author: Lawrence J.

text:
    In the Matter of Janet Kingsland as Adm’x of Henry Foster Topping.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Executors and administrators—Administrator de bonis non.
    An administrator de bonis non takes the estate where his predecessor left it, and, in most respects, his administration is a mere continuation of that commenced by the latter.
    2. Same—Sale of lands for debts.
    Under sub. 5, § 2759, Code Civil Procedure, such an administrator applying for leave to sell the decedent’s lands in order to pay his debts, must show that the former administrator exercised the same diligence in converting the personal property into money as would have been required of the petitioner had she been appointed in the first instance.
    (Van Brunt, P. J., dissents,)
    Appeal by the owner of real estate the grantee of the sole heir at law and former administrator of the decedent from a decree of the surrogate directing its sale for the payment of debts.

      Daniel Finn, for app’lt; R. H. Underhill and Warren W. Foster, for resp’ts.
   Lawrence J.

This is an appeal by George W. Murray, the grantee of Henry Foster Topping, Jr., the son of Henry Foster Topping, Sr., deceased,' the said Henry Foster Topping, Jr., being the sole heir at law and former administrator of the decedent. A decree was entered, directing the sale of real estate belonging to the decedent, for the payment of his debts. The father died Hovember 15, 1885, and the son was appointed as his administrator by the surrogate of the county of Hew York, on the 23d of Hovember, 1885. On the 6th of January, 1886, the said Henry Foster Topping, Jr., gave to Daniel Finn a mortgage on the property sought to be sold in this proceeding, and on the 10th of February, 1886, the said Henry Foster Topping, Jr., sold and conveyed the premises in question to the appellant George W. Murray, subject to the mortgage aforesaid. On the 6th of April, 1886, Henry Foster Topping, Jr., as administrator of his father’s estate, filed an inventory thereof, in which the personal estate was appraised by the appraisers at $2,489. The letters of administration granted to the son were revoked on the 17th day of January,, 1888, and on May 21st, 1888, Janet Kingsland, the petitioner in this preceding, was appointed administratrix de bonis non, in his, place.

The son as administrator never rendered any account of his-proceedings in regard to his father’s estate.

This proceeding was commenced in November, 1888, by the present administratrix for the purpose of having the property conveyed to the appellant as above stated sold to pay the debts of the decedent. On the 7th day of January, 1889, the citation and petition herein were served on the appellant, the petition having been filed on November 21st, 1888. The appellant in his answer to the petition among other things prayed, that an order might be made requiring the said Henry Foster Topping, Jr., “ to render an account of his proceedings as administrator, and that the amount which should be found in his hands as such administrator should be directed to applied, to’ the payment of the debts and liabilities of the said deceased, and that meanwhile until such account should be judicially settled, and it has been determined by the court herein, as to the value and amount of the personal property of the deceased, which came into the hands of said Topping as administrator, these proceedings shall be adjourned and stayed.”

Topping in his testimony before the referee stated that he was willing to make an account of his proceedings as administrator of of his father’s estate. “ I would render that account now if the present administratrix requested me to do so, and I have been willing to render such an account ever since I came back to Hew York in 1888, in January. Heither the administratrix, nor her lawyer, have asked me to render any account as administrator since I came back to Hew York in 1888.” At the time of his decease, Topping, Sr., left certain personal property consisting of hay, grain, farming utensils, and stock, which was not included in the inventory filed by his administrator, Topping, Jr.

That inventory stated that two hundred shares in the Adgate Rotary Loom Company of the par value of $20,000 were worth only a nominal sum, but that the personal property amounted in-value to the sum of $2,469. The evidence before the referee tended to show that the stock and personal property upon the farm, omitted the administrator’s inventory was of the value of $2,547. The property subsequently realized, after deducting the expenses of the sale at auction, the sum of $646.

On the 27th of February, 1889, an order of reference was made to E. D. Hatch, Esq:, to take proof, and to determine as to the necessity of applying the real property of the decedent to the payment of his debts, and the validity thereof, and directing that all persons having claims against said decedent present and prove them before the referee. On the 2d of August, 1889, the referee made his report, in which he found that valid and subsisting debts against the decedent as set forth in his findings had been established to the amount of $1,545, with interest from the 10th of March, 1889, and that none of said debts are secured by any judgment dr mortgage. Second, that the present administratrix has proceeded with reasonable diligence' in converting the personal property into money, and applying it to the debts of the decedent, and that it is insufficient for'the payment of the same. Third, that it is necessary to apply the real property of the decedent to the payment of his debts, and that the petitioner is entitled to a decree for the disposition of such real property mentioned in her petition according to the prayer thereof.

Hpon the coming in of this report the surrogate was not satisfied upon the evidence submitted that due "diligence had been exhibited by the administratrix, and the matter was referred back to the referee for proof as to the petitioner’s ability to collect the .assets of the said Henry Foster Topping, Sr., deceased, and as to •such efforts that she may have already made for that purpose. Thereupon the referee made a second report in which he found as conclusions of law that “ The administratrix by her counsel and agent has made diligent effort to ascertain the amount of assets belonging to the- estate, in order' to prepare the intermediate account filed by her.”

Second. That “The administratrix has used reasonable diligence to collect the assets received by said administrator Topping and not applied to the payment of debts.”

Third. “ From the foregoing facts an attempt by the administratrix to collect from her predecessor Henry Foster Topping, Jr., any of the assets for which he is liable would be futile.”

Thereupon an order was made by the surrogate, overruling the •exceptions which had been taken to said report and confirming the same, directing an appraisement of the real estate and ordering that on the coming in of -the report of the appraisers a decree issue as prayed for in the petition, etc.; and on the 26th of November, 1890, a final decree was made that the property in question be sold for the purpose of paying the debts alleged to be due from the estate to Bichard C. Brown and Janet Kingsland the petitioner.

From that decree and from the orders of reference herein, and from the order of September 16, 1890, confirming the second report of the referee, George W. Murray, the grantee, appeals.

