author: Learned, P. J.:

text:
    BARBARA VAN VRANKEN, Appellant, v. THE CITY OF SCHENECTADY, Respondent.

      When the subject of a legislative act is expressed in its title — Constitution, art. 3,, sec. 16 — Limitation upon the right to sue a municipal corporation— Constitution, a/rt. 8, sec. 8.
    Chapter 294 of 1882 is entitled “An act to amend chapter three hundred and eighty-five of the Laws of eighteen hundred and sixty-two, entitled ‘An act to amend and consolidate the several acts relative to the city of Schenectady.’ ” It amended the first title of the prior act by adding thereto a new section, which declared that the city should not be liable for injuries sustained by defective sidewalks, etc., unless actual notice of the defect should have been given to the common council or superintendent of streets at least twenty-four hours previous to the injury; it also required ail claims to be presented within three months from the time they arose, and all actions to be brought, thereon within one year.

      Held, that the act of 1882 clearly and distinctly expressed its subject, to wit, the amendment of the act of 1862.
    That the title of the act of 1862, “An act to amend and consolidate the several acts relative to the city of Schenectady,” expressed the subject embraced in the section, added by the act of 1882, and that such amended act did not violate-the provisions of the sixteenth section of the third article of the Constitution.
    That the restriction upon the right to sue the city, imposed by the section added by the act of 1882, did not violate the third section of the eighth article of the Constitution, providing that “all corporations shall have the right to sue, and shall be subject to be sued, in all courts in like cases as natural persons.”'

      Cray v. City of Brooklyn (2 Abb. Dec., 268, and 10 Abb. [ÍT. S.J, 186), followed.
    Appeal by the plaintiff from a judgment of nonsuit, rendered at the Schenectady Circuit upon the plaintiff’s opening of the case-to the jury.
    The action was brought to recover for personal injuries sustained by the plaintiff by reason of his having fallen on a sidewalk in the city of Schenectady.

      Alex. J. Thompson, for the appellant.

      S. W. Jackson, for the respondent,
   Learned, P. J.:

• This is an appeal from a judgment upon a nonsuit. It was agreed that, as the principal question was one of law, the plaintiff’s counsel should state the facts in his opening and make a certain statute on which the question turns a part of the opening. This was done; and thereupon the court nonsuited.

The first point on the appeal is that chapter 294, Laws of 1882 is a private statute and should have been pleaded. That is not well taken. The defendant would have been permitted to amend its answer if necessary. And again the plaintiff’s counsel stated the statute in his opening according to the arrangement, and therefore it was before the court, without regard to the pleading.

The second point is that this statute is void as a private act ■embracing more than one subject and subjects not expressed in the title. (Const., art. 3, § 16.) The title is: “An act to amend chapter three hundred and eighcy-five of the Laws of eighteen hundred and sixty-two, entitled an act to amend and consolidate the several acts relative to the city of Schenectady.” The act is an amendment of the first title of the previous act by adding thereto a new section to be known as section four. This section declares that the ■city shall not be liable for injuries sustained by defective sidewalks, etc., unless actual notice of the defect shall have been given to the common council or superintendent of streets at least twenty four hours previous to the injury. It also provides that claims must be presented within three months; and actions brought within a year.

The act is undoubtedly, in its provisions, an amendment of the previous act. Therefore the title literally expresses - the subject. Probably, however, we should go a step further and inquire whether the title of the act which is amended expresses the subject -of this amendatory act. That presents the question whether such .a restriction of liability as is contained in this act of 1882 could, under the Constitution, be properly embraced within an act entitled like the law of 1862 above cited.

The plaintiff urges, that this act of 1882 restricts the common law liability of the city in respect to persons in general, and thus that it forms no proper part of a law establishing and regulating the city government, such a law as is called the charter of the city.

¥e cannot agree with this view. The liability of the city to persons who are injured by a defective condition of a sidewalk, or the like, must arise from the fact that some statute has imposed on the city a duty of keeping such sidewalk in order. That duty is usually imposed by tbe charter of the city (to use a convenient word), which authorizes and directs the city to construct and maintain sidewalks, repair pavements, etc. We are not prepared to say that, if the charter were entirely silent on these matters, any duty would arise. The authority of the city over the streets depends upon the charter. (2 Dillon Mun. Corp., § 538.) The legislature might impose the cai-e of the streets upon the city, or on some independent officer. Hence it seems clear that provisions in regard to the power and authority of the city over the streets within its limits, might be properly included in a city charter without any specification of that subject in the title.

The provision heretofore cited in regard to the twenty-four hours* notice is really a regulation as to the duty of the city in respect to the streets. It declares that, so far as individuals are concerned, the city shall not be liable to repair the streets, except after this actual notice, and thus regulating the liability, it practically regulates the duty which the city owes to individuals.

A question similar to this arose in Gray v. City of Brooklyn (2 Abb. Dec., 268, and 10 Abb. [N. S.], 186), in which the Court of Appeals sustained the validity of a similar provision. And in that ease the court also considered the effect of article 8, section 3 of the Constitution, and held that such a provision was not in conflict with the latter sentence of that section.

It seems to us, therefore, that this provision must be held to be constitutional under the section last cited, and that it is not void on account of a failure to express the subject in the title of the act. (People ex rel. City of Rochester v. Briggs, 50 N. Y., 553 ; People ex rel. Gere v. Whitlock, 92 N. Y., 191.)

Another objection is taken, as follows: Chapter 694, Laws of 1870, section 1, repealed .title 1 of chapter 3S5 of the Laws of 1862, and enacted and substituted therefor a title therein set forth. Now chapter 294 of the Laws of 1882 purports to amend title 1 of chapter 385 of the Laws of 1862, which the plaintiff insists had been repealed. Of course, if the act of 1882 had spoken of the title as one which had been amended by chapter 694, Laws of 1870, there could be no doubt. ' Nor do we think there need be any, as it is. The act of 1870 substituted a new title in the consolidating act of 1862; and the meaning of the act of 1882 in referring to title 1 is clear. That is the first title of what is called the charter. Hence the act of 1882 referred to it, without noticing the fact of the amendment of 1870. The meaning is plain.

It is admitted that there had been no actual notice given as required by the act of 1882. Following the decisions, therefore, which we have above cited, we feel bound to hold that the plaintiff cannot recover.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Boaedman and Potter, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: BoardMAN, J.:

license: Public Domain

text:
    WILLIAM T. KELLAM, Appellant, v. HORACE W. McKOON, Respondent.

      Notary — certificate as to protest of note and sendee of notice — a second certificate may be made if the first be lost— Oode of Qiml Procedure, sec. 928.
    TiThere a certificate showing the protest of a promissory note, and the service of a notice thereof has heen made hy a notary, as prescribed by section 923 of the Code of Civil Procedure, and the same has been lost, a second certificate may be given by the notary and may he read in evidence with the same force and effect as the original.
    Appeal from a judgment of the County Court of Sullivan county, ■ dismissing the complaint upon the merits.
    The action was brought by the holder of a promissory note against the indorser thereof. It was claimed, that the note had been lost after it came into the possession of the plaintiff. The principal question arose upon the admissibility of a certificate of a notary, showing .that the note had been duly protested and the indorser notified thereof.

      John F. Anderson, for the appellant.

      Lewis F. Garr, for the respondent.
   BoardMAN, J.:

May a notary public of this State make more than one certificate of protest for purposes of evidence under section 923 of the Code of Civil Procedure? Tbis is the important subject of inquiry upon this appeal.

For the purposes of this discussion we will assume it to be true, though not conceded, that the first certificate of protest was attached to and lost with the note sued upon, as a lost note; that a second certificate is procured from the notary and duly authenticated. Such certificate is offered in evidence against the defendant, an indorser, who objects to it.

First. Because it is not the certificate made by the notary at the time of the protest, and

Second. Because it don’t appear that the notary is dead or absent from the State so that his attendance cannot be procured.

The objections were sustained- and plaintiff excepted. As the plaintiff could not establish the liability of the defendant by reason of the exclusion of such evidence the complaint was dismissed, with costs.

We are of the opinion the decision of the learned county judge was erroneous. No reason can be assigned why a notary may not issue several certificates of protest, each of which shall be an original and competent as evidence. The language of the Code (§ 923) does not forbid such construction. The reason of the law is sustained by such construction. The object was to save the necessity of producing the notary upon the trial to prove a necessary but technical act in order to charge the indorser. If the first certificate is lost or destroyed, what reason can be assigned against the use of a second one as evidence, which ought not to be equally valid against the first. It is presumptive proof authorized by statute. It is like a transcript of a justice’s judgment or proof of service of a summons or other paper. In case of loss a second transcript or new proof of service may be had equally as effectual as the first. Numerous illus trations might be given, where official power is not exhausted when an act is once done. Certificates of sheriffs, county clerks, judges, etc., are made evidence. But the loss of one certificate does not bar the officer from giving a second, and the second is of equal force with the former.

There is no limit in this State when such certificate may be made. CoweN, J., says, in Cayuga County Bank v. Hunt (2 Hill, 638): “ It is no objection that the certificate * * * was drawn up by the notary two years, or any other length of time after notice was given. The statute gives it as a substitute for his personal testimony at the trial. It is properly called for and may be drawn up when it happens to be wanted as evidence.” It is evidence created under the statute, and so long as it is made pursuant to the statute, it may be duplicated as often as may be necessary.

The defendant cites, with some confidence, Dutchess County Bank v. Ibbottson (5 Den., 110). That case very properly holds that evidence of the contents of a lost certificate of protest is not competent, because the statute has not made it competent. The notary could be produced, or, in our view of the case, a new certificate, could have been procured of him. It is not the original or fii'st certificate which is made evidence by the Code, but the certificate of the notary who protested the note.

