrument. The argument of the appellant stands most strongly upon what is claimed to be the literal language of the statute, and insists that the legislature has spoken in plain and unambiguous language, and the courts must obey. We are not convinced that the language employed is free from ambiguity. The word “assignment” may sometimes have reference to the instrument which effects the transfer, and sometimes to the transfer itself, considered as a legal effect or result. A grant of land may sometimes refer to the deed or conveyance, and sometimes to the passage of the title and its vesting in the grantee. In such cases the context or the apparent meaning determine the sense in which the word is used. It is said of the statute before us that the word assignment is invariably used as referring to the instrument of transfer. To some extent, that is true, but true because the manner of its use or the context discloses that intended meaning. When it is said in the act of 1811, that the assignment shall be acknowledged and recorded, there is no difficulty in understanding the necessary reference to the instrument. But, when it is said that very assignment shall be in writing, it is equally plain that the assignment means the legal transfer to be effected only by an instrument in writing. And when, again, it is said that on an accounting the county judge shall have power to examine the parties and witnesses on oath “in relation to the assignment,” we know from the character of the provision, and what follows, that the word “assignment” does not mean the mere written instrument, but is used in the broader sense of the transfer and trust which the written instrument makes effectual. So, in the section under consideration, we are to ascertain in which sense the word was used. The language is “in all assignments made in pursuance of this act.” That may mean in all written instruments of assignment, or in all cases of a general assignment. This section adds that the wages “shallbe preferred,” without saying by the assignor or assignors, and declares that, when the assets shall be insufficient to pay in full “all the claims preferred pursuant to this section,” a pro rata payment shall be made. Here it is not directed that the assignor shall so provide, but that the assets shall be applied to such payment. It seems to dictate, not what the assignor shall require, but what the assignee shall do, and speaks of the claims preferred pursuant to this section, instead of the claims for wages preferred by the instrument of assignment. These considerations incline our opinion towards the construction of the respondent, and -they are strengthened by,,reflection upon the purpose of the provision, and the consequences of a different view. The object was the protection of employees. That purpose, in the present case, may be defeated if we are simply to declare the assignment void. Suppose, too, as the general term suggest, that an assignment is made without any preferences, but gives up the whole estate to creditors equally. “ Equality is equity; ” but does it become fraudulent because a preference is not given, or rather, is not the statutory preference impressed upon the trust fund in the hands of the trustee ?

We are warned, however, that this construction may lead to unconstitutional results. It is argued that an assignment is a private contract creating a private trust fund, and the assignee derives all his powers from the instrument; that where the assignor does not prefer employees, if the statute does it, and compels the assignee to pay, the legislature stands in the attitude of appropriating the assignor’s property against his will and in violation of his expressed intentions. But the difficulty is imaginary. No one doubts the power of the legislature to regulate and control general assignments for the benefit of creditors. It may permit them to be made, as it has already done, only upon expressed conditions; and, when it does so, he who makes an assignment by the act accepts and consents to the conditions. Availing himself of the permission, he cannot be supposed also to repudiate its terms. That answer frees the federal law from the accusation of confiscating the property of a debtor against his will. That law gives to the United States priority of payment, even in case of a voluntary assignment; and it seems to be conceded that such priority is wholly irrespective of the terms of the assignment. The learned counsel for the appellant points out distinctions peculiar to the federal law and to governmental functions. There is great force in his suggestions, and yet the illustration shows that a statutory preference superimposed upon a voluntary assignment is not a novelty, or incapable of enforcement, or necessarily inconsistent with the rights of the citizen.

If we read this assignment in connection with the statute, and as if that formed part of it, we reach the one result which the statute sought to accomplish, and with much less of interference with the purpose and intent of the assignor than would follow from the utter destruction of his assignment.

Without pursuing the subject further, we conclude, though not without some hesitation, that the construction of the general term in this case is correct.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam

text:
    Eli W. Blake, Resp’t, v. Chester Griswold, App’lt.

      (Court of Appeals,

      Filed March 1, 1887.)

      1. Practice—Abatement and revival—Action for penalty—Assignment OF JUDGMENT.
    The plaintiff, in an action which was brought to recover the penalty imposed for failure to file a report, and for filing a false report, under the provisions of the manufacturing act, died after judgment and during the pendency of an appeal. The argument of that appeal proceeded in the court of appeals without its knowledge of his death, and the judgment was affirmed. A motion was made to substitute plaintiff’s administrator: Held, that the motion must be granted; that the cause of action after judgment is merged in the judgment, which itself may be assigned, and passes as assets to the representative of a deceased party.
    3. Manufacturing act—Penal provisions thereof.
    The rights and liabilities of parties, under the penal provisions of the manufacturing act, are not only regulated by special provisions of law, but are wholly created by such special provisions, and have no existence outside of the exceptional and peculiar authority and regulation of the statute.
    Motion to substitute as plaintiff the administrator of plaintiff, who died during the pendency of the appeal, made after affirmance on appeal by the court of appeals of a judgment in favor of plaintiff. Opinions on affirmance reported 4 N. Y. State Rep., 221 and 285.