The land mentioned in the petition descended to Henry Topping, Jr., as the heir at law of his father, subject only to be defeated or charged with the debts of the intestate in the manner provided by the statute. Covell v. Weston, 20 John., 414; Pierce v. Alsop, 3 Barb. Ch., 184; Wilson v. Wilson, 13 Barb., 252 ; Fonda v. Chapman, 23 Hun, 119.

The provisions of the Code of Civil Procedure relating to the sale of a decedents real property for the payment of debts and funeral expenses are contained in title 5 of chap. 18 of the Code of Civil Procedure.

Section 2759 provides as follows: “ A decree, directing the -disposition of real property, or o. an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate.

(1.) That the proceedings have been in conformity to this title.

(2) That the debts, for the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses, and are justly due.

(3) That they are not secured by a judgment or mortgage, or ■expressly charged by the will upon the decedent’s real property or interest in real property; or, if a debt is secured or charged upon a portion of the real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted.

(4) That the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge or to execute the power, and that "the creditor has effectually relinquished the same.

(5) That all the personal property of the decedent which could have been applied to payment of the decedent's debts and funeral expenses has been so applied; or, that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of 'those debts and funeral expenses, and that it is insufficient for the payment of the same as established by the decree.”

It is contended by the appellant that under the fifth subdivision of this section, it is necessary for the petitioner to establish that the executor or administrator has proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of the debts and funeral expenses, and that it, is insufficient for the payment of the same as established by the decree. It is further claimed that upon the evidence before the referee it is perfectly apparent that if the first administrator had proceeded with reasonable diligence, much more than sufficient personal property to pay all the debts and funeral expenses of the decedent would have been discovered. This claim proceeds upon' the assumption that the present administratrix is bound to show that her predecessor exercised the diligence which, would have been required of her if she had been appointed administratrix in the first instance. In this contention we think that the appellant is right

In Slocum v. English, 62 N. Y., 496, Church, C. J., in speaking of an application of this character, says : “ The statute commences to run from the date of the original granting of letters of administration, and not (in case of a change of administrator), from the time letters were granted to the administrator who made the sale. An administrator de bonis non, takes the estate where his predecessor left it; and in respect to the time of limitation to sell real estate, as well as in most other respects, his administration is a mere continuation of that commenced by the latter. Otherwise the rights of heirs, devisees, purchasers and creditors would be uncertain and indefinite.

Upon examining the evidence in the case, we are of the opinion, that the personal property of the decedent was much more than sufficient to pay the debts. As before stated the evidence tends most strongly to show that the personal property upon the Orange county farm was worth the sum of $2,547. The fact that, a portion of the property upon the Orange county farm was sold at auction in March, 1886, some months after the death of the decedent, for the net sum of $640 does not in our opinion overthrow' the force of the testimony of Whitaker as to the value of the whole. Furthermore, the price at which goods are sold at public auction is not conclusive.evidence as to their value. It is slight, or cogent according to the circumstances, and the sum obtained for a part of the property at an auction sale affords very little evidence of the value of the whole property.

The evidence also shows' that the administrator sold the Adgate Rotary Loom Company stock for $1,500. These-two items when added to the personal property appraised by the appraisers at $2,489, were more than sufficient to have paid the debts of the decedent as developed by the evidence. If, therefore, the present administratrix is bound to show under the 5th subdivision of § 2759 of the Code of Civil Procedure, that all the personal property which could have been applied to the decedent’s debts and funeral expenses, has been so applied, or that her predecessor has acted with reasonable diligence in applying the same, and that the personal property is insufficient for the payment of the debts, as established by the decree, we think that she must fail in this proceeding. No attack so far as the evidence discloses, is made upon the bona fides of the sale to the appellant, and in such a case it appears to us the proper procedure would have been, after the first administrator had again come into the jurisdiction of the court, to require him to make an account of his proceedings, as he expressed a willingness to do, and to stay this proceeding until the coming in of that account. Estate of Rosenfield, 10 Civ. Pro. Rep., 204, per Rollins, Surrogate. See, also, Moser v. Cochrane, 107 N. Y., 88; 11 N. Y. State Rep., 200. The learned surrogate apparently based his decisión upon the ground, that even where it was not shown that all the personal property has been applied to the payment of the debts of the decedent, but that reasonable diligence to effect the conversion of the assets into money appears, it is within the discretion of the surrogate to order a sale of the real property.

This was so under the Revised Statutes as amended by the Laws of 1837, p. 531, §§ 40, 41 and 42, as was decided in the case of Moore v. Moore, 14 Barb., 27.

But the language of § 2759 of the Code of Civil Procedure as we understand it, does not vest such a discretion in the surrogate, particularly where it appears as in this case upon the evidence that the administrator has not proceeded with reasonable diligence and that the personal estate, instead of being insufficient, was quite sufficient for the payment of the debts. See Moser v. Cochrane, 107 N. Y., 39; 11 N. Y. State Rep., 200. The surrogate is to be satisfied from the evidence, that the facts exist which are stated in the various subdivisions of § 2759, and his decision upon that evidence is of course subject to review.

It should also be observed that the amount paid to Mr. Gruber for counsel fees appears to have been $400 more than the amount claimed by him. Mr. Gruber states that the services rendered by him were worth about $550. The amount allowed to him was $950. There is no voucher which shows the payment for these services, which will enable the court, under § 2734 of the Code of Civil Procedure, to ascertain whether the charge was a proper one, and we think that at least $400 of it ought not to be allowed in disposing of this proceeding. There are various exceptions in the case as to rulings upon evidence, in regard to requests to find and refusals to find, which, in the view we have taken of it, it will be unnecessary for us to examine. For the reasons already stated we think that the decree of the surrogate should be reversed, and the application of the petitioner for the sale of the decedent’s property should be denied and her petition dismissed, with costs.

Daniels, J., concurs; Van Brunt, P. J., dissents.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Julius Newwitter, App’lt, v. Maurice Mansell, et al., Resp’ts.

      (Supreme Court, General Term, First Department

      Filed May 15, 1891.)

    Attachment—Affidavit.
    In support of an attachment an affidavit, made upon information and belief, stated that the defendants were about to dispose of their property to defraud their creditors; that notes made by them had gone to protest; that they had transferred some of their goods to other parties to liquidate accounts; were about to make an assignment, and that one of the firm resided in Boston, Mass. Held, insufficient.
    Appeal from an order vacating an attachment

      Cantor & Van Schaick, for app’lt; Nathan Bijur, for resp’ts.
   Daniels, J.