Several positioris are taken by the respondent which were not taken on the trial, for instance1st. That there is no evidence the party giving this certificate of protest was a notary at the time he executed it. 2d. That the note referred to in the certificate is not shown to be the one in suit.

Neither of these objections were made upon the trial to this evidence, and, if they had been made, it is- apparent they might have been obviated by additional evidence upon those points, if at all necessary. Hence they will not be regarded upon this appeal. However plausible the respondent’s arguments may be, we are convinced they are unsound.

The judgment of the County Court must be reversed and a new trial granted, costs to abide the event.

LearNEd, P. J., and Potter, J., concurred.

Judgment reversed and new trial granted, cos.ts to abide event.


author: BoaedmaN, J.:

text:
    WILLIAM L. FORD and Others, Respondents, v. CHARLES J. KNAPP and Others, Appellants.

      Tenants in common — in an action for partition no allowance will he made for improvements made by one without the assent of his cotenani — no allowance is made to a purchaser under an execution sale for improvements made before the time to redeem, has expired — Gode of Oivil Procedure, secs. 1441, 1461.
    Three judgments were recovered against one Whitaker; one by a bank on July-11, 1878; one by one Willse on December 4, 1879, and one by the plaintiffs on January 12, 1880. Bach judgment became, at the time of its recovery, a lien upon an undivided one-half interest in about six acres of land, upon which was a valuable water power and grist-mill, the said undivided half interest being then owned by the said Whitaker. February 23, 1880, the other undivided half interest in the said premises was purchased by the defendants, who on that day entered into possession of the premises. On March 9, 1880, Whitaker’s interest in the premises was sold under an execution issued upon the judgment recovered by the bank and purchased by the defendants. On June 9, 1881, Willse redeemed, under his judgment, from the said sale, and on the same day the plaintiffs redeemed, under their judgment, from the redemption so made by Willse. Between March 9, 1880, and March 9,1881, the defendants expended large sums of money in remodeling and enlarging the mill, and also expended, prior to the commencement of this action, other sums of money for repairs, taxes and insurance. These sums were expended without any agreement or assent upon the part of Whitaker or any of his three judgment creditors.
    In an action brought by the plaintiffs for a partition:

      Held, that no allowance should be made to the defendants for the improvements made by them.
    That as the court did not charge them for the use and occupation of the premises, it was proper to make no allowance for the amounts they had expended for necessary repairs, taxes and insurance.
    On February 23, 1880, Dorcas Whitaker, the wife of the judgment-debtor, being then seized of an inchoate right of dower in the whole of the said premises, executed and delivered to the defendants a quit-claim deed of all her right, title and interest, as, wife of the said Whitaker, in the premises sought to be partitioned.

      Held, that this deed was ineffectual to extinguish the wife’s inchoate right of dower in the undivided half of the premises then owned by her husband, and that the sale in this action was properly directed to be made subject thereto.
    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    This action was commenced July 2, 1881, and was brought to partition certain real property situated in the village of Deposit,. Broome county, N. T. ; tbe said premises consisting of about six acres of land, on which was a valuable water-power and grist-mill, operated by both water and steam.
    July 11,1878, while Stephen F. Whitaker was the owner of an undivided half of the said premises, a judgment was recovered against him by a bank for $18,247.21, which became a lien on his said undivided half. December 4,1879, Benjamin W. Willse recovered a judgment against the said Stephen F. Whitaker for $1,109.75, which also became a lien on his undivided half. January 12, 1880, the plaintiffs in this action recovered a judgment against the said Stephen F. Whitaker for $423.51, which also became a lien upon his undivided half. February 23, 1880, Charles J. Knapp, Herbert W. Knapp, and James H. -Knapp, three of the defendants, purchased the undivided half of said premises not owned by said Stephen F. Whitaker, from Stephen Whitaker, Jr., to whom his father, Stephen, had conveyed them by a deed, in 'which his wife did not join, and on that day they entered into possession of the whole of said premises. On the same day, and as the defendants claimed, pursuant to the same agreement, Dorcas Whitaker, the wife of Stephen, executed and delivered to the defendants a quit-claim deed of all her right, title and interest, as wife of Stephen, in the whole of the said premises. March 9, 1880, Stephen F. Whitaker’s undivided half was sold to Charles J. Knapp, Herbert W. Knapp and James H. Knapp, for $4,500 upon an execution issued on the first above described judgment of $18,247.21. June 9, 1881, the said Willse redeemed upon his judgment to the amount of $600 and satisfied his judgment to that amount. On the same day the plaintiffs redeemed' on their judgment over Willse paying the sheriff $5,493.75, being the amount bid by the Knapps, with interest, and the amount of Willse’s redemption, and satisfied their said judgment of $423.51, under which they redeemed. Between March 9,1880, and March 9,1881, while the title to the undivided half, acquired June 9, 1881, by the plaintiffs was in the said Stephen F. Whitaker, Charles W. Knapp, Herbert J. Knapp and James Knapp remodeled and enlarged the mill building on the said premises, and expended in repairs and improvements the sum of $10,206.30. They also paid taxes to the amount of $283.13 and insurance to the "amonnt of $175.35.

      At the time the Knapps purchased tbe property they knew its •condition, and at the time they were making the repairs and improvements, they knew that subsequent judgment creditors had the right to redeem from the sheriffs sale until the-expiration of fifteen months from date thereof.
    All the said repairs and improvements were made within twelve months after the said execution sale, and the said Stephen F. Whitaker, Benjamin W. Willse, William L. Ford and John B. Perry did not, nor did either of them, enter into any agreement in respect to ■such repairs and improvements, or assent thereto.
    The court held and decided that the defendants were not entitled to be allowed any sum for their improvements, and that the plaint-tiffs were not entitled to compensation for the rent or use of the said premises after the redemption and pending the action. It also held that the wife of Stephen Whitaker had an inchoate right of dower in the undivided one-half of the premises.

      Arthur More, for the appellants.

      David II. Carver, for the respondents.
   BoaedmaN, J.:

The case of Scott v. Guernsey (60 Barb., 163; 48 N. Y., 106) controls this action. The improvements made by Thompson, one tenant in common, were not allowed to him against his cotenants. See opinion of MasoN, J., in Special Term (60 Barb., 1J0, bottom of page); also opinion of Paeeee, J., (pp. W9, 180; also 48 N. Y., Ill, 112), as to facts showing James G. Thompson, a tenant in common in possession, when he made the last improvement, which was disallowed. This disallowance was affirmed by the Commission ■of Appeals, although the opinion does not state the facts clearly. The principle there established is this: A tenant in common in possession is not entitled to compensation for his improvements from his cotenants who have not assented to his making them. Of course there ai’e cases in which special equities have been recognized and allowed. There are also cases holding the reverse of this doctrine. Many are gathered in 13 Moak’s English Reports, 650 (■n), and 22 id., 319 (n), in appellant’s brief, and in the opinion of the learned justice at Special Term. The authorities are not at all uniform, and bence we must be guided by tbe decisions of our own, courts. *

The case of McCabe v. McCabe (18 Hun, 153) decided by this-court, is relied upon by tbe appellants. It is not analogous. The act charged there was tbe destruction of tbe common property, and tbe appropriating of the proceeds to tbe use of the tenant in possession. It was in tbe nature of waste. The value of tbe property taken away is lost to tbe common estate. A tenant in common of personal property becomes liable to his cotenant if be sell or destroy tbe property, but be cannot recover, if be improves its condition, for such increased value.

But tbe Code (§ 1461) apparently provides against what was done in this case. Tbe property was bid off by defendants in March,, 1880. For one year Whitaker, tbe judgment debtor, bad the right to redeem upon payment of tbe amount bid and interest. For such one year and three months, in addition, be remained tenant in common with defendants. Hoes not tbe judgment creditor, by putting-on expensive improvements, impair or prejudice tbe right of redenrption ?

Then, again, tbe person in possession during this fifteen months, by section 1441, is permitted to make necessary repairs, but not alterations or improvements thereon. Tbe acts of the defendant are thus seen to be in violation of this provision. All tbe improvements and expenditures were made during this time, and while the plaintiffs bad no interest in the property except tbe right to redeem after the expiration of one year from tbe sale. The title during this fifteen months was in Whitaker. Any equities arising from these expenditures were against Whitaker, and not against plaintiffs. The defendants made their expenditure at their own risk. It was not a matter which plaintiffs could assent to or dissent from, for they had no title. They did not even redeem from the defendants. After the defendant’s right under the sale had been extinguished by the redemption of Willse, the plaintiff redeemed from Willse. What was he entitled to by such redemption? The legal estate-of Whitaker at the date of the sale (Code, § 1440), and that was an undivided half of the premises. The defendants say no, we have added .to the value of the property after the sale and before the title vested in you by your redemption, and you are only entitled to an undivided one-quarter; we have by our act prejudiced your right of redemption so that you do not get the interest which we bought under the execution sale, and you must redeem under the changed condition of affairs caused by our voluntary expenditure and pay, or account to us for one-half of it, or else your right to redeem is lost and gone. This would impose a new condition of redemption, and we do not think the law will permit it. They were not tenants in common when the improvements were made, and the redemption did not subject the plaintiff to any equities between the defendants and their tenant in common, Whitaker, if any existed. As the court did not charge defendants with the use and occupation of the property, they could well afford to pay therefrom the necessary repairs, taxes and insurance, if the insurance was for the joint benefit. The right of dower of Dorcas Whitaker is not extinguished by the sale. The plaintiff’s half of the premises was subject to her inchoate right of dower, as stated in the decision and judgment, and the sale was made subject to it. We concur in the conclusion that her deed of February 23, 1880, did not release her inchoate right of dower.