      W. O. Holbrook, for app’lt; A. Pond and B. L. Hand, for resp’t.

       See 4 N. Y. State Rep., 218.

   Per Curiam

The motion for substitution must be granted. The plaintiff in the action, which was brought to recover the penalty imposed for failure to file a report, and for filing a false report under the provisions of the manufacturing act, died after judgment, and during the pendency of an appeal. The argument of that appeal proceeded in this court without our knowledge of his death and the judgment was affirmed. This motion is now made on behalf of the representatives of the plaintiff to substitute his administrator, and for judgment of affirmance in his favor. The motion is both made and resisted upon a claim that the whole law of the survival of causes of action has been subjected to a radical change which makes erroneous the drift of our recent decisions, and requires at our hands the adoption of a new rule founded upon modifications effected by the Code of Civil Procedure.

The defendant claims that these changes have taken away all provisions for saving from abatement, even after judgment, an action like the present, section 764, and the plaintiff, that all causes of action are made assignable and, therefore, survive, except those specifically named, section 1910, and so we have been mistakenly following the common law as modified by the Revised Statutes instead of recognizing the new rule derivable from the Code. If such had been the intention of the legislature, it is quite singular that the repealing act of 1880, passed to remove from the statute inconsistent and superfluous provisions which had become such by the adoption of the Code, should not only, have failed to repeal the two sections of the Revised Statutes (2 Rev. Stat., 448, §§ 1, 2), which, in connection with the common law, furnished the rule of survival, but should have expressly excepted and preserved them. 1 Laws of 1880, p. 268. And not only that affects the conclusion to be reached, but the circumstance still more remarkable, that no new or substituted rule of survival should be directly supplied by the Code, but the change, so radical and important, should be left wholly to a possible inference derived from a modification in the assignability of causes of action. While it is true that at common law and as a general rule the qualities of assignability and survival are tests each of the other arid convertible terms, and we have so declared (Hegerich v. Keddie, 99 N. Y., 258; Brackett v. Griswold, 103 id., 425; 4 N. Y. State R., 219), it does not follow that the legislature may not break that connection, and furnish a new and statutory rule of assignability, leaving the law as to the survival of causes of action unchanged. Possibly, so much has been accomplished, but certainly nothing more. While section 1910 makes an apparent extension of the rule of assignability, and section 1909 allows what can be transferred to be enforced, the last provision is expressly declared to be not applicable to a case “where the rights or liabilities of a party to a claim or demand which is transferred are regulated by special provision of law.”

The ‘ rights and liabilities ” of parties under the penal provisions of the manufacturing act are not only “regulated” by special provisions of law, but . are wholly created by such special provisions, and have no existence outside of the exceptional and peculiar authority and regulation of the statute. So that in the present case, as also in Brackett v. Griswold, the right of transfer given by the Code does not, under the same Code, give a right of enforcement to the transferee, but leaves the question of that right to the existing law. Section 755. The test remains whether the cause of action survives or continues. When, therefore, we said in Hegerich v. Keddie, supra, and followed the doctrine in Brackett v. Griswold, both of which were purely statutory actions, created and regulated by special enactments, that the rule of survival contained in the Revised Statutes must govern, we not only had the assent of counsel who argued their cases upon that basis, but the authority of section 1909 of the Code itself. If the legislature desires to adopt some different and simpler rule, and bring together what perhaps it would be wiser not to try to separate, it may do so in the future, but has not as yet accomplished the work. We grant this motion, therefore, not upon the ground asserted, but in accord with the settled rule that the cause of action after judgment is merged in the judgment, which itself may be assigned, and passes as assets to the representatives of a deceased party.

. Section 1912 clearly recognizes this rule, by the expression that such a judgment, ‘ recovered upon any cause of action, ” may be transferred, but, “if vacated or reversed, the transfer thereof does not transfer the cause of action unless the latter was transferable before the judgment was recovered.” Sections 1297 and 1298, relating to the death of a party pending an appeal, lead to the same conclusion. They indicate that until substitution the appeal cannot be heard, and so the argument had was irregular; but since it was thorough and exhaustive, and followed by a motion for a re-argument, and a third consideration of the case would do no more than waste the time of the court, we think we may accede to the request of the moving party, and, having granted his order of substitution, also affirm the judgment appealed from in favor of the substituted administrator.