In support of the right to the attachment it was stated that the defendants, who were partners, were about to dispose of their property in this state, to defraud their creditors, and that the defendant Blume resided in Boston, in Massachusetts, The facts assigned by way of proof that the defendants were about to dispose of their property to defraud their creditors, were that a note made by them for $300 had gone to protest; that they were sued by a Boston firm on another note for $750; that they had transferred some of their goods to different parties to liquidate their accounts, and were about to make an assignment of all their property to defraud their creditors. These facts as they have been mentioned in the affidavit were not inconsistent with an entire absence of all fraudulent design on the part of the defendants. For they did not prove that the goods transferred exceeded the one-third, which they could make by way of preferences, or that either note was not for a fair and honest debt, or any fact, or circumstance, indicating that a fraudulent assignment was intended to be made. And a mere general charge without some foundation for it by way of circumstances, will not prove the existence of a fraudulent intention.

These statements too, infirm as they clearly are, were based upon no knowledge of the person making them. For it appears by his affidavit that they were made on information derived from Nathan J. Newwitter, who, if he had actual knowledge of them,, should have been the person to make the affidavit. What ho did was to make a further affidavit containing a general affirmation that what the other affiant had declared, upon the information, was true of his own personal knowledge, derived from conversations with Mansell, one of the defendants, and with the clerks and emplojms of the defendants, whose names he did not know; what part of the information came from Mansell, and what part from the clerks and employes, the affidavit does not state.

It is entirely consistent with it that all except the protesting of the $300 note, or the suit on the $750 note came from them, which would not support an attachment against the property of the defendant If they, or either of them, had made statements disclosing the alleged fraudulent intention, those statements should have been set forth, so that it could be seen that the inference-of fraud was reasonably sustained. That was neither done nor attempted, but, in place of it, the general conclusion which had been drawn from the conversations was all that was set out, and that, furnished no legal ground for the attachment.

It has been objected that these defects in the affidavits did not require the attachment to be wholly vacated for the reason that it was stated that the defendant Blume was not a resident of this-state. But the fact of his residence in Boston was no otherwise proved than by the conversations mentioned in the affidavit of Nathan J. Newwitter. Julius Newwitter stated it on information received from Nathan, and Nathan affirmed it from conversations, with Mansell and the clerks and employes of the defendants Whether it was Mansell, or one or more of the clerks or eim ployees, who stated that Blume resided in Boston, was not disclosed. And the failure to show that the information came from a responsible source, for whiA Blume could be made liable to an attachment, left the fact of his residence out of the state unproved.

Upon this, as well as the other ground, the attachment was deprived of support, and the order vacating it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.


text:
    The National Broadway Bank in the City of New York, Resp’t, v. Stephen B. Barker, Def’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Attachment—Affidavit on motion to vacate.
    An affidavit by the attorney of an attaching creditor upon information and belief that a levy under the attachment had been made, based upon information received from the sheriff, is insufficient to prove the existence of a lien on a motion to vacate a prior attachment. The non-production of an affidavit as to the fact by the sheriff is not excused by his refusal to make one, as it could be procured under § 885 of the Code.
    Appeal by the Mattson Rubber Co., from an order denying a motion to vacate the attachment in this action.

      P. Q. Eckerson, for app’lt; William F. MacRae, for resp’t.
   Daniels, J.

The motion to vacate the plaintiff’s attachment, was made on behalf of the Mattson Rubber Company, in whose favor a later attachment had been issued against the property of the same defendant. To entitle the Mattson Rubber Co. to succeed in its motion, it was a fundamental fact to be established in its favor, that it had acquired a lien upon, or interest in, the debtor’s property after its seizure under the plaintiff’s attachment, previously issued in this action. Code Civ. Pro., § 682. To prove that this lien had been acquired, the attorney for the Rubber Co., stated in his affidavit that:

“ That deponent is informed, and verily believes that the same is true, by James Young, a deputy sheriff of the city and county of New York, that both of said attachments were issued to the sheriff of the city and county of New York; that the same came into his hands as such deputy sheriff for the purpose of executthe same; that on the said 27th day of October, 1890, he attached the property of the defendant, Stephen T. Barker, consisting of waterproof goods and fabrics, sewing machines, etc., under the said attachment issued in favor of the above plaintiff at the defendant’s places of business, No. 27 Maiden Land and No. 8 College Place, New York city; and that subsequent thereto, and on the 27th day of October, 1890, he attached the same property under the said attachment issued by the said Mattson Rubber Company against the property of Stephen T. Barker, and that he now holds said property under and by virtue of both of said attachments ; that deponent has requested said deputy sheriff, James Young, and the sheriff of the city and county of New York to make an affidavit or certificate of these facts, but that they decline to so do, stating as the reason that it might be show-in a'preference in favor of one party against another.”

And no other proof was produced to establish that fact. This statement of the attorney was insufficient evidence of its existence. For it was wholly a matter of information. It was, in fact, the unsworn, and unauthenticated assertion of the deputy, without anything to corroborate or maintain it And mere information has been so«often held to be no proof of the fact related in it, that authority is not now required to support that conclusion.

An attempt has been made to excuse the want of evidence by the statement that the deputy declined to make an affidavit proving the fact that he had seized the same property under the attachment of the Eubber company. But that forms no legal excuse for failing to obtain the affidavit of the deputy. For the law has provided a means by which it eould have been regularly procured. Code Civil Procedure, § 885. The provision is .very simple and can be so readily complied with, that the failure to obtain the affidavit in that manner, presents no sound reason for accepting and acting on information not obtained from the party to be affected by it, or from some person identified in interest with him. The essential fact entitling the Eubber company to move to vacate the plaintiff’s attachment was unproved, and its motion was rightly denied.

The order appealed from should be affirmed, with ten dollars costs, and the disbursements on the appeal.