The judgment must be affirmed, with costs.

Learned, P. J., and Potter, J., concurred.

Judgment affirmed, with costs.


author: BoardmaN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. JOHN M. DEMPSEY, THOMAS ANSBRO and GEORGE F. BACKMAN, Respondents.

      Criminal Procedure — appeal by the people_— it does not lie from, an order discharging a grand jury and quashing an indictment found by it.

    Under the Code of Criminal Procedure no appeal lies by the people from an. order made at a Court of Oyer and Terminer setting aside a panel of grand jurors, discharging them from service as such and quashing an indictment found by them.
    Motion to dismiss an appeal taken.by the district attorney on behalf of the people from an order made by a Court of Oyer and Terminer setting aside a panel of grand jurors, discharging them from service as such, and quashing an indictment found by them while acting as grand jurors.

      D. Cady Herrick, district attorney, for the appellant.

      Edward J. Meegan, for the respondents.
   BoardmaN, J.:

The facts and orders in this case are the same as in The People v. Fitzpatrick, decided at the last September (General Term (30 Hun, 493). In the latter case we considered the merits, and decided that the order setting aside and discharging the grand jury as to that defendant, and as to him quashing the indictment found, was erroneous. Sucli order was therefore reversed. ^__

Upon that occasion counsel on either side desired the court to pass upon the merits, and no question was. raised as to the validity of the appeal taken by the people from such order. The latter question was not, therefore, passed upon.

This appeal by the people arises upon the same state of facts, but1, the defendants now move to dismiss it upon the ground that the people have no right of appeal in the present instance, and hence the court can acquire no jurisdiction.

Formerly the people had no power to review an adverse decision. (People v. Corning, 2 N. Y., 9 ; People v. Comstock, 8 Wend., 549.) Afterwards, in 1852 (chapter 82, Laws of 1852), an act was passed giving the people the right to review judgments in favor of any defendant, except in case of acquittal by a jury. In 1879 and 1880, such right of review was further extended in favor of the people. But a writ of error at common law would uot lie1 on behalf of the people after a judgment of acquittal (People v. Corning, ut supra ; People v. Bork, 78 N. Y., 346), nor from an order quashing an indictment. (People v. Stone, 9 Wend., 191.)

But all these provisions have been abolished by the Code of Criminal Procedure (§ 515), and now the only mode of reviewing a judgment or order"in a criminal action is by appeal. No such mode of review ever existed before, and so we must look to the Criminal Code for all authority or limitation of authority. Unless the Code gives to the people this right of appeal, the appeal must be dismissed. By section 518 the people may appeal to the Supreme Court in two cases: 1st. Upon a judgment for the defendant on a demurrer to the indictment. 2d. Upon an order of the court arresting the judgment; neither of which cover the present case. In no other case has the right of the people to appeal to the Supreme Court been" given. The district attorney concedes that the right is not given by the Code of Criminal Procedure. The concession is fatal. This court may correct errors and mistakes only when they can be brought before us pursuant to law. The court below, through ignorance or corruption, may rule against the people on questions of evidence throughout a trial for murder, whereby a criminal is acquitted, but this court cannot correct such errors. So, too, of the drawing of a panel of jurors in a criminal case, however gross the error, and however fatal to justice the consequences may be, the action cannot be reviewed on behalf of the people. There is no' precedent for an allowance of an appeal in criminal cases outside and independent of the statute. We are not prepared to make one-in this case.

Happily we cannot believe any danger can arise from a willful disregard of the criminal laws or a corrupt purpose to thwart their due execution-by.-hidicial officers./ The order in the case under consideration was made at the same time with the one in Fizpatrick’scase; hence our decision in that case could not have been known to the learned judge or aided in modifying his action in the present instance. _N or can we believe that any judge, after the decision of' the Fitzpatrick case, would, on the same facts, disregard that decision, even though that appeal was unauthorized by law. The question may be very easily determined by the court- of last resort, as in the Pebrea case (92 N. Y., 128), by deciding such motions in accordance with our former opinion and leaving the defendant to test the. correctness of the same.

For the reasons stated we think this appeal must be dismissed.

LbaRned, F. J., and Pottek, J\, concurred.,

Appeal dismissed.


text:
    RICHARD CHAPIN, Respondent, v. THE MERCHANTS’ NATIONAL BANK OF WHITEHALL, Appellant.

      Action to recover a chattel — when the facte showing the detention to he unlawful need not he specifically alleged in the complaint — Gode of Oivil Procedure, sea. 1721.
    The complaint in this action, brought to recover two certificates of stock issued by the defendant, or their value, alleged that on the 3d of October, 1878, the plaintiff was, and that he still is, the owner of the said certificates; that while the plaintiff was such owner, and on or about the said third of October, the said certificates came into the custody and possession of the defendant, and that, although often requested by the plaintiff to return the same to him, it had refused so to do, and that it had, on the contrary, converted the same to its own use.

      Held, that it was not necessary, under section 1721 of the Code of Civil Procedure, to allege in the complaint any facts showing the detention of the certificates by the defendant to be unlawful, and that a demurrer interposed thereto, upon the ground that it did not state facts sufficient to constitute a cause of action, was properly overruled.
    Appeal from an interlocutory judgment entered upon an order overruling a demurrer interposed to. tbe complaint.

      J. bcmford Potter, for tbe appellant.

      O. F. <& li. It. Davis, for tbe respondent.
   Learned, P. J.:

This is an appeal from a judgment interlocutory overruling a demurrer to tbe complaint.

The action is for trover or replevin to recover two certificates of stock issued by tbe said bank, or their value. It avers that on tbe 3d of October, 1878, tbe plaintiff was, and that be still is, the owner of these certificates, describing them; that while plaintiff was such owner, and on or about that day, the same came into the custody and possession of the defendant; that the defendant, though often requested by plaintiff to return the same, has refused so to do, and on the contrary has converted the same to its own use.

To this the defendant demurred, on the ground that the complains did not state facts sufficient to constitute a cause of action. The facts admitted are that the plaintiff was, and is, the owner of certain personal property; that the same came into the defendant’s possession; that the plaintiff has requested the defendant to return them; that the defendant has refused, and converted them to its own use. The defendant urges that these facts, if admitted, constitute no cause of action, and refers to section 1721, Code. He insists that some facts should be set forth showing that the detention was wrongful.

But, now, to illustrate the view talcen by the court below, let us suppose that the plaintiff had lost these certificates, and that the defendant had found them, and that on demand by plaintiff, the defendant refused to give them up. What other fact could be alleged than is alleged in this complaint ? How could the plaintiff set forth facts to show the detention to be wrongful ? It could not be necessary in such a case to detail the loss and the finding, because the material fact is the possession by the defendant, and the refusal to deliver .to the owner when demanded.

Scofield v. Whitelegge (49 N. .Y., 259) is entirely different. The complaint did not allege ownership by plaintiff, or demand by him or refusal by defendant. And the opinion of the court at page 262 and the reference to the printed papers in Levin v. Russell (42 N. Y., 251), show that if there had been an allegation of plaintiff’s ownership and of a demand and refusal, the case would have stood very differently.

The allegation of a conversion to defendant’s use, admitted to be true, shows of itself a cause of action in behalf of the plaintiff, who is admitted to be the present owner.

The judgment should be affirmed, with costs, with leave to defendant, in ten days after service of notice of affirmance and on payment of costs of demurrer and appeal, to withdraw the demurrer and to answer over.

Present — Learned, P. J., Boardman and Potter, JJ.

So ordered.


author: Potter, J.:

text:
    FRANKLIN HAND, as Supervisor of the Town of New Lebanon, Respondent, v. THE BOARD OF SUPERVISORS OF COLUMBIA COUNTY and CHARLES W. HINSDALE, Appellants.

      Taxes — duty of the county treasurer to apply a portion of the town taxes collected, from, railroad property to the redemption of bonds issued to aid it— how the duty may be enforced —1870, chap. 789, see. 4, as amended by chap. 288 of 1871 — Appeal — it lies from an order overruling a demurrer— Code of Civil Procedure, sec. 1349.
    Section 4 of chapter 789 of 1870, as amended by chapter 283 of 1871, provides that “ dll taxes, except school and road taxes,” or so much thereof as may be necessary, which shall be collected for the next thirty years on the assessed valuation of any railroad in a town which has issued bonds to aid in its construction, “shall be paid over to the treasurer of the county; ” and that it shall be the duty of the treasurer, “ with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him,” to purchase the bonds so issued by the town, or to invest such money if the bonds could not be purchased at or below their par value.'
    In this action, brought by the supervisor of a town against the board of supervisors and the county treasurer to compel them to comply with the requirements of the said law, the complaint alleged, among other things, that “ of the taxes levied by the board of supervisors of said county, in the years of 1869, 1870 ' and 1871, on the assessed valuation of said railroad in said town, and collected in said town by virtue of such levy,” there was paid over to the county treasurer, exclusive of school and road taxes, certain definite sums, specifying them, in each year, and that the said sums had not been invested as required by the act, but had been used for the general purposes of the county:

      Held, that the complaint was sufficient; that it was not necessary that it should explicitly aver that "all” the taxes collected had be'en paid over to the county treasurer.
    That the presumption was that the public officers had duly assessed, collected and paid over all the taxes as required by law; and that, even if this were not so, it was the duty of the county treasurer to apply such moneys as he actually received to the purposes specified in the act.
    An appeal lies to the General Term, under section 1349 of the Code of Civil Procedure, from an order overruling a demurrer interposed to the complaint.
    Appeal from a final judgment, and from an interlocutory judgment entered upon an order overruling a demurrer interposed to tbe complaint and from tbe said order.
    Tbe ground of tbe demurrer was : “ Tbat tbe complaint does not state facts sufficient to constitute a cause of action.”
    Tbe action was brought in behalf of tbe town of New Lebanon to compel a compliance on the part of the county with section 4 of chapter 789 of the Laws of 1870, as amended by chapter 283 of the Laws of 1871, in regard to the purchase of certain bonds of the said town and providing for their redemption.
    The law provides first, that “ all taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, etc., for which said town * * * has issued * * * bonds to aid in the construction of said railroad, shall 'be paid over to the treasurer of the county,” and that “it shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him (including the interest thereon), to purchase the bonds of said town, issued by said town, to aid in the construction of any railroad or railroads, when the same can be purchased at or below par; ” or to invest said money so paid to him as above mentioned for the redemption of said bonds.
    The complaint does not allege that “ all taxes except school and road taxes collected ” in said town for any year on the assessed valuation of said railroad have been paid over or tendered to the treasurer of the county, but “ that of the taxes levied, by the board of supervisors of said county in the years 1869, 1870 and 1871, on the assessed valuation of said railroad in said town, and collected in said town, by virtue of such levy, there was, after the 18th day of May, 1869, paid to said Clark (the predecessor of the defendant Hinsdale), as county treasurer of said county, exclusive of school and road taxes, as follows : of such taxes' so levied and collected in the year 1869, the sum of $434.69 ; in the year 1870, the sum of $685.16,” etc., and that such amount has been used by the county for county purposes.

      Cadman <& Iloysradt, for the appellants.

      Andrews <& Edwards and J. Rider Cady, for the respondent.
   Potter, J.:

This is an appeal from an interlocutory order overruling the defendants’ demurrer to the complaint herein, and allowing defendants to answer, upon payment of costs, within twenty days.

No answer was served, and after the expiration of the time, the plaintiff entered a judgment against the defendant, pursuant to said interlocutory order. The defendant also appeals to the General Term from the final judgment.

A point is made that the interlocutory order is not appealable. We are not inclined to take that view. Section 1349, Code of Civil Procedure, and the decisions under it, would seem to authorize an .appeal from an interlocutory order overruling or sustaining a demurrer, where leave to amend was given, and especially where the appeal from the interlocutory order was taken, before any judgment is actually entered. (See cases cited under the above section, Bliss Code.) Hence the decision upon the appeal from the interlocutory •order must be determined by the decision upon the appeal from the final judgment.

Upon the appeal from the final judgment, the appellants raise but ■one question, and that is substantially this, whether the plaintiff can maintain this action without alleging that the town has paid to the •county treasurer, at least for some years, “ all taxes collected ” of the said railroad in the said town.

The complaint or cause of action is 'based upon the statute of 1871. (9 Edm. Stat., chap. 283, p. 74.)

That act provides in substance that all taxes except road and ■school taxes, assessed and collected of railroads, in a town, city or village, bonded in aid of any railroad therein, shall be paid over to the county treasurer of the county in which said town, city, or village is located.

The county treasurer is required, with the money arising from taxes levied and collected as aforesaid, to purchase the bonds issued by said town, etc., on certain terms, if practicable; if not, the said treasurer is required to invest said money, with the accumulated interest thereon, in specified securities ; and any bonds so purchased ■shall constitute a sinking fund for the redemption and payment of the bonds issued by the town in aid of the railroad.

The complaint alleges that the moneys arising from the assessment and levy of the tax upon railroads in said town, except the road and school taxes, for certain specified years have been paid to one Clark, who was county treasurer for those years, and for certain subsequent specified years, while defendant Hinsdale was county treasurer, to said Hinsdale. That the moneys so paid to each of them were not used or applied by either Clark or Hinsdale, as required by statute, but have been paid over to and been used by the county for its own purposes, etc.

Now there is nothing appearing upon the face of the complaint to show that the sums of money specified in the complaint are not all the moneys assessed and collected of railroads for those years.

We apprehend the presumption would be that the public officers had duly assessed and collected the taxes, and paid all moneys so assessed and collected to the county treasurer, as required by law, and if so, upon this demurrer, the presumption has the same force as the fact. But if there was no such presumption, and it was a fact that only a part of the moneys assessed and collected of the railroad had been paid over to the county treasurer, that should not change the duty imposed by the statute, nor excuse the county treasurer from using and applying so much of such money as he receives, to the objects specified in the statute, nor does it confer any right upon the county to use said money for its purpose. The moneys raised in this manner, and from this source, are set apart by this law for a certain purpose, and cannot be devoted to any other without a violation of the statute, whether it be. attempted by the treasurer or by the supervisors of a county. (Bridges v. Board of Supervisors of Sullivan County, 92 N. Y., 570.)

The cases cited by the defendant seem to me to have no application to the principle involved in this statute. There are no contracting parties in regard to these taxes. The taxpayers of the town have made no contract with the county treasurer to do a certain thing, or to pay him all of certain moneys, and he has made no contract with them that in consideration of their doing so, he will use and apply these moneys, or invest them in a certain manner; they stand in no contract relation.

"We think the judgment should be affirmed, with costs.

Present — Learned, P. J.; Boardman and Potter, JJ.

Judgment affirmed, with costs.


author: Boardman, J.

text:
    In the Matter of the New York, West Shore and Buffalo Railroad Company to Acquire Lands of William Lounsberry and others.
   — Order affirmed, with costs. Opinion by

Boardman, J.


author: Potter, J.

text:
    The People of the State of New York ex rel. Michael F. Collins, Respondent, v. John D. Spicer, as Comptroller, etc., Appellant.

   — Order modified in accordance with opinion of Potter, J., and to be settled by him, without costs to either party. Opinion by

Potter, J.


text:
    Flora A. Scott, by Guardian, etc., Respondent, v. Lelatus J. Wood, Appellant.

   — Judgment and order affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J.

text:
    George C. Hemmingway, as Administrator, etc., Respondent, v. Jacob S. Poucher, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion hy

Learned, P. J.


author: Boardman and Potter, JJ.,

text:
    The People of the State of New York, Respondents, v. Frank Van Vechten, Appellant.

   — Judgment and conviction affirmed. Opinions by

Boardman and Potter, JJ.,

and by Learned, P. J., dissenting.


text:
    Richard Burke, as Admimistrator, etc. Respondent, v. Silas H. Witherbee and others, Appellants.

   — Judgment affhmed, with costs. • Opinion by

Learned, P. J.


text:
    Thomas Lape, Respondent, v. James Thompson, Appellant.—
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    John S. Perry, Respondent, v. The Board of Missions of the Protestant Episcopal Church in the Diocese of Albany, Appellant.

   — Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Board-man, J.

text:
    Joseph P. Taft, Respondent, v. The City of Troy, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Board-man, J.


text:
    Cornelius Van Derzee and another, Respondents, v. Harmon Slingerland, Appellant, Impleaded, etc.

   — Judgment modified as to rents and profits in accordance with opinion of Potter, J., and as so modified affirmed, without costs to either party. Order to be settled by Potter, J. Opinion by

Potter, J.


text:
    Lester Eckler, Executor, etc., Appellant, v. Orange Eckler, Executor, etc., and others, Respondents.

   — Decree affirmed, with costs against appellant. Opinion by

Learned, P. J.


text:
    Sylvia G. Milligan and others, Appellants, v. James Allen, Respondent.

   — Decree affirmed, with costs against appellants. Opinion by

Boardman, J.


text:
    Sophronia Carpenter, Respondent, v. Miranda Osborn, Appellant, Impleaded, etc.

   — Judgment affirmed,, with costs. Opinions by

Boardman and Potter, JJ.,

and by Learned, P. J., dissenting.


author: by Potter, J.

text:
    The Board of Supervisors of Tompkins County, Respondent, v. George H. Bristol and others, Appellants.—
   Judgment affirmed, with costs. Opinion

by Potter, J.


author: Learned, P.J.

text:
    William Allendorph, Respondent, v. John C. Wheeler, Appellant.—
   Judgment affirmed, with costs. Opinion by

Learned, P.J.


text:
    The People of the State of New York v. George F. Bachman and others.
   —> Appeal dismissed. Opinion by

Boardman, J.


text:
    Thomas Defreest, Appellant, v. Mary Alida Defreest and others, Respondents.

   — Judgment affirmed, with costs. Opinion by

Potter, J.


text:
    Lucy Dingman and another, Administratrix, Respondents, v. Peter McEwen, Appellant.

   — Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Margaret Becker, Respondent, v. Peter Barman, Appellant.—
   Judgment and order affirmed, with costs. Opinion by

Potter, J.


text:
    William H. Bloomingdale, Appellant, v. Augustus Sherman, Respondent.

   — Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Clay Whiteley, Respondent, v. Jane A. Zea, Appellant.—
   Judgment and order affirmed, with costs. Opinion by

Potter, J.


text:
    Marcus L. Bagley, Respondent, v. Hector Shaw, Appellant.—
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Boardman, J.;

text:
    Susan P. Dimmick, Respondent, v. John W. Redmond, Appellant.—
   Judgment of County Court reversed and that of justice affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., dissenting on opinion of Maynard, Co. J.


text:
    Milton Sutherland, Respondent, v. Adam Van Alstyne, Appellant.—
   Judgment affirmed, with costs. Opinion by

Potter, J.


text:
    Rensselaer Post, Respondent, v. Edward Lyke, Appellant.—
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    In the Matter of John C. Smith, an Attorney.
   — Order granted disbarring him.


text:
    In the Matter of Julius R. Thompson, an Attorney.
   — Order granted disbarring him.


text:
    Victory v. Blood.
   — Motion to correct order denied, with ten dollars costs.


text:
    Charles E. Cone, Respondent, v. Roswell Warner, Appellant.—
   Motion to go to the Court of Appeals denied, with ten dollars costs.


text:
    Oliver Porter, Appellant, v. William A. Robinson, Respondent.—
   Motion for re argument denied, with ten dollars costs.


text:
    The People of the State of New York, Plaintiffs, v. Knickerbooker Life Insurance Company, Defendant.