All concur.


author: Earl, J.

text:
    The People, Resp’ts, v. Home Silver Mining Company, Appl’t.

      (Court of Appeals,

      Filed March 15, 1887.)

    1. Taxation — Exemption op manufacturing corporations, under Laws 1881, chap. 361.
    The defendant was organized to conduct a general mining business in Utah territory, which consisted in mining the ore there and manufacturing it into base bullion, which was shipped to Chicago and smelted, and then shipped to New York, to the United States assay office, to be refined, for which defendant paid two per cent of the silver, the proceeds being transmitted to Utah and Chicago. Held, that it was not engaged in manufacture within this state, so as to be exempt from taxation under section 3, chapter 361, Laws 1881, and that said act is clearly constitutional.
    3. Same—"Doing business in this state.”
    During the years 1881 and 1883, defendant’s officers had their offices in New York; the directors held their annual meetings there; its dividends were declared and paid there; its silver bullion was all sent there and sold there; some of the proceeds was loaned and used in New York, and the balance sent to Utah and Chicago. Held, that it was “ doing business in this state,” and was subject to taxation under said act,
    3. Same—Entire capital to be taxed.

      Held, that the entire capital should be taken as the basis for taxation, and not merely the amount of defendant’s capital employed within this state.

      4. Same—Laws 1882, chap. 151—Laws 1885, chap. 501.

      Held, also, that chapter 151, Laws 1882, providing that where a portion only of the capital stock is employed within the state, the comptroller has a right to review the report made, if dissatisfied with it, and determine the amount to he used as a basis, did not amend the act of 1881, but simply added certain sections to it, and that this construction of the act of 1882 is confirmed by chapter 501, Laws of 1885.
    h. Same—Penalty fob not paying tax.

      Held, that defendant was liable to the penalties imposed by section 2, Laws of 1881, for neglecting to pay the tax within the time' specified therein, and that their only remedy was to appeal to the legislature for relief.
    Appeal from judgment of general term, third departpartment, affirming a judgment in favor of plaintiff, entered upon the report of a referee, and from an order granting an additional allowance.
    The opinion states the facts.

      Julian T. Davies, Edward Lyman Short, and Davies* Cole & Bapallo, for app’lt; D. O’Brien, Att’y-G-en., for the people.

       Affirming 38 Hun, 276.

   Earl, J.

This action was commenced to recover certain taxes claimed to be due from the defendant, under chapter 542 of the Laws of 1880, as amended by chapter 361 of the Laws of 1881 and chapter 151 of the Laws of 1882. The plaintiffs claim in their complaint that there was due January 1, 1882, from the defendant, the sum of $7,500, being the tax at the rate of one and one-half mills of each dollar of valuation of its capital stock at $5,000,000, and also $1,500, as a penalty for neglect or refusal to pay the tax for two years. They also claim that there was due January 1, 1883, from the defendants, the suffi of $30,000, being a tax at the rate of one-quarter of a mill for each per centum of dividends declared during the year, ending November 1, 1882, upon $10,000,000, the par value of defendant’s capital stock, the dividends declared being twelve per centum; and also $3,000 as a penalty for neglect or refusal to pay the tax within fifteen days from January 1, 1883. The defendant is a foreign corporation, incorporated under the laws of the territory of Utah. The plaintiffs recovered the amount of taxes and penalties claimed, and the defendant complains of the recovery upon several grounds, which will be separately considered. The constitutional objections to the acts under which these taxes were imposed have been sufficiently considered in prior decisions of this court, and the acts must now be regarded as free from constitutional objection, and therefore valid. People v. Home Ins. Co., 92 N. Y., 328; People v. Equitable Trust Co., 96 id., 387; People v. Cold and Stock Tel. Co., 98 id., 67. We have now, therefore, only to construe the acts, and apply them to the facts of this case.