Van Brunt, P. J., and Lawrence, J., concur.


author: Per Curiam.

text:
    The People ex rel. The Oak Hill Cemetery Association, Pl'ff, v. Luther A. Pratt et al., Assessors, Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Cemeteries—Taxes—Exemption.
    Chapter 28Q, Laws 1852, requiring the consent of hoards of supervisors to .the proposed use of land as a cemetery, has no application to the county of Monroe.
    2. Same.
    The word “rural” as used in the acts relating to rural cemeteries was not intended to limit the holding and use of cemetery grants to lands outside of city limits.
    3. Same—Lands in cities.
    Such lands cannot be held for cemetery purposes unless by consent of the common council of the city.
    4. Same—Revocation op ordinance.
    Relator was incorporated under Laws 1847, chap. 133, for cemetery purposes. The common council passed an ordinance amending a previous ordinance prohibiting the burial of the dead in the city except in certain cemeteries named, so as to include the relator, but before any action was taken to prepare the lands for such purposes the last ordinance was revoked and the original one re-enacted. Held, that the action of the common council in amending the former ordinance did not amount to a contract so as to preclude it from afterwards receding from its action; that relator’s lands could not be held for cemetery purposes and were not exempt from taxation under § 10 of the act of 1847.
    Appeal from a judgment of the special term held in Monroe county and entered in the clerk’s office on the 6th day of March, 1891, in pursuance of the decision of the court, after a reference of certain matters, that the lands of the relator were not exempt from taxation, but were liable to assessment for general city taxes for the year 1890, and affirming the report of the referee that the valuation of $75,000 made by the assessors was greater than the actual value of the land and unequal, when measured by valuations of other lands, and reducing the same to the sum of $52,000.

      Martin W. Cooke, for pl’fi; George F. Danforth and Henry J. Sullivan, for def’ts.
   Per Curiam.

The relator was incorporated on the 16th day of March, 1889, under chapter 133 of the Laws of 1847, entitled ‘‘An act authorizing the incorporation of rural cemetery associations.” Such was the allegation of the petition and the same was admitted by the answer filed by the assessors. By § 10 of that act, it is provided, “ that the cemetery lands and property of any association formed pursuant to this act, shall be exempt from all public taxes, rates and assessments.” It is under this provision of law that the certiorari was issued at the instance of the relator, under a claim that the property which it owns consisting of forty-five and one-half acres of land, situate in the sixteenth ward of the city of Rochester, is exempt from taxation.

The learned justice at special term seems to have been of the opinion that the acquisition and proposed use by the relator, of its lands for cemetery purposes, was not legal, because there had not been obtained for such purpose the consent of the board of supervisors of Monroe county, under chapter 280 of the Laws of 1852.

We cannot assent to that view of the case. The act of 1852 in respect to the necessity of obtaining the consents of boards of supervisors applied to the counties of Westchester, Kings and Queens, named in the statute, and to no other counties in the state. This act was amended by chap. 389 of the Laws of 1889 by including the county of Rockland among those where the consent of the board of supervisors must be obtained as a condition precedent to the holding and use of lands for cemetery purposes. We feel constrained to hold, under the facts alleged in the petition and admitted in the answer, that, for the purposes of this proceeding, the plaintiff was a duly organized corporation under the act of 1847, unaffected by the above named provisions of the act of 1852, and that it lawfully proposed to set apart its lands for cemetery purposes. Nor do we think that the word “ rural ” that appears in the title and body of these and many other acts of the legislature has any significance or bearing upon the merits of the case. That word, it is true, commonly means the country as separated from the city; but in the instances named it was not intended by the word to limit the holding and use of cemetery grants to lands outside of city limits. The word was manifestly used as descriptive of the picturesque character of the place of burial rather than as something beyond city boundaries; for there may be and often is rus in urbe. But there is another ground stated by the learned justice upon which the judgment appealed from may be affirmed, and that is that the lands of the relator, whatever may have been the intention of the parties in acquiring title thereto, could not be held or used for cemetery purposes without the consent of the common council of the city of Rochester. By chap. 14 of the Laws of 1880, § 40, sub. 18, there is given to the common council of that city power to make, modify and repeal such ordinances and regulations as it may deem desirable within the city, and, among other matters, it may regulate the burial of the dead. It cannot be denied that the common council had power, if it had seen fit to exercise it, to permit the burial of the dead on the relator’s lands; but such consent has not been shown in this case.

It is true that three days after the incorporation of the relator the common council passed an ordinance amending a previous ordinance which forbade the burial of the dead in Rochester, except in certain cemeteries named in the ordinance, so as to include in such exceptions the land in question. In pursuance of that ordinance, the assessors left this property of the relator off from the assessment rolls of 1889, under § 10 of the act of 1847, above referred to. But before any steps were taken to turn these lands actually into a cemetery, or to prepare them for cemetery purposes, this amendment of the ordinance was revoked, and by an ordinance enacted on the 2d day of May, 1889, the original ordinance, not including the relator’s lands in its exceptions, was substantially re-enacted, and from that time no right remained in the relator to use these lands for cemetery purposes. The action of the common council did not in and by the amendment of the old ordinance amount to a contract su.cli as would enable the court to say that it had not the power afterwards to recede from its action. Hence, the ordinance of 19th day of March, 1889, by which the relator’s lands were permitted to be used for cemetery purposes, went for naught. No question, in our judgment, of the impairment of a contract arises in this matter. People ex rel. Cunningham, v. Roper, 35 N. Y.. 629 ; People ex rel. v. The Board of Assessors of Brooklyn, 84 id., 610. For this reason we think that the action of the assessors in listing the relator’s property and assessing the same was legal, and that consequently the appeal of the relator from the judgment must be deemed to be unavailing.

In respect to the appeal taken by the defendants from that portion of the judgment which reduced the valuation of the relator’s lands from $75,000 to $52,000, it may be sufficient to say, that while the evidence was very inconclusive, resting largely upon the opinions of the witnesses, we cannot say that the finding of the learned referee in that regard, which has had the approval of the special term, was not well supported by testimony, and consequently we also affirm that part of the judgment appealed from.

The judgment should be affirmed, without costs of this appeal to either party.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    William H. Lockwood, App’lt, v. Benjamin F. Lockwood, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Justice’s coubt—Evidence.
    Where there is evidence, other than that which is inadmissible, to fully sustain the judgment of a justice’s court, the county court should refuse to reverse on account of the admission of the improper evidence.