   — Order reversed, without costs.


text:
    Duncan Creighton, Appellant, v. Arthur Smith, Jr., Respondent.

   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    Harriet H. Armstrong, Appellant, v. Thomas Armstrong, Respondent.

   — Order reversed, without costs. Mem. by

Boardman, J.


text:
    Simeon T. Benjamin, as Trustee, etc., and others, Appellants, v. The National Ulster County Bank, Respondent.

   —; Order affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of the Attorney-General, v. The Atlantic Mutual Life Insurance Company.
   — Order confirming report of Cowen, referee, affirmed, with ten dollars costs and printing disbursements.


text:
    Mary J. Adsit, v. Thomas W. Hall and others.
   — Motion to dismiss denied, with ten dollars costs.


text:
    Charles G. Hill, Respondent, v. William H. Van Schoonhoven and others, Executors, etc., Appellants.

   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    John C. Donn and others, Executors, etc., Plaintiffs, v. The Board of Supervisors of Saratoga County, Defendants. Sidney Sherwood and others, Administrators, etc., Plaintiffs, v. The Same, Defendants.

   — Order affirmed, with ten dollars costs and printing disbursements in each case. Bocees, J., not acting.


text:
    The People of the State of New York v. Rose Prescott.—
   Order affirmed.


text:
    J. Henry Abbott and others, Respondents, v. Charles E. Woodruff and others, Appellants. Same v. Same.
   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    Peter Daws, Respondent, v. Samuel Daws and others, Appellants.—
   Order reversed, with ten dollars costs and printing disbursements, and motion to strike out trial fee denied.


text:
    Constance B. Price, Respondent, v. Stephen Brown and others, Executors, etc., Appellants.

   — Judgment affirmed, with costs.


text:
    Delan Hoffman, Respondent, v. Lewis E. Fellows and another, Executors, etc., Appellants.

   — Judgment affirmed, with costs.


text:
    John Strobridge, Respondent, v. Minor T. Jones and another, Administrators, Appellants.

   — Judgment affirmed, with costs.


text:
    William W. Hare, Appellant, v. Henry Scofield, Respondent.

   Motion for reargnment denied, with ten dollars costs.


text:
    Elias Smith, Plaintiff, v. Hiram W. Brundage, Defendant.—
   Motion to go to Court of Appeals, or reargument denied.


text:
    In the Matter of the Will of Thomas Hannah.
   — Decree affirmed, with costs against appellants personally, on opinion of surrogate.


text:
    John Montgomery and others, Executors, Respondents, v. Margaret L. Kerwin, Appellant.

   — Judgment affirmed, with costs.


author: BoaedmaN, J.;

text:
    Harvey Henderson, Overseer, etc., Respondent, v. C. Leroy Williams, Appellant.

   — Judgment affirmed, with costs. Opinion by

BoaedmaN, J.;

LeabNed, P. J., dissenting.


text:
    The Attorney General, v. The North America Life Insurance Company.
   — Order affirmed, without costs.


text:
    In the Matter of Removal of Richard C. Jennyss.
   —Matter to stand over to next term. Respondent to serve answer ten days before that term.


text:
    Temple v. Hind.
   — Cause stricken from calendar, and judgment.


text:
    Zadock B. Schoonmaker, Appellant, v. Walter S. Church and others, Respondents. Anna E. Shultes and Adam H. Shultes, Appellants, v. Walter S. Church, Respondent, Impleaded, etc.

   — Judgments affirmed, with costs, with leave to plaintiffs to serve complaints on payment of costs within thirty days after notice of judgment.


author: Bocees. J.

text:
    Alpheus Kinne, as Administrator, etc., Respondent, v. Thomas C. Kinne, Appellant.

   — Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollar costs. Mem. by

Bocees. J.


text:
    Reuben D. Path v. Le Grand B. Davidson.
   — Order affirmed, with ten dollars costs and printing disbursements.


text:
    Walter S. Church, Respondent, v. Anna E. Shultes, Appellant.

   Motion for reargument denied; order modified so as to direct issue to be tried on eight days’ notice of trial. Restitution to be stayed for forty days, to enable issue to bo tried.


author: Davis, P. J.:

text:
    In the Matter of EDNA ELVIRA LARSON.

      Child — right of the Female Guardian Society of New York to allow some suitable person to adopt it — when it is to be deemed abandoned —1849, chap. 244 — Writ of habeas corpus should not issue when the person is not in the custody of the respondent at the time of the application. .

    One Larson having left his wife Engla, in New York, in October, 1873, went to work on a steamer sailing to Europe; the wife went into service as a cook, and there remained until February, 1874, when, being about to become a mother, she-was admitted into a hospital, where, on April 9, 1874, a daughter was born. In May following the ladies of the hospital procured board for the mother and her child with a Mrs. Burpo, at Dobbs Ferry. The mother remained there until August of that year, when she returned to New York and entered into service, leaving her child with Mrs. Burpo under an agreement to pay her ten dollars a month for its board. She paid this sum until June, 1875, when being out of service she could no longer do so. In March, 1870, she went to Sweden and there learned of her husband’s death. She had not seen or communicated with Mrs. Burpo for several months before leaving this country. She left five dollars with a friend to be given to her, but it was never delivered. Mrs. Burpo, being unable to support the child, took it, in January, 1876, to a branch of the American Female Guardian Society, in New York, where it remained until the following February, when, with the consent and approval of the superintendent of the alms-house of the city of New York, it was indentured for adoption as authorized by the charter of the society (1849, chap. 244). After the mother returned to this country she heard that her child had been placed with the said society and went to inquire about it, and was then told by the matron that the child had been adopted, that she could never get it again and that she had better try and forget it. In February, 1880, she married again, and in 1888 applied by a writ of habeas corpus to compel tbe society to produce and surrender tbe child.

      Held, that tbe mother bad abandoned or neglected to provide for tbe child, within tbe meaning of those words as used in the eighth section of the charter of the society, and that the society was authorized to indenture the child for adoption, as it had done, without the consent of the mother, upon receiving the consent and approval of one of the officers declared by the said section to be the legal guardians of the child.
    That chapter 880 of 1873, providing for the adoption of minor children, did not affect or modify the provisions of the act incorporating the society relating to that subject..
    That the application should also be denied for the reason that it appeared that the child had not been in the custody or control of the society since 1876, and that the mother had knowledge of this fact when she made the application.
    That an order requiring the society to make a further return showing to whom, at what time, for what cause and by what authority it had parted with the custody of the child, was improperly granted and should be reversed.
    Appeal from an order of tbe Special Term directing tbe society known as tbe “ Home of the Friendless ” to make a further return to tbe writ of habeas corpus in this case, disclosing to whom, at what time, for what cause and by what authority the transfer of the custody of “one Edna Elvira Larson, the petitioner’s daughter, was made.”
    The “ Home of the Friendless ” is a branch of the “American Female Guardian Society,” which was incorporated by chapter 244 ■of 1849. By the sixth section of the act the board of managers were authorized to place a child, surrendered to it by its natural or legal guardians, by adoption or at service in some suitable employment, and with some proper person or persons, conformably to the laws of this State in regard to the binding out of indigent children, provided, that the terms of the indenture should be approved by the commissioners of the alms-house or by the surrogate of the city of New York. The eighth section provided that, in case of the death or legal incapacity of a father, or his abandoning or neglecting to provide for his family, the mother should be deemed the legal guardian of her children, for the purpose of making such surrender, and that “ in all cases where it is not known that there is within the State any person legally authorized to act in the premises, the mayor, alms-house commissioner, or surrogate of New York, shall be, ex officio, the legal guardians for the like purpose.”

      The petitioner also claimed to be entitled to an inspection of tbe books of the society under chapter 411 of 1869.

      F. Gebhard, for the Home of the Friendless, N. Y., appellant.

      J. F. MacShane, for Engla A. Andrews, mother of Edna Elvira Larson, respondent.
   Davis, P. J.:

The facts in this case, as they appear in the papers before ns, are in substance as follows: In November, 1872, one John A. Larson, and his wife, now Engla A. Andrews, who is the petitioner in this matter, came to this country from Sweden. They remained here until October, 1873, when John A. Larson left, telling the petitioner he had got work on a steamer sailing to Europe, and would have to leave her for a while. The wife shortly after went into service as a cook, and remained in service until February, 1874, when she was about to become a mother, and through some friends obtained admission to a hospital in Marion street, in this city, where on the 9th day of April, 1874, the child, who is the subject of this proceeding, was born. In May following the ladies of the hospital procured board for the petitioner and her child with a Mrs. Burpo, at Dobbs Ferry, where she remained until August of that year when she came back to the city and procured service as a maid and seamstress. She left her child with Mrs. Burpo under an agreement to pay her ten dollars a month for its board. From August, 1874, until June, 1875, she paid this sum monthly. At that time she went out of service and was unable to earn money to pay for the board of the child. It does not appear by her statement that she afterwards paid anything on the board, or visited, or saw the child. About the 1st of March, 1876, she went to Europe, and arrived in Stockholm, Sweden, about the first of May. There she was informed that her husband had died and been buried at sea. For several months prior to leaving the country she had not seen her child, nor paid anything for its support or communicated with Mrs. Burpo, but at the time of leaving she left five dollars in the hands of a fellow servant with directions to send the same to Mrs. Burpo and to tell her that she had gone to Europe and would be back in a couple of months. This circumstance shows the degree of her neglect, for Mrs. Burpo had about two months before taken the child to the Home of the Friendless. Neither the money nor the message was sent to Mrs. Burpo. A year afterwards, and in the latter part of March, 1874, the petitioner returned' from Europe. Mrs. Burpo testifies that after August, 1875, she heard nothing of the child’s mother- and received nothing for the care of the child, and having a large family of her own and being in very poor circumstances, she, in January, 1876, took the child, under the advice of some charitable persons, to the Home of the Friendless and left it there. The ladies in charge of the Home received the child in pure and tender charity because of its utter helplessness. It was their simple duty and they performed it faithfully.