1. The defendant claims that it was a manufacturing corporation, carrying on manufacture within this state, and therefore not liable to taxation under section 3 of the Act of 1881, which excepts such corporations from taxation under that act. As appears from its articles of association, the defendant was organized to conduct the business of mining in Utah territory; of the buying, selling, leasing, and operating mines and mining claims in that territory, and smelting, reducing, and refining works there or elsewhere; of conducting a general mining, milling, and smelting business in all its branches, including buying and selling mineral ores and bullion, carrying on a general mercantile business by buying and selling such goods, merchandise, stores, and miners’ supplies as are usually kept in and required by the wants of a mining camp or settlement; of the building and operating all such roads, tramways, and transportation routes as may be convenient in transporting the products of its business or procuring supplies; of purchasing, hiring, and holding all such real and personal property, wherever situate, as may be required in carrying on any of its business, and, when no longer required for business purposes, leasing, selling, or exchanging the same; and, generally, to do all acts and things incidental to a general mining business, or to any of the specified pursuits, the corporation being primarily formed for the immediate purpose of working and developing the éstate, property and premises known as the “Horn Silver Mine/’ and for the treatment and reduction of the ores and metals therein contained. The business of the defendant in Utah consisted in mining the ore, and manufacturing it into base bullion. The bullion was then shipped to Chicago, where it had a refinery, in which the lead was smelted from the base bullion, and separated from the silver.. The bullion thus refined was then shipped to the city of New York, where it was delivered to the United States assay office, where it was still further refined into standard silver bars, for doing which the defendant paid two per cent, of the silver. It generally sold the receipts issued for the silver by the assay office in the city of New York, and so much of the proceeds as were not used there were transmitted to Utah and Chicago for use in the business of the company at those points. It did not have or carry on within this state any refining or manufacturing establishment, and its claim to be a manufacturing corporation carrying on manufacture within this state is based solely upon the fact that it delivered its bullion to the assay office, to be further refined for a compensation to be paid by it. Upon these facts the referee found that it was not engaged in manufacture within this state, and we are of the same opinion. As its name implies, it is: a mining corporation, and was organized primarily for that-purpose, and all its other business was incidental, connected «with, and related to that. But even if it could, in any proper sense, according to the common understanding of the phrase used in this statute, be deemed a manufacturing corporation in Utah, yet it cannot with any propriety be said that it carried on manufacture within this state. According to common comprehension, and the ordinary use of language, the process of refining this bullion at the assay office was not a manufacture and the assay office was not-a manufacturing establishment. But, whether it was- or not, the defendant, which employed the assay office for a compensation to refine the bullion, was not itself engaged in the manufacture. It was no more a manufacturer than a farmer is who takes his grain to the gristmill to be ground into flour for a part of the grain, or a money .compensation, or who takes his wool to a cloth manufacturer to be made into cloth for a compensation, and then to be returned to him. A railroad company may manufacture all its cars and engines, and yet it cannot be properly classified as a manufacturing company.

The definition of the terms “manufacturing corporations” and “manufacture,” as derived from some decisions- and statutes to which our attention .'has been called, is of little service in the construction of the language of this act. These terms must be construed in view of the general purposes of the acts in which they are used, and the general phraseology found in connection with them. To give effect to the legislative intention, their ordinary meaning may be enlarged or restricted. Under this section it is not sufficient, to exempt a corporation from taxation, that it is a manufacturing corporation, but it must also carry on manufacture within this state. In exempting such corporations from taxation under the act, the legislature may be supposed to have been influenced by two things—a desire to encourage manufacture within the state, and the fact that a corporation carrying on any manufacturing business within the state would necessarily have visible, tangible property, hable under the general laws of the state to taxation. We are therefore constrained to hold that the defendant cannot be allowed the exemption claimed.

2. It is claimed that the defendant was not, during the years 1881 and 1882, “doing business in this state,” and that, therefore, it was not liable to taxation under the act-of 1881. It is quite true that by far the larger share of its business was carried on in Utah and at Chicago. But its president, secretary and treasurer had their offices in New York; the directors held their annual meetings there; its dividends were declared and paid there; its silver bullion was all sent there and sold there, and the proceeds of it received there; some of the proceeds were deposited in banks, some loaned in the city of New York, and some of it used for the purposes of the company in that city, and the balance was transferred to Chicago and Utah for use in the business of the company. There was thus a very substantial portion of its business done in the city of New York. The business did not consist of occasional transactions, but an office was kept there, and the business continuously transacted there during the whole year. We cannot construe the words ‘ ‘ doing business in this state ” to mean the whole business of the corporation within this state; and, while we are not prepared to hold that an occasional business transaction—that keeping an office where meetings of the directors are held, transfer books are kept, dividends declared and paid, and other business merely incidental to the regular business of the corporation is done—would bring a corporation within this act; yet when, as in this case, all these things are done, and, in addition thereto, a substantial part of the regular business of the corporation is carried on here, then we are unable to say that the corporation is not brought within the act as one “doing business in this state.” There is no injustice in subjecting to taxation such a corporation, enjoying the benefits of our great mart, the advantages of our social order, and the protection of our laws.