      Appeal from a judgment of the Monroe county court, entered on the 31st day of December, 1890, affirming a judgment of a justice of the peace.

      C. A. Shuart, for app’lt; John E. Robson, for resp’t.
   Macomber, J.

The action was brought to recover the possession of a sorrel horse. The defense was, that four years prior to the beginning of the action the plaintiff gave this horse to the defendant, who took possession of it, and retained such possession with the exception of about three months, when he was loaned by the defendant to the plaintiff for a special purpose. The case presented to the justice of the peace was clearly one of fact. Evidence was adduced, consisting of the testimony of the defendant, directly to the act of the gift, the taking of the gift and the retention thereunder, and the testimony of others, including the plaintiff’s wife, as to the declarations of the plaintiff that he had given the defendant, who is his son, not only an education but a horse in addition thereto. This evidence, including the admissions sworn to by the plaintiff’s wife, is denied by the plaintiff. But the justice of the peace, yielding to a preponderance of the evidence, held, as a matter of fact, with the defendant, and the county court concurs with him.

It follows, therefore, that the judgment should be affirmed in this court, unless.some error prejudicial to the plaintiff took place upon the trial.

The defendant was asked the question: “ Is the sorrel horse, referred to in this case, your property ?”

This was objected to, and the objection overruled, and the answer was “ yes.”

It is argued that within the authority of Nicolay v. Unger, 80 H. Y., 54, this evidence was incompetent. But where there is evidence, other than that which is inadmissible, fully to support the claim made by the defendant, as in this case, the county court should, as it in fact did, properly refuse to reverse the judgment on account of the improper evidence under § 3063 of the Code of Civ. Pro., relating to appeals from justice’s courts, where the appellate court is required to render judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits. Earl v. Lefler, 10 RT. Y. State Rep., 807. The evidence objected to may be eliminated from the case, and still there would be left sufficient to support the judgment appealed from.

It follows, therefore, that the judgment of the county court should be affirmed, with costs.

Dwight, P. J., concurs.


author: Dwight, P. J.

text:
    Michael Filon et al., Pl’ffs, v. The Miller Brewing Co., Impl’d, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Corporations—Ultra vires—Cannot become surety on lease to anOTHER.
    At the request of one Harris, the secretary of defendant executed with him, in the name of defendant, a lease to said Harris. No general authority in the secretary to do so was shown, but it was shown that he obtained the individual consents of a majority of the trustees to his execution of a guaranty of a lease to Harris. Held, that this conferred no authority on him to sign the lease; that neither the individual members of the board nor the board of trustees itself could confer such authority, as it had not the authority itself, as the contract was ultra vires, and' that the fact that Harris agreed to buy his beer of the company if it would guarantee his lease, did not bring the contract within the scope of the corporate powers.
    Motion by the plaintiffs for a new trial on a case and exceptions ordered heard in the first instance at general term, after verdict for the defendants directed by the court, at the Monroe circuit, March, 1890.

      C. C. Davy, for the motion; D. Hays, opposed.
   Dwight, P. J.

The action was on a lease alleged to have been executed by the defendant corporation as lessee, with one John F. Harris, who was impleaded as defendant, but suffered default. The plaintiffs were the owners of the property described in the lease, which was a restaurant and summer hotel on Irondequoit Bay. The defendant, the Miller Brewing Company, was a corporation organized under the general manufacturing companies act, for the purpose of the manufacture and sale of beer and malt. The defendant Harris applied to the plaintiffs to rent the premises above described ; they refused to lease to him without security, and he procured the secretary of the defendant first to sign a guaranty, and afterwards, upon the plaintiffs’ refusal to accept that security, to execute a lease with him, in the name of the corporation. The signing being without the corporate seal, no presumption of authority in the secretary existed in favor of the plaintiffs. Peoples' Bank v. St. Anthony's Church, 109 N. Y., 512; 16 N.Y. State Rep., 856; and no evidence was given tending to show any general authority in that officer to execute any contract in behalf of the defendant; on the contrary it was shown that the duties of the secretary as prescribed by the by laws excluded any such authority. There was an attempt to show special authority in this case, by evidence to the effect that the secretary saw several of the trustees of the company (a majority, including himself) and obtained their individual consent to his executing a guaranty of Harris’ lease. But this evidently constituted no authority to execute the lease itself, even if it had been sufficient to authorize him to sign the guaranty. But it was not sufficient for the latter purpose.

■ In the first place such an authority could be created only by the action of the board of trustees, and such action could be taken only by the board in its collective capacity, when convened as such, and not by the assent of individual members, Bank v. St. Anthony's Church, supra, 521-522, and in the second place the board of trustees could not have conferred such authority upon its secretary, because it had not the authority in itself as a board. It was ultra vires. The contract as executed by the secretary, was that of an accommodation surety, for Harris’ rent. It was not within the scope of the business for which the defendant was organized, and the plaintiffs were chargeable with knowledge of the limitation of the defendant’s powers. Nat. Park Bank v. G. A. M. W. & S. Co., 116 N. Y., 281; 26 N. Y. State Rep., 675; Jemison v. Cit. Sav. Bk., 122 N. Y., 135; 33 N. Y. State Rep., 335. The fact, which the testimony of Harris tended to show, that he agreed with the secretary to buy his beer of the company if it would guarantee his lease, was not material. Such a consideration did not bring the contract within the scope of the corporate powers. The defendant was not to derive any benefit from the lease; it was to have no use or occupation of the premises demised, and the fact that it was to have in the tenant a customer for its beer, gave to it no more interest in the lease than if it was to receive a money consideration for becoming surety for his rent. Whether an act is within corporate powers depends upon the character of the act itself, and not upon the consideration for which it is performed.

There were abundant reasons upon all or either of the grounds refered to why this action could not be maintained. The direction of a verdict for the defendant was, therefore, properly given and the motion for a new trial must be denied.

Motion fora new trial denied, with costs, and judgment ordered for the defendant on the verdict.