On her return to this country, the petitioner learned for the first time that her child had been placed in,the Home of the Friendless, although it had been sent therein January, 1876, two months before she went to Europe. This fact fully justifies Mrs. Burpo’s statement as to the reasons which compelled her to take the child to the Home. The petitioner testifies also, that she then went to the Home of the Friendless and saw the matron in charge and told her she was the mother of the child, and asked for it. She was then informed, she says, that the child had been adopted out,” and that she could never get it again ; and the matron advised her to try and forget it. In February, 1880, she married one William Andrews, her present husband. In April, 1883, she sued out the petition in this case.

The return to the petition shows that at the time of the service of the writ the said Edna Elvira Larson was not in the custody or under the power or restraint of the said Society of the Home for the Friendless.”

That a child of similar name was for a short time during the month of January, 1876, in the “ Home for the Friendless,” in said -city; that the said child was brought to said Home ” by a woman who claimed that it had been abandoned ’ by its mother, and was in need of the care which might be extended by said institution.

That, with the consent and approval of the superintendent of the alms-house of the city of New York, who, by virtue of an act “ To incorporate the American Female Guardian Society,” passed April ■6, 1849, by the legislature of the State of New York, was created and constituted the guardian of such children, the said child was duly indentured for adoption, and that since the month of February, 1876, has not been in the custody, or under the control of the “ Home for the Friendless.”

It seems very clear from this state .of facts that the child was, within the meaning of the provisions of the act incorporating the American Female Guardian Society and the acts amendatory thereof, one which the mother had “ abandoned or neglected'to provide for” within the eighth section of that act. Whatever may have been her intention in that respect, the practical and real fact is that the petitioner had left her child for many months in the hands of Mrs. Bnrpo, making no provision for its support or care, neither visiting it herself nor letting Mrs. Burpo hear from her, until by reason of her poverty that lady was obliged to deliver the child to the Home of the Friendless for its care and protection. If in their power, it was the duty of the ladies in charge of that institution to receive and care for the helpless infant, and upon such a state of facts, a governor of the alms-house, or either of the other officers named in the eighth section of the act, became the legal guardian of the child, with power to approve of the disposition which it seems was afterwards made of the child by the Home of the Friendless, ■or, in other words,, by the American Female Guardian Society, of which the Home of the Friendless is a branch organized for the ■care of children. It was not necessary that the child should have been surrendered by the mother to the society, but it was sufficient that she should have abandoned it or neglected to provide for it. ’ In that case, the assent of the governor of the alms-house to its being adopted out,” constituted a lawful surrender and adoption of the child. The provisions of the act for the adoption of minor children (chap. 830, Laws of 1873) have nothing whatever to do with such cases, and have not affected the provisions of the act incorporating the Female Guardian Society, and the amendments thereto.

It follows that the return shows that the Home of the Friendless was in the lawful custody of the child in January, 1876; that in February, 1876, it made a lawful disposition of the child, and from that time forth ceased to have its custody; and that upon the showing of such a state of facts, the prayer of the petitioner is completely answered, because the parent, under such circumstances, has no lawful right to pursue and retake the child, and especially none to harass with litigation the Home of the Friendless, which temporarily sheltered and cared for her destitute and neglected babe.

But another reason why the order should not have been made is found clearly apparent from the fact that the case is one in which the writ of habeas corpus is not at all applicable. The child was not, at the time the writ was sued out, restrained of her liberty in the Home of the Friendless, nor, upon the facts appearing, anywhere else. She had left that home in care of her adopted parents more than seven years before the issuing of the writ. All the facts in respect to her being in the Home of the Friendless and her being taken therefrom by adoption, were well and fully made known to the petitioner more than six years before suing out her writ. There was no excuse or justification for making oath that on the 10th of April, 1883, “the child was restrained of her liberty in the Home of the Friendless,” for it was neither true in fact nor in law; and it definitely appears that it had been known to the petitioner not to be true for more than six years. In the meantime no step had been taken either by the petitioner, while she bore the name of her former husband, nor after her marriage with her present husband, for a period of nearly or quite six years after she was informed of what had taken place, to ascertain where the child was, nor who had adopted her, nor how she was taken care of. The child is now nearly ten years of age. She was taken by her foster parents when she was less than two years old. In their house she has been reared, naturally 2-egarding them as her only parents, and probably loved by them as their own child until she had reached a period of life when it would be cruelty both to her and them to break up their relations. They, upon the facts now appearing, have the lawful custody of her, as already shown. The writ of habeas corpus was not designed for any purpose but to relieve persons illegally detained or imprisoned from unlawful custody. More than seven years had elapsed since the Home of the Friendless parted with the custody of the child, and that fact being well known to the petitioner it was an abuse of the right to obtain the writ, to cause it to be issued against the Home of the Friendless. It might with equal propriety have been sued out and issued against Mrs. Burpo, the nurse, in whose hands the child had been left, and who had been constrained, by the neglect of the mother to make any provision for it, to place it under the charity of the ladies of this society for its own care and protection. When it appeared that the allegations of the petitioner, in respect to the custody of the child were untrue, and had beeu so for many years, the court should have dismissed the writ. The writ of habeas corpus is not designed as a mode of obtaining evidence with a view to ascertain where children, who have been under the lawful care of charitable institutions and have been placed in other homes,- can be found after the lapse of many years. It is an abuse of the writ when it is used, as in this case, with knowledge that the custody of the child is not now, and has not been in the possession of the institution for many years. It is apparent that the sole object of the petitioner was to ascertain facts which, it is claimed, are within the records of the institution, and which records it is insisted the petitioner has by statute a lawful right to inspect. If that be so, the law provides another and an adequate remedy, quite different from the harassment of charitable institutions by the process of habeas corpus, under such circumstances as this case discloses.

The order should be reversed, with costs, and the writ dimissed.

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

Order reversed, with costs and writ dismissed.


author: Per Curiam :

text:
    FRANCIS B. BREWER, Respondent, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant.

      Company chartered by congress — right of congress to alter the terms of the charter to the disadvantage of the company —13 Statutes at Lwrge, 489; 13 id., 356; 14 id., 393 — Receipts — are subject to explanation.

    Two acts of congress, passed in 1863'and 1864, constituting together the charter of the Union Pacific Railroad Company, contained a grant of public lands and other subsidies, and provided for the appointment of five directors by the president of the United States, and that, while absent from home attending to their duties as directors, they should be paid their actual traveling expenses and such reasonable compensation for their time actually employed as the board of directors might determine. The latter act provided that congress might at anytime alter, amend or repeal it. An act, passed in 1866, provided “that whenever in any grant oí land or other subsidies made, or hereafter to be made, to railroads or other corporations, the United States has reserved the right, or shall reserve it, to appoint directors * * * of said company or companies, all the costs, charges and pay of said directors * * * shall be paid by the respective companies.” It then provided that the directors, etc., should receive for their services ten dollars per day for each day actually and necessarily employed, and ten cents per mile for each and every mile actually and necessarily traveled in the discharge of the duties of their office.

      Held, that the act of 1866 applied to the Union Pacific railroad.
    That congress had power to pass the act of 1866, even though it altered, to the disadvantage of the company, the provisions for compensating the government directors contained in the original acts.

      Sinking Fund Oases (99 U. S., 700) followed.
    The plaintiff, who was a government director in the years 1874,1875, 1876 and 1877, presented during these years bills to the company for his services and traveling expenses, charging for his services ten dollars a day, and for his traveling expenses at the rate of six dollars a' day, and the railroad fares actually paid by him. These bills were allowed and the amounts thereof paid to the plaintiff, who gave receipts “ in full ” thereon.
    In this action brought by him to recover the additional amount for traveling expenses, to which he was entitled under the act of 1866:

      Held, that he was not barred by the receipts so given from maintaining it.
    Appeal from a judgment in favor of the plaintiff entered on the report of a referee.

      A. H Holmes and John F. Dillon, for the appellant.

      B. F. Watson, for the respondent.
   Per Curiam :

On the decision of this case by him, the learned referee, William Gr. Choate, Esq., delivered the following opinion: “ This is an action to recover the sum of $1,456.40, alleged to be due to the plaintiff from the defendant for his services and traveling expenses while acting as a government director of the defendant corporation in the years 1874, 1875, 1876 and 1877.

The act of congress of July 1, 1862 (chap. 120), entitled “An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, etc.” (12 Stat. at Large, 489), and the act of July, 1864 (chap. 216), entitled “An act to amend an act entitled ‘An act to aid in the construction, etc.’ ” (13 Stat. at Large, 356), together constituted the charter of the Union Pacific Railroad Company, and are admitted to have been accepted by, and to be in all resjiects binding upon, the defendant. The first of these acts contained a grant of public lands and other subsidies to the railroad corporation created by it, and provided also for the appointment by the president of the United States of two directors to act in conjunction with other directors to be elected by the corporation.