3. .It is further claimed that, in computing the taxes, only the amount of defendant’s capital employed within this state should have been taken as the basis, and not its entire capital. We do not perceive how it is possible to limit the computation of the taxes as thus claimed.. Section 1 of the act of 1881 provides that hereafter it shall be the duty of the president and treasurer of every corporation liable to be taxed on its corporate franchises or business, to make a report to the comptroller annually in writing, stating specificially the amount of “capital” paid in; that in all cases where any such corporation shall fail to make or declare any dividend upon either its “ common or preferred stock,” or in case the dividend or dividends made or declared upon either its “common or preferred stock ” during the year shall amount to less than six per centum upon the par value of the “stock,” the treasurer and secretary thereof shall in each year in which no dividend has been made or declared, or in which the dividend made or declared upon either its “common or preferred stock” amounted to less than six per centum upon the par value of the “stock,” estimate and appraise the “capital stock ” of the company upon which no dividend has been made or declared, or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum, at its actual value in cash, and shall forward a certificate thereof to the eomproller. Section 3 provides that every corporation incorporated under any law of this state, or under the laws of any other state or country, and doing business in this state, except savings institutions and other corporations named, shall be subject to and pay a tax upon its corporate franchise or business, tb be computed as follows: If the dividend or dividends made or declared by such corporation, joint stock company or association during any year amount to six or more than six per centum upon the par value of “its capital stock,” then the tax to be at the rate of one-quarter mill upon the “capital stock” for each one per centum of dividends so made or declared; or if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of “the capital stock,” then the tax to be at the rate of one and one-half mills upon each dollar of a valuation of the “capital stock” made in accordance with the provisions of the first section of the act. And in case any such corporation, joint stock company or association shall have more than one kind of “capital stock”—as for instance, “common and preferred stock—and upon one of said stocks a dividend or' dividends amounting to six or more than six per centum upon the par value thereof has been made or declared, and upon the other no dividend has been made or declared, or the dividends made or declared amounted to le'ss than six per centum upon the par value thereof, then the tax shall be at the rate of one-quarter mill for each one per centum of dividend made or declared “ upon the capital stock,” upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum ; and, in addition thereto, a tax shall be charged at the rate of one and one-half mills upon each dollar cf a valuation, made also in accordance with the provisions of the act, of “the capital stock” upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum. It is very clear from this review of the two sections that the whole capital stock—the same stock upon which dividends are declared and paid—is to be taken as the basis of taxation. And so we held in People v. Equitable Trust Co. (96 N. Y., 397), where we said that “we find no authority in this act for apportioning a tax upon such a corporation as this upon the amount of dividends earned in this state, or upon the amount of capital stock employed in this state.” But it is claimed that since the act of 1882 a different construction should be given to the act of 1881. The act of 1882 did not amend any of the sections of the act of 1881, but added thereto three sections, the first of which, section 11, it is important only to notice. That provides that when the comptroller is dissatisfied with the report of any corporation or association or joint stock company liable to pay a tax under any of the provisions of the act, whose capital is only partially employed in this state, he is authorized to fix and determine the amount of capital stock which in his judgment shall be the basis for the tax under the provisions of the act, and to settle an account for the taxes, penalties, and interest due the state thereon; and any association, corporation, or joint-stock company dissatisfied with the account so settled may, within ten days after notice thereof, appeal therefrom to a board consisting of the secretary of state, attorney general, and state treasurer, which board, on such appeal, shall affirm or correct the account so settled by the comptroller, and the decision of such board shall be final. Under the act of 1881, it was the duty of every corporation liable to taxation under that act, annually to make a report to the comptroller, stating specifically the amount of its entire capital paid in, and the amount and rate of per cent of each dividend declared during the year; and in case it had declared no dividend during the year, or a dividend of less than six per centum upon the par value of its stock, it was also required to send a verified estimate and appraisal of its capital stock to the comptroller, and it was provided that, if the comptroller was not satisfied with the valuation so made and returned, he could make a valuation thereof, and settle an account upon a valuation made by him for the taxes, penalties, and interest due the state thereon. And it was further provided that, if the corporation was dissatisfied with the account so settled, it could appeal to a board consisting of the secretary of state, attorney general, and state treasurer, which board, on such appeal, could affirm or correct the account as settled by the comptroller, and the decision of such board was final. Under that act the whole capital stock was to be reported, and, in the cases provided, the whole capital stock was to be estimated and appraised, and all the clear and express provisions in the act of 1881 are left unrepealed. Now, what was meant by section 11 in the act of 1882? It does not authorize the corporation, in making the report required by the first section of the act of 1881, to report only the amount of its capital employed within this state, and it does not require the comptroller to take the amount of capital so employed as the basis of taxation. The utmost effect that can be given to it is to authorize the comptroller, when he shall ascertain that only a portion of the capital of a corporation is employed within this state, to fix and determine the amount of capital stock which in his judgment shall be the basis of the tax under the provisions of the act. That was an authority which he did not have under the act of 1881. Under that act he had no right to review the report of the corporation as to the amount of its capital stock; but under the Act of 1882, in all cases where a portion only of the capital stock of the corporation is employed within this State, he has a right to review the report, and "determine the amount of the capital stock which shall be used as a basis for the tax. There is another qualification to section 11, and that is, before the comptroller can be called upon to exercise his judgment and discretion he must be dissatisfied with the report of the corporation. Here there was no dissatisfaction on the part of the comptroller, and hence the emergency which authorized him to exercise his judgment, in fixing and determining the amount of capital stock which is to be taken as the basis for the tax, had not arisen.