Macomber, J. concurs.


text:
    Mathias Schenck et al., App’lts, v. Arthur B. Erwin. Francis Erwin, Resp’t.

      (Supreme Court, General Term. Fifth Department,

      Filed June 2, 1891.)

    1. Supplementary proceedings—Appeal.
    An order made by a county judge vacating a third party order made by him, which was based on an execution issued out of a county, is not a discretionary one, especially where it is made on the ground of want of jurisdiction, and is appealable.
    2. Same—Third party order.
    To give the court jurisdiction to make a third party order the affidavit must show that the execution on which the preceding is based has been issued to the sheriff of the county where the judgment debtor resides when the proceeding is commenced.
    3. Same.
    The judgment debtor removed from the county after return of execution and before application was made for a third party order, the affidavit for which showed that the execution was issued to the sheriff of the county where the judgment debtor resided when it was issued. Meld, that the proof was that the execution was not issued to the county where the debtor resided when the application for the order was made, and the affidavit, therefore, did not confer jurisdiction to grant the order.
    Appeal by the plaintiffs, judgment creditors, from an order of the county judge of Steuben county vacating an order previously made by him for the examination of Francis Irwin, a third person, in proceedings supplementary to execution on a judgment against the defendant.

      L. W. Wellington, for app’lts ; Spencer & Mills, for resp’t.
   Dwight, P. J.

The judgment was docketed as a judgment of the county court of Steuben county, and an execution was issued out of that court to the sheriff of that county, where the judgment debtor th cn resided, and was returned unsatisfied. Thereafter the judgment debtor removed to Chemung county, and while he was residing there, proceedings supplementary to the above execution were instituted before the county judge of Steuben county against the respondent, Francis Irwin, who was a resident of that county, as a person having property of the judgment debtor. He appeared pursuant to the order in those proceedings, and was examined without objection on his part, but subsequently made a motion before the same county judge to vacate the order for his examination. That motion was granted, and from the order of the county judge of Steuben county so vacating his former order, this appeal was taken.

The objection that the order was not appealable cannot be maintained. The statute, Code Civ. Pro., § 2433, subd. 2, makes express provision for an appeal from “ an order made in the course of the proceedings,” “where (as in this case) the execution was issued out of a county court.” This order affected the substantial right of the judgment creditors to collect their debt out of property of the judgment debtor in the hands of a third person ; and it was not an order, in the discretion of the county judge, especially if it was made, as we may suppose it was, upon the ground that he had no jurisdiction of the proceeding. But upon that ground we think the order appealed from was properly made, and must be affirmed.

The affidavit on which the first order was made was sufficient on its face to give jurisdiction to the county judge except in one particular. It did not show that- the execution described therein had been delivered to the sheriff of the county where the judgment debtor resided at the time the affidavit was made and the proceeding commenced. This was required by the provisions of § 2458 of the Code. That section, so far as applicable to this case, is as follows: “In order to entitle a judgment creditor to maintain either of the special proceedings authorized by this article [and the proceeding in question was one of them], the execution must have been issued * * * either (1) to the sheriff of the county where the judgment debtor has at the time of the commencement of the special proceeding a place for the regular transaction of business in person; or, (2) if the judgment debtor is then a resident of the state, to the sheriff of the county where he resides.” The affidavit showed that the execution had been issued to the sheriff of the county where the judgment debtor did reside when the execution was issued; but that clearly does not meet the requirement of the provision above quoted. The word “ then,” in the second subdivision of the section, evidently refers to the “ time of the commencement of the special proceeding ” mentioned in the first subdivision; and the use of the present tense of the verbs in the phrases “has * * * a place of business,” “ is then a resident,” and “ where he resides,” plainly shows that the reference throughout is to the present residence, etc., of the judgment debtor at the time the application for the order is made. The effect, therefore, of the provision as applicable to this case, is that in order to give to the county judge jurisdiction to make the order for the examination of the third person-the affidavit upon which it is made must show that the execution upon which the proceeding was based had been issued to the sheriff of the county where the judgment debtor then, presently, resided. The fact does not appear by the affidavit upon which the order was granted, and the contrary appeared by the affidavit upon which that order was vacated.

This view of the case is in accordance with the reasoning, if not necessarily involved in the decision, of this court in the case of Merrill v. Allen, 13 N. Y. State Rep., 20. But we wish to put our conclusion of the want of jurisdiction in the county judge in this case, more distinctly upon the ground that the proofs showed that the execution which was alleged as the basis of the proceeding was not issued to the county where the judgment debtor resided when the proceeding was commenced.

The objection was not waived by the attendance of the third person before the referee, and his submission to the examination. It was necessary to the validity of his order that the county judge should have jurisdiction of the subject matter, and that jurisdiction could not be given by consent.

The order appealed from should be affirmed, but without costs to either party against the other

Macomber, J., concurs.


text:
    Frederica Preuster, Resp’t, v. The Supreme Council of the Order of Chosen Friends, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Benefit societies—Forfeiture—Waiver.
    The application of one R. for membership in the defendant organization contained an untrue statement as to his age, which under the terms of the certificate forfeited his rights to all benefits and privileges. Charges of fraud were afterwards lodged against him with a view to liis expulsion, based on such untrue statement, and evidence was taken at his birth place in Germany as to the date of his birth. Pending the taking and return of such evidence two assessments were levied, which were paid by R. Held, that no waiver of the forfeiture could be inferred from the acts of the secretary in levying and collecting these assessments, as neither he nor the council could prejudge the case pending investigation, or withhold notice or refuse payment by him while he yet remained in good standing.
    Appeal from an order of special term (Erie, September, 1890), granting the plaintiff’s motion for a new trial, on case and exceptions, after a verdict for the defendant, directed by the court at the circuit

      John E. Pound, for app’lt; Frank Brundage, for resp’t.
   Dwight, P. J.

The action was to recover on a beneficiary certificate of membership in the defendant association, issued to one C. C. Reim, and payable in case of his death to -the plaintiff, his sister. The defense was founded upon a material misrepresentation in respect to his age, contained in the application of the insured, and the plaintiff sought to avoid the defense on the ground of waiver.