The second of said acts increased the number of directors to be appointed by the president of the United States to five, and further provided that the government directors, while absent from home attending to their duties as directors, should be paid their actiral traveling expenses and be allowed and paid such reasonable compensation for their time actually employed, as the board of directors may decide. (Sec. 13.) It also provided that “ congress may at any time alter, amend or repeal this act.”

By an act of congress passed July 27, 1866 (chap. 278), entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the States of Missouri and Arkansas to the Pacific coast ” (14 Stat. at Large, 292), it was provided in section 21, page 299, that “ whenever in any grant of land or other subsidies, made or hereafter to be made, to railroads or other corporations, the United States has reserved the right, or shall reserve it, to appoint directors, engineers, commissioners or other agents to examine said roads, or act in conjunction with other officers of said company or companies, all the costs, charges and pay of said directors, engineers, commissioners or agents shall be paid by the respective companies. Said directors, engineers, commissioners or agents shall be paid for said services the sum of ten dollars' per day for each and every day actually and necessarily employed, and ten cents per mile for each' and every mile actually and necessarily traveled in discharging the duties required of them, which per diem and mileage shall be in full compensation for said services.”

Section 21 of the act of 1866, was re-enacted in Revised Statutes, section 5259.

Under the act of 1864 the defendant paid the government directors ten dollars a day for their services, and audited and paid their bills for traveling expenses at the rate of six dollars a day and their railroad fares actually paid. Settlements were made on this basis in 1874, 1875, 1876 and 1877, with the plaintiff, who made out his bills and had them audited and paid by the defendant, and who gave receipts thereon in full.” The amount of his mileage, at the rate of ten cents a mile, as provided for in the act of 1866, exceeds by the amount claimed in this suit the amount so paid to the plaintiff in those years as his bills were settled, and the question is whether he is entitled to this difference.

The first point raised by the defendant is that the twenty-first section of the act of 1866 does not apply to the Union Pacific Railroad Company, but to certain other companies to which congress had theretofore granted land and subsidies. But it is evident that the language of that section, even if applicable to some other companies, applies with certainly equal, if not greater propriety and force to the Union Pacific Railroad Company. Indeed no other corporation is pointed out as to which the government had before the passage of the law reserved the right to appoint directors to act in conjunction with the other directors of the company. • I think it admits of no doubt whatever that the Union Pacific Railroad Company was one of the corporations to which section 21 of the act of 1866 was intended to apply.

It is then objected that congress had no constitutional authority to make this provision applicable to the. Union Pacific Railroad Company, because the acts of 1862 and 1864 constituted a contract between the United States and the corporation under which it was agreed that the company should pay only the actual axd necessary traveling expenses, together with a per diem compensation to be fixed by the company; that the right to alter and amend the act does not include the right to alter and amend it as provided in the twenty-first section of the act of 1866, or to increase or vary to the prejudice of the company the burden in the acts of 1862 and 1864, assumed by the company with relation to the pay of the government dhectors. The question of the power of congress to legislate by way of alteration or amendment of the charter of this company, was considered at great length by the Supreme Court of the United States in the Svnlcing Fund Oases (99 U. S., 700). I think the exercise of legislative power now in question is fairly within the limits of the reserved power of amendment as declared and applied in that case. The changes made are the substitution of a per diem of ten dollars in lieu of a reasonable sum to be fixed by the corporation itself for the service of the directors, and ten cents a mile for the distance actually traveled in lieu of actual traveling expenses, which included the cost of transportation and of living while on duty. This is within the authority of. that case “ a reasonable regulation of the administration of the affairs of the corporation and promotive of the interests of the public and the corporators.” It is, therefore, under the authority of that case within the legislative power of congress. It cannot be said that the compensation and mileage, as established by the latter act, are not reasonable in amount, or that the legislation is not designed to promote the better administration of the affairs of the corporation. The original arrangement was certainly open to the criticism that the government directors were to some extent dependent upon the favor of the corporation for the determination of the amount of their compensation and the auditing of their accounts for traveling expenses.

The act of 1866 makes them more independent of the corporation, and, therefore, more free and unbiased in the exercise of their functions as government directors. Any discussion of the power of congress to pass the act is, in view of the decision above referred to, unnecessary, however open to question before that decision this exercise of the power to legislate or to ’ amend the charter may have been.

The plaintiff is not barred, of this action by having receipted “in full” for his'traveling.expenses in the vouchers signed by him. Such receipts can always be explained, and they have been shown in this case to have been given under a misapprehension of his rights. They were not releases, nor given in settlement or compromise of any controverted claims, and the payment of a part of the amount clearly due does not discharge the obligation to pay the residue. The plaintiff is entitled to judgment, with costs.”

This, decision covers and, as we think, after careful examination of the case and full consideration of the points presented by the learned counsel for the appellant, correctly disposes of all the questions presented in this case. The referee presents succinctly and clearly the reasons for his decision, and as our examination constrains us to admit their correctness, we deem it quite unnecessary to go over the ground again. We therefore adopt his opinion as our own, and dispose of the case by simply announcing that in our judgment congress possessed the power to enact the provisions of the act of July 27, 1876, which fixed and limited the compensation to be paid to the government directors for services and expenses in discharging the duties required of them; that there was no contract contained in the original acts called the charter of the railroad company which was violated by such an enactment; that if there was any such contract, the reservation of the power to alter, amend or repeal the act, fully authorized the change made by the act of 1876; that the latter act was intended to, and by its terms does apply to the government directors of the Union Pacific Railroad Company; and that the form in which the accounts which have been paid were presented by the plaintiff for his compensation, and the receipts given by him were not such as can operate to preclude the recovery in this case. The sum of indebtedness was fixed by statute, and the payments made were only a portion of that sum, and the receipts given only operate to extinguish such indebtedness 2)ro tanto. The plaintiff was entitled to the balance remaining unpaid, and to interest thereon from the time he properly presented his claim for such balance and demanded its payment. This, is what the learned referee has allowed him.

The result is that the judgment must be affirmed.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment affirmed.


author: Brady, J.: Davis, P. J.:

text:
       FRANCIS BRUECHER, Appellant, v. THE VILLAGE OF PORT CHESTER, Respondent.

      Void assessment — payment of, by the owner of land under protest —when he may recover bade the amount so paid without first homing the assessment vacated.

    The plaintiff alleged in the complaint herein that, prior .to February 27, 1875, he was ihe owner of a lot of land within the defendant’s corporate limits; that during the years 1874 and 1875 it levied an assessment upon the said lot; that a warrant having been issued for the collection of the assessment, and the defendant threatening to sell, and being about to sell the lot for the payment of the said assessment, the plaintiff, on February twenty-seventh, paid the same, with interest and other expenses incident thereto, under compulsion, he being then under a contract to convey the same free from all incumbrances, and being unable so to do while his title thereto was clouded and incumbered by the apparent lien of the said assessment; that the payment was made and received under his protest; that the assessment was utterly void and of no effect and that all his rights should be and remain reserved to him, and he in no way waived, foregone or pretermitted by such payment. It then alleged that the said assessment had been subsequently declared to be utterly void in an action brought to restrain the defendant from selling other lots owned by other persons which were covered by the same assessment. He prayed for a judgment for the amount so paid, with interest from the day it was paid.

      Held, that a demurrer interposed to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, should be overruled. (Davis, P. J., dissenting.)
    The right of one who has paid the amount of a void assessment under compul sion to recover the same without first having the assessment vacated or set aside considered, and the cases relating thereto, collated by Brady, J.
    Appeal from a j udgment, entered on an order made at Special Term sustaining the defendant’s demurrer to the plaintiff’s complaint.
    The complaint alleged, among other things, that the defendant had imposed an assessment upon a lot owned by the plaintiff, and lying within its corporate limits; that the proceedings resulting in the assessment were “ prosecuted under color of, but in violation of, said statutes and in disregard of their provisions, to wit, among other things, in this, that the commissioners of estimate and assessment appointed under the said acts so known as the charter of said village as aforesaid, to apportion and assess the expenses of grading and regulating said proposed avenues upon the adjacent premises, did not take the oath required by said statute to be taken, nor did said commissioners, after making their estimates and assessments, publish a notice of the time and place when and where interested parties could be heard in manner and form as required by said charter and statutes, whereby and by means of such omission the report of said commissioners and the confirmation thereof, and the said assessment upon said premises were illegal and wholly void in law.
    And the plaintiff says, that on the 27th day of February, in the year 1875, the warrant having been issued for the collection of the said assessment upon said premises so as aforesaid belonging to the plaintiff, and the interest and other expenses incidental thereto, amounting in all to the sum of $489.30, and the said defendant threatening to sell and being about to sell said premises for the payment of said assessment, and -the plaintiff having before that time sold said premises, and being under contract to convey the same free from all incumbrances, was unable to do so while the same was so clouded and incumbered by said charge and assessment, and apparent lien, and while the same remained so, a cloud upon said premises, was compelled, in order to complete the conveyance of said premises, to and did pay unto the treasurer of said village, and into the treasury thereof, the said sum of $489.30, under protest, nevertheless, and the sum was received by said treasurer and paid into said treasury, as so paid under protest, to wit: that the said assessment was utterly void and of no effect, and that all the rights of the plaintiff should be and remain reserved to him, and in no way waived, foregone or pretermitted by such payment.”

      I. T. Williams, for the appellant.

      Damid B. Ogden, for the respondent.