That this is a proper construction of section 11 of the. act of 1882 is made more clear by reference to chapter 501 of the Laws of 1885. In that act, section 11 is amended so as to provide hi distinct terms that the amount of capital stock which shall be the basis for taxation under the provisions of section 3 of the act of 1881, in the case of every corporation, joint-stock company, and association liable to taxation thereunder, “shall be the amount of capital stock employed within this state.” Then, for the first time, the basis for computing the tax was actually fixed by law at the amount of capital stock employed within this state, and the discretion conferred upon the comptroller by the .same section in the act of 1882 was taken away.

Therefore, while it is extremely hard and unjust that the defendant should be required to pay a tax computed upon the basis of its entire capital stock, we are unable so to construe the statute as to relieve it therefrom. The injustice of such a basis, of taxation has finally been recognized by the legislature, and it is quite unfortunate for the defendant that it is deprived of the benefit of this change, particularly as, by the fourteenth section of the act of .1885, the comptroller was authorized and directed, upon the application to him of any corporation, to make, settle, and adjust all accounts against such corporporation, joint-stock company, or association, for all taxes and penalties arising under the third section of the act of 1881 since the twelfth day of Hay, 1882, by taking as- a basis for taxation the-capital employed within the state by such corporation, association, or joint-stock company. But there was a further provision in section 14 that such corporation, joint-stock company, or association should not be entitled to the benefit of .a settlement upon such basis unless it shall have secured such adjustment, and paid into the treasury the full amount of the taxes so settled before the first day of August, 1885, nor in the case of any tax for which suit had theretofore been brought by the attorney general, and for which judgment had been entered therein. As judgment was entered in this action before the passage of that act, the defendant can have no benefit from its provisions.

4. We see no reason to doubt that the defendant was liable to the penalties imposed by section 2 of the act of 1881, for neglecting to pay the taxes within the time specified therein.

We are reluctantly brought to the conclusion that the judgment below cannot be reversed. If it be true that, as against all other corporations but this defendant and two or three others, the taxes have been computed upon the basis of the capital employed in this state, then the defendant has good reason to complain of unjust discrimination, and it may very properly appeal to the legislature for the relief which it has failed to obtain elsewhere. A great state can afford to be both just and magnanimous, and it is certainly against a sound public policy to treat with injustice foreign corporations who come to our great metropolis to transact their business, and thus add to the prosperity, wealth and importance of our state. Our conclusion is that the judgment should be affirmed, with costs.

All concur, except Peckham, J., dissenting, and Rapadlo, J., not voting. _


author: Andrews, J.

text:
    S. Hatch Gould et al., as Board of Health of Town of Brighton, Appl’ts, v. The City of Rochester, Resp’t.

      (Court of Appeals,

      Filed March 8, 1887.)

    Municipal corporations—Board on health of a town—Action by, to MAINTAIN ACTION TO SUPPRESS NUISANCE—LAWS 1850, CHAP. 824.
    The city oí Rochester huilt sewers discharging into ditches, which carried the sewage over lands in Brighton, creating an offensive and dangerous nuisance. The plaintiff passed a regulation prohibiting the discharge of sewage upon such lands, and declaring the discharge of sewage thereon by the city of Rochester to be a nuisance, and ordering it to be suppressed. Meld, that the city of Rochester was, within chapter 324, Laws 1850, “an occupant of premises in the town,” and that the board of health of the town of Brighton was authorized to maintain an action against said city to enforce its regulations and restrain the continuance of the nuisance.
    Appeal from judgment supreme court, general term, fifth department, affirming judgment dismissing complaint, entered on decision made at Monroe special term.

      The action was brought to obtain an injunction restraining the continuance by defendant of the discharge of sewage on to land in the town of Brighton and for damages.

      Walter S. Hubbell, for app’lts; Ivan Powers, for resp’t.

       Reversing 39 Hun, 79.

   Andrews, J.