The statement of the insured in his application made May 23, 1882, was that he was sixty years old, and that he was born on the 4th day of February, 1822; the undisputed evidence showed that he was more than sixty-one years of age; the plaintiff herself testifying that 'he was born on the 4th day of February,. 1821. The misrepresentation was material, because, as appears by the table of rates contained in the by-laws of the defendant and printed on the face of the certificate itself, no person was eligible to a beneficiary membership who was past the age of sixty-one years; and by the express terms of his application it worked a forfeiture of all his rights under the certificate. The language of the application in that respect was as follows : “I do hereby further consent and agree that any untrue or fraudulent statement made above ” and the representation as to his age and date of birth, preceded that stipulation * * * “or my suspension or expulsion from * * * the order, shall forfeit my rights to all benefits and privileges therein.”

Here by the express terms of the contract was an absolute forfeiture of all rights otherwise secured by it, which was fatal to the plaintiff’s cause of action unless the defense was in some manner avoided. It was upon the ground of such forfeiture that the learned judge at the circuit directed a verdict for the defendant; it was upon the ground that the jury should have been permitted to pass upon the question whether the forfeiture was waived ; that the same judge, at special term, granted the motion for a new trial. We think the direction of a verdict was correct and that the motion for a new trial was improperly granted.

Without stopping to consider several questions raised by the argument, as, whether the term forfeiture is properly applied in the case of a contract which was void from the beginning; whether the officers of a subordinate and local council of the defendant have any power to waive such a forfeiture, or any other; and whether such a forfeiture can be waived even by the general officers of an association such as the defendant; without discussing any of these questions we find a complete answer to the theory of waiver in the fact that the officer charged with the act of waiver had no knowledge of the facts out of which the forfeiture arose.

The narrative of the case in this connection is as follows: The member had suffered an attack of paralysis and had made application for relief for total disability, which was within the provisions of the certificate, when a charge was lodged against him, with the local council, with a view to his expulsion, to the effect-that he had procured his certificate by a fraudulent representation as to his age. The charge was entertained and investigated,, and means were taken to obtain evidence on the subject from his-birth place in Germany. While this investigation was pending and while the evidence from Germany was expected, two assessments were made in the ordinary course of the business of the defendant Of these assessments the insured, in this case, was notified, in the usual manner, by the secretary of the local council, and payments of the same were received when offered. There was at this time nothing to charge the secretary or the council with knowledge of the facts which gave rise to the forfeiture. It was known that the charge of fraud had been made against the insured, but the secretary or the council had no knowledge that the charge was true. They were bound to presume it not true until it was proved. The had no right to refuse payment of an assessment by a member so long as he continued a member in .good standing, and the standing of the member in this case was unaffected by charges not yet proved. The case is not one. in which information which puts the recipient on enquiry has the effect of knowledge of the facts.

This council and its officers were, in truth, put upon enquiry, and the enquiry was being prosecuted officially; but, in the meantime, there were assessments to be made and collected; the standing of the insured was yet unaffected, and he was as much liable and as much entitled to be notified of 'and to pay his assessments as any other member. Neither the secretary nor the council could prejudge his case pending its investigation, and neither had the right to withhold notice or to refuse payment of his assessments. For these reasons there was no waiver of the forfeiture in question which was to be inferred from the acts of the secretary in levying and collecting these assessments. Barteau v. Phoenix Mut. Life Ins. Co., 67 N. Y., 595; Devins v. Mech. & T. Ins, Co., 83 id., 173; Robertson v. Met. Life Ins. Co., 88 id., 541.

We discover no error on the trial which was to the prejudice of the. plaintiff. The copy of the entry in the baptismal register of -St. Peter’s church at Langensalza, Saxony, was inadmissible as evidence in this case, and was immaterial as evidence of what was •before the committee of the council on their investigation; but it was not to the prejudice of the plaintiff, because her own and other undisputed testimony established the fact of the false statement in the application of the insured.

We find in the case no error which vitiates the verdict rendered by direction of the court That direction seems to have been correctly given.

The order granting a new trial must be reversed.

Order appealed from reversed and judgment ordered for the defendant on the verdict.

Macomber, J., concurs.


author: Merwin, J.