       Decided, May term, 1883.

   Brady, J.:

This action was brought to recover a sum of money paid to the defendant in discharge of an assessment which had been imposed upon the plaintiff’s land. The allegations of the complaint, briefly stated, are that the defendant is an incorporated village; that the plaintiff was prior to the 27th of February, 1875, the owner of a lot of land within the defendant’s corporate limits; that during the years of 1874 and 1875 it levied an assessment upon the land mentioned; that the plaintiff, on the 27th of February, 1875, a warrant having been issued for the collection of the assessment and the defendant threatening to sell and being about to sell the premises mentioned for the payment of the assessment, paid the same, with interest and other expenses incident thereto, and which he was compelled to do, being under contract to pay the same so as to remove an apparent cloud or incumbrance upon the premises; that the payment was made under protest, and was so received by the treasurer of the defendant, the protest asserting that the assessment was utterly void and of no effect, and that all the rights of the plaintiff should he and remained reserved to him and in no way waived, foregone or pretermitted by such payment; that the assessment was utterly void and had been so declared subsequent to the payment made by the plaintiff, in an action in this court, brought to restrain the defendant from selling land owned by persons covered by the same assessment which affected the plaintiff’s property.

The defendant demurred upon the ground that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action. And the demurrer, was sustained upon the proposition that there was no averment in the complaint that as to the plaintiff’s property the assessment had ever been adjudged to be illegal or void, and upon the further proposition that the declaration of its invalidity or illegality, made at the instance and on hehalf of other parties, was not sufficient to sustain this action ; and upon the proposition, also, that no facts were set forth showing a want of jurisdiction in imposing the assessment, and that the propriety of such an act could not be reviewed in a collateral proceeding.

The learned justice in the court below is in error in the statement that no facts were alleged showing a want of júrisdiction, for the reason, it is averred, that the commissioners of estimate and assessment, appointed under the acts known as the charter of Port Chester, did not take the oath required by the statute to be taken before making their estimates and assessments, and which was distinctly declared by the Court of Appeals to have been an indispensable preliminary; the effect of which was to make the assessment absolutely void. The plaintiff, however, is met at the very threshold of his case with two rules -which may be regarded as imposing. One is, as said-by Folger, J., in Peyser v. The Mayor (70 N. Y., 502), that to warrant an action to recover back money paid by coercion of law upon a judgment or tax levied, or assessment laid, it must appear that the judgment or proceedings were prima facie regular so as not themselves to furnish evidence of their own invalidity; and it must also appear that the rights and positions of the parties have been changed since the payment was made, as by a reversal for error or setting aside for irregularity or illegality. And the other is that if upon the face of the proceedings it appears that the assessment is void, it does not create a cloud upon the title of the landownei- and his rights are not so affected by it that he has a cause of action for its removal.

This rule is recognized in the same case, in which it is also» said that to maintain an action to recover back money collected in satisfaction of an erroneous judgment, the payment must appear to-be involuntary; which is tantamount to saying that it must be compulsory from coercion in fact or by law. (See, also, case of Marsh v. City of Brooklyn, 59 N. Y., 280, and Stuart v. Palmer, 74 id., 183.)

In the latter case, which was an action brought against the defendant, as collector of taxes of the town of New Lots, to vacate an assessment upon the lands of the plaintiff, as a cloud upon the title, and to restrain him from collecting the same, it was held that the acts of the legislature under consideration, and by which the tax was imposed, were unconstitutional and void, and hence that no assessment laid under them could be a cloud upon the title of the land, and that the plaintiff was not entitled, therefore, to any relief. In the case of Merritt against the defendants herein and heretofore referred to, in reference to the assessment under consideration (see report of case in 71 N. Y., 309), and which was an action brought against the defendants to restrain them from selling the real estate of the plaintiff for an unpaid assessment for regulating and grading an.avenue in the village, it was declared that the commissioners of estimate and assessment, whose duty it was to apportion the cost of the improvement, were not authorized to act until they had taken the oath prescribed by law; that their appointment could only be consummated, and they fully inducted into office, by that ceremony; that It was a condition precedent to the right to perform the functions of their office, and the oath was one of the safeguards provided by the statute for the protection of the property holder, and that the legislature by prescribing the oath made the form the essence of the act. The appeal was from a judgment in favor of the defendants, but which was reversed and a new trial granted. And by that case it was therefore declared that an action to restrain the sale of property under a void assessment could be maintained. "Whilst, in the case of Stuart v. Palmer (sujpra), the contrary view is expressed, as it is understood.

That case was an action of a similar character and for a similar object, but it met with entirely different treatment. There seems to be a distinction running through the adjudications which relate to this subject, and which is perhaps exposed by the cases cited,, which is, that if the illegality of the assessment is apparent upon its face, then the person whose land is affected by it is remediless, because it bears notice to all persons of its own invalidity; but if it be apparently regular upon its face, and its illegality is to be established by evidence beyond the record, then an action may be maintained at least to restrain the collection of it by persons who assume to have the power to adopt such a proceeding. It may be that this is the difference between the two cases; in the case of Stuart v. Palmer (supra), the illegality being apparent upon the face of the assessment, and in the case of Merritt against the defendant, its illegality being demonstrated by proof aliunde the assessment itself.

These features of the law were considered in the case of Horn v. The Town of New Lots (reported in 83 N. Y., 100), in which it was said that where there are judgments to recover back money paid or taken on an illegal assessment, there must be a vacating of the assessment by judicial power. In illustration of this doctrine, the cases of Peyser v. The Mayor (supra); In re Lima (77 N. Y., 170), and Wilkes v. The Mayor (79 id., 621), are referred to. It is then said, “ but they apply only in cases of assessment where the invalidity is, so to speak, latent, and does not appear upon proof, which must be made to sustain the proceedings under them.” See bearing upon this subject the cases of Newman v. The Supervisors of Livingston County (45 N. Y., 677); Buffalo and State Line Railroad Company v. Supervisors Erie County (48 N. Y., 97); Bank of the Commonwealth v. The Mayor (43 N. Y., 184),. and Wilkes v. The Mayor (79 N. Y., 621).

It has already been stated that where payment is made in satisfaction of an assessment which is void, it must be shown to have been involuntary, i. e., compulsory from coercion either in fact or by law. In this case there was a threat, as alleged by the plaintiffs, on the part of the defendant to sell, and they were about to sell the premises when the payment was made. And this would seem to be sufficient, although the question is not free from doubt (Peyser v. The Mayor), to justify the recovery of the money paid. It is quite clear from the decision in Stuart v. Palmer, that unless the illegality of the tax was dependent upon evidence other than the assessment itself, with its incidents, that the action against the defendant could not be maintained. Hence the conclusion must be that the assessment imposed upon the plaintiff’s property was regular upon its face; -and that he was threatened with the execution of process for its collection by which his property would be sold, and in order to protect himself from such contingency, there being a superinducing cause to that effect, namely, the existence of a contract of sale on his part by which he was obliged to transfer an unincumbered title, he paid it.

It must be confessed that there is a seeming confusion in the cases relating to this subject, growing out of rules which do not appear to be founded in wisdom. There does not seem to be any good reason why, when an assessment is imposed upon the land of an owner by an asserted right exercised by authority apparently invested with the power of imposing it, that he should not be relieved, on application to a court of justice, from the apparent cloud upon his title, which must subject him to inconvenience, especially when a sale of the property affected is contemplated. It does not suggest a proper administration of justice to say to him : The tax is apparently void upon its face and therefore you are under no obligation to pay it. If the sale of your property takes place under it you may recover it back, but until it is forced in that way you are not aggrieved;” when in point of fact he is aggrieved by the refusal of his contemplated purchaser to take the title, with an impending law suit, unless provision is made for the payment of the tax, and( by making which provision the owner is aggrieved. It would seem to be but fair in the administration of the law, when a title is affected by an assessment which is .illegal, either upon its face or arising from some circumstance upon proof other than the record of the assessment itself, that the courts should on application in a proper proceeding for the purpose,investigate and determine that the assessment has no validity, and thus relieve him from any embarrassments that may result from its continued presence. Some reasons have been given why such a rule should not be adopted, but I have not discovered any that have been satisfactory; and my recent examination of the authorities bearing upon this question has not assured me that any have been stated. However unsatisfactory my views may be upon this subject they are the result of examination and deliberation. This case may be taken for an example. The complaint, as we have seen, alleges that .there exists an assessment upon the plaintiffs property, which by the court of last resort has been declared to be absolutely void, and yet there seems to be a doubt about the right of the plaintiff to recover back his money, simply because he paid it upon the threat that his property was to be sold, and did not resort to some proceeding by which the assessment itself should be declared to be void, or did not permit his property to be sold. If he permitted it to be sold there would be no doubt about the right to maintain an action. That ceremony ought not to be demanded. It should be held to be sufficient to justify the payment, that a'threat is made by persons having the apparent authority to consummate it, that the property of the land owner was to be sold, leaving him to bring his action to recover it back; more particularly where it was paid under protest. It is true a protest has been declared to be of no importance save to show that there was not an assent to the proceedings. (Flower v. Lance, 59 N. Y., 603, 610.)

Under the facts stated by the complaint, and admitted by the demurrer, namely, that the assessment was void and had been so declared, and that the payment of it was made under a threat that the plaintiff’s property would be sold if it were not paid, it is thought that his right of action was complete and that the judgment upon the demurrer was erroneous and should be reversed.

Daniels, J., concurred.

Davis, P. J.:

I think the question in this case was properly disposed of ,at Special Term and that the judgment should be affirmed. I must therefore dissent.

Judgment on demurrer reversed, with costs.