The city of Rochester adjoins, on the east, the town of Brighton. It constructed sewers which discharged into ditches near the boundary between the city and town, which carried the sewage upon and over lands in Brighton, and ultimately into Thomas creek, a small stream running through the town and having its outlet at Irondequoit bay. The ditches were constructed by the city - under a general legislative authority to acquire land outside of the city limits, and open ditches thereon to carry off the drainage of the city. It is found that the discharge of the sewage through the ditches and into Thomas creek created a nuisance in the town of Brighton, dangerous to the public health.

On the 1st day of August, 1884, the plaintiffs, constituting the board of health of the town, enacted a rule or regulation prohibiting any person or corporation discharging or causing to be discharged upon any of the lands, or into any of the streams in the town of Brighton, the contents of any sewer in which is drained the contents of any privy, water closet or urinal, under a penalty. On the same day the board passed a resolution declaring that the discharge of the sewage of the city of Rochester from the Monroe avenue sewer and the East avenue sewer upon lands in the town of Brighton, and from thence into Thomas creek, was a nuisance, the ’ suppression and removal of which was necessary for the preservation of the public health, and ordering that the nuisance be suppressed, and imposing a . penalty for the violation of the regulation, and also authorizing the prosecution of any person or corporation violating the same, or the commencement of an action to restrain such violation, or otherwise to enforce the regulation. By, direction of the board, a copy of the regulation was posted in the town and served upon the city of Rochester, by there delivering it to the proper authorities of the city.

It is sufficient to state, without entering into details, that - the discharge of the filth from the sewers into the open ditches, and from them into Thomas creek, created an offensive and dangerous nuisance in the town. The sole question here presented is, whether the board of health of the town of Brighton is authorized to maintain an action against the city to enforce its regulation and to restrain the continuance of the nuisance. It is clear that there is a remedy by indictment and also by civil action at the suit of persons sustaining special injury by the unlawful acts of the defendants. The right of the board of health of the town of Brighton to maintain the action is challenged on the ground that it has no general capacity to sue, but only such as is specially conferred by the law under which boards of health are organized, and that the circumstances of this case do not bring it within the authority conferred. It would seem that an action by the body representing all the inhabitants of the town, invoking the equitable power of the court to restrain the continuance of a wrong so vitally affecting the interests both of individuals and of the public at large, would be most appropriate. But it is undoubtedly true that the power to maintain the action, if it exists, must be found in the statute, and it is, therefore, necessary to ascertain what statutory powers are conferred upon boards of health and whether they include an authority to maintain an action under the circumstances existing in this case.

The original statute (chapter 324, Laws of 1850) “For the preservation of the public health ” and providing for the organization of health boards in cities, villages and. towns, conferred upon such boards, among other things, the power to make and publish rules and regulations for the “suppression and removal of nuisances” (section 3, subds. 3, 6) and prescribed a penalty for the willful violation of any regulation “so made and published.” Section 4. But the act conferred no power upon boards of health to maintain any action to enforce their regulations, and it was held that actions could not be maintained by the board. People v. Supervisors of Monroe County, 18 Barb., 567. The powers of boards of health were, however, subsequently enlarged by amendments to the original act, and the powers of boards of health, as they now exist, are declared in the supplementary act, chapter 351, Laws of 1882. By the third section they are empowered “ to make orders and regulations in their discretion, among other things, for the suppression and removal of nuisances, and all such other orders and regulations as they shall think necessary and proper for the preservation of the public health,” and to enter upon, any place or premises where conditions dangerous to the public health are known or believed to exist, for the purpose of inspection, and also “ to receive and examine into the nature of complaints made by any of the inhabitants concerning causes of danger or injury to the public' health within the limits of its jurisdiction.”

Subdivision 6 of the same section confers the power and. makes it the duty of the boards of health “ to publish, from time to time, ail such orders and regulations of general obligation as they shall have made, in such manner as to secure early and full, publicity thereto, and to make without publication thereof, such orders and regulations in special and individual cases, not of general application, as they may see fit concerning the suppression and removal of nuisances, and concerning all other matters in their judgment detrimental to the public health, and to serve copies thereof upon any occupant or occupants of any premises whereon any such nuisances or other matters aforesaid shall exist, or by posting the same in some conspicuous place on such premises.”

The power of boards -of health to impose penalties and to maintain actions is declared in subdivision 9, as.follows:

‘ ‘ To impose penalties for the violation of, or non-compliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction, to collect such penalties not exceeding $100 in any one case, or to restrain, by injunction, such violations, or otherwise to enforce such orders and regulations.”

The power to maintain an action for an injunction, given by subdivision 9 above quoted, is, as will be observed, auxiliary only. It is not a general power to maintain actions for the suppression or removal of nuisances. It is a right of action limited to the special purpose of enforcing orders made by the board, or to restrain their violation. It presupposes, therefore, as a condition of its exercise, the existence of a lawful order, duly made, which has been violated or disregarded.

The courts below, while uniting in denying the right of the plaintiffs to maintain the- action, differ in the grounds of their decision. The learned judge at special term, after asserting the proposition that the jurisdiction of the board of health of the town of Brighton over nuisances was limited to nuisances existing within the territorial limits of the town, put his decision upon the ground that the order or regulation of August 1, 1884, was ineffectual and in excess of the power conferred upon boards of health, because the nuisance in question was created and had its origin in the city of Rochester, and that the town board could make no valid regulation in respect thereto, because, in the language of the court, its powers “are confined to the abatment of nuisances within the town, and the regulations they make have no force outside of the town lines.” It seems to us that this is quite too narrow a view of the situation.

It is undoubtedly true that the authorities of Brighton could not go into the city of Rochester and interfere with its sewers. But the collection of foul substances in the sewers was not the immediate cause of the nuisance. The immediate cause was the discharge by the city of the sewage after it was collected in the sewers, into open drains constructed by the city across lands in the town of Brighton. This discharge was prohibited by the order of August 1, 1884. The city, notwithstanding the order and in violation of it, continued the nuisance and permitted the sewers to continue to discharge their contents as before, and it continued also to use the ditches it had constructed in the town to carry the offensive matter to the creek. In respect to the East avenue sewer, the nuisance had its origin at Culver street, the dividing line between the city and town, where the sewer terminated.

It seems to us that the order of the board of health related to a matter within the town and within the jurisdiction of the board.

We agree with the special term that the board could not execute its order by going within the city to close the sewers, but the fact that it had no power to enforce á summary jurisdiction of this kind does not justify the conclusion that it could not invoke the action of the court to enforce in an orderly way the abatement of the nuisance.

The case of Regina v. Cotton, 1 Ellis & Ell, 203, arose under the nuisance removal act, 18 and 19 Vict., chap. 121, . and it was held that it did not authorize a summary proceeding before justices, at the instance of one parish, for the removal of a nuisance originating in another parish. The court said (Earl, J.): “It would be most dangerous to take away from the regular tribunals the investigation of such a question, often a most complicated and important one, and to transfer it to the jurisdiction of any two justices of the peace. ”

The general term, as we understand its opinion, put its affirmance of the judgment on the ground that under the act of 1882 it is a condition precedent to the right of a board of health to maintain an action to restrain the violation of, or to enforce, an order made by the board, that the order should have been served on the defendant, and that service under the act must be made within the territorial jurisdiction of the board. The order in question was served on the defendant by service on its proper officers within the city. It was, therefore, held that such service was not a compliance with the act and was not a performance of the condition precedent. We are unable to concur in this conclusion. The order of August 1,. 1884, was not a rule or regulation of general obligation of which publication was required within the first clause of section 3, subdivision 6, but was an order made in a special and individual case, under the last clause of the subdivision, which is to be served on the “occupant or occupants” of the premises on which the nuisance exists, “or by posting” the same on the premises. But the statute does not in terms require the order to be served within the town or jurisdiction where the nuisance exists, and we see no reason for so construing it. It is not necessary to determine whether the board of health of Brighton would have jurisdiction if the nuisance complained of was merely consequential, that is, if the nuisance having been created and existing in the city, affected injuriously, by corrupting the air or otherwise, the town of Brighton. But in- this case the city of Rochester constructed and controlled the ditches in the town through which the sewage was carried, and used them for its purposes. We think the city was, within the act, the occupant of premises in the town on which the nuisance existed, and was properly served with notice. The claim that the city did no new act after the order was made, if material is not well" founded in fact. It continued to discharge the sewage on to the town as before. If it had refrained from using the sewers the nuisance would have abated without further action. The case of Reed v. People (1 Park, 481), is not in point. That was an indictment for violating a regulation of a board of health, founded on the fourth section óf the act of 1850, before amendment, which made a willful violation of a regulation, “read and published” by a board of health, a misdemeanor. The regulation claimed in that case to have been violated had not been published, and this was a complete answer to the indictment. The court also expressed its opinion that service of notice upon a nonresident out of the jurisdiction, although he owned the premises on which the nuisance existed, followed by a mere omission to act thereunder, would not render him liable to indictment. We think the judgment in this case should be reversed. The statute should have a liberal construction in aid of the beneficial purpose of its enactment. The objections to the maintenance of the action are quite technical, and ought not, we think, to prevail.

All concur. _