text:
    William A. Sweet, App’lt, v. The City of Syracuse et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Constitutional law—Title of act—Laws 1889, chap. 291.
    The title of chap. 291, Laws 1889, is sufficient to express the subject of the act, viz., to supply the city of Syracuse with water, and henee is not unconstitutional as in violation of § 16 of art. 3 of the constitution.
    2. Same—Water bonds.
    The provisions in said act for the issuing of bonds are not invalid under- § 11 of art. 8 of the constitution by reason of the term of the bonds exceeding twenty years and the absence of any sinking fund, as said constitutional provision relates only to cities of over 100,000 inhabitants.
    3. Same—Laws 1890, chap. 314.
    The waters of Skaneateles lake and its outlet having been appropriated by the canal hoard in 1843 to the use of the public as a reservoir and feeder of the Erie canal, by a resolution in form absolute and permanent, such appropriation must he held to he permanent and to include all the waters of the lake, and the amendment of § 18 of the act of 1889 by chap. 314, Laws 1890, which authorized the taking by the city of Syracuse of' water “ not required for the canal,” was an appropriation of public property to a local purpose, and therefore invalid by reason of the absence of the" requisite two-thirds assent of the legislature under § 9 of art. 1 of the-constitution.
    Appeal from a judgment entered in Onondaga county on the 10th of December, 1890, upon the decision of the court at Onondaga special term, November, 1890, dismissing the complaint.
    Action by the plaintiff, as a resident and taxpayer of the city of Syracuse, to have declared unconstitutional, inoperative and void chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse,” and also chapter 314 of the Laws of 1890, which amended § 18 of the act of 1889; and to restrain the defendants from doing' any act in furtherance or consummation of the scheme or plan of those acts.
    By the act of 1889 the mayor of the city of Syracuse was directed to appoint a board of water commissioners to be known as the “ Syracuse Water Board.” This board was authorized and directed “for and in the name of the city of Syracuse to acquire, construct, maintain, control and operate a system of water-works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” It might also purchase and acquire by deed or otherwise all lands, waters, or other property, “ necessary for the acquisition, construction, maintenance, control and operation of said water-works,” and might acquire the rights and property of any existing corporation or company organized to suppty the city of Syracuse and its inhabitants with water, and maintain and operate the same, the title of all property acquired to vest in the-city. The power to exercise the right of eminent domain was-conferred, and the manner of its exercise provided for.
    Section 18 of the act .was as follows:
    “ § 18. The Syracuse water board, by and with the consent of the canal board, is hereby authorized and empowered to appropriate so much of the waters of Skaneateles lake as may he necessary to supply the city of Syracuse and its inhabitants with water; upon the express condition, however, that the city of Syracuse shall, when so required by the canal board, furnish from such source or sources, and in such manner as the canal board may designate, as much water for the use of the Erie canal as shall be taken by the city from Skaneateles lake, and the power granted in this act shall be deemed to include authority and power to provide such compensating water supply for the Erie canal, and to do and perform all those acts and things which shall be needful to acquire for said city and its inhabitants the waters of Skaneateles lake.”
    Provision was made for the issuing by the city, whenever the board considered it necessary, of bonds to an amount not exceeding in the aggregate the sum of $3,000,000, all payable on July 1, 1920, interest semi-annually, the proceeds of these bonds to be used by the board “ solely for the acquisition and construction of the system of waterworks herein provided for, and for the purpose of acquiring property rights, privileges and franchises therefor, or to be used in connection therewith, and for providing a. compensating water supply for the Erie canal, as specified in § 18 of this act.” No sinking fund was provided for.
    The consent of the canal board, called for by § 18, was not given, and thereupon the act of 1890 was passed, which amended § 18 so as to read as follows:
    “ § 18. The Syracuse water board is hereby authorized, under the restrictions and conditions hereinafter mentioned, to take and conduct water not required for the Erie canal, from Skaneateleslake to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water stall be so talcen, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its water-shed; the fact of such necessary reconstruction having been made shall be certified by the state engineer and surveyor and superintendent of public works, and filed in the office of superintendent of public works. All the work authorized by this section, including the placing- and maintenance of said pipe, shall be executed under the direction, supervision and control of the superintendent of public works, and in accordance with the plans and specifications therefor, to be prepared or approved by the state engineer and surveyor. The dam, and all structures connected therewith, together with the regulation at all times of the flow of water from said lake into the aforesaid pipe, shall be and continue in the exclusive charge and control of the superintendent of public works, and shall be maintained and kept in repair by or under the direction of said superintendent at the cost and expense of the city of Syracuse. This section shall be construed to vest in the state engineer and surveyor the power to prescribe the plan of construction and location of the gate-house or other means for delivering the water of said lake into said pipe; and if for any reason the flow of water into said pipe shall prevent the state from having a sufficient quantity for all the uses of the Erie canal, the said superintendent of public works is authorized and required to stop the flow of water into said pipe, in whole or in part, so far as may be necessary in his judgment to secure such sufficient quantity; it being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters are to be subject always to the superior claims of the state thereto. Before any water shall be taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water. The city of Syracuse shall at all times protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all .acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles lake in accordance with the provisions of this section.”
    Neither of the acts received the assent of two-thirds of the members elected to each branch of the legislature.
    It was claimed by the plaintiff in his complaint and at the trial that the Skaneateles lake and outlet were a reservoir and feeder of Brie canal and a part thereof and that the acts above referred to, in assuming to grant to the city of Syracuse the waters of said lake and outlet, were in violation of the provision of the constitution which forbade the sale, lease or disposition of the Erie canal; that said acts were also in violation of that provision of the constitution that forbade any appropriation of the public monies or property for local or private purposes without the assent of two-thirds of the members elected to each branch of the legislature; that the provision for issuing bonds was unconstitutional as the term of payment exceeded twenty years and no sinking fund was provided; that the title of the acts was insufficient on the ground that the subject was not adequately expressed. As to all of these propositions, the court ruled against the plaintiff and an exception was duly taken.
    The plaintiff also claimed, and there was evidence on the subject, that the plan of obtaining water from Skaneateles lake was inadequate, improvident and wasteful.

      Charles H. Peck and George F. Comstock, for app’lt; C. L. Stone, W. A. Beach and W. P. Gannon, for resp’ts.
   Merwin, J.

The plaintiff in this case seeks a remedy under the provisions of § 1925 of the Code of Civ. Pro., as supplemented by chap. 531 of the Laws of 1881 and chap. 673 of the Laws of 1887. Under these statutes, it was held by the court of appeals in Talcott v. City of Buffalo, 26 N. E. Rep., 263; 34 N. Y. State Rep., 871, that the remedy was confined to cases where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud, is charged, it being said that the terms “waste ” and “ injury ” used in the statute “comprehended only illegal, wrongful, or dishonest official acts, and were not intended to subject the official action of boards, officers, or municipal bodies acting within the limits of their jurisdiction and discretion but which some taxpayer might conceive to be unwise, improvident, or based on errors of judgment, to the supervision of the judicial tribunal”

Upon this basis, the questions in this case are:

1. Whether the act of 1889 is unconstitutional by reason of its title, as in violation of § 16, art 3 of the constitution, which provides that no local or private bill shall embrace more than one subject, and that shall be expressed in the title.

2. Whether the provisions in the act of 1889 for the issuing of bonds are invalid, under § 11 of art 8 of the constitution of this state, by reason of the term of the bonds exceeding twenty years and the absence of any provision for a sinking fund.

3. Whether § 18 of the act,, as amended in 1890, is in violation of § 6 of art 7 of the constitution, which provides that the legislature shall not sell, lease or otherwise disjaose of the Erie canal, or is in violation of § 9 of art 1 of the constitution, which provides for the assent of two-thirds of each branch of the legislature to every bill appropriating the public moneys or property for local or private purposes.

1. The title of the act of 1889 is, “An act to establish and maintain a water department in and for the city of Syracuse.” The claim is that this does not adequately express the subject of the act, which is to supply the city of Syracuse with water.

In People exrel. City of Rochester v. Briggs, 50 N. Y., 554, it was held that the title, “An act to amend the several acts in relation to the city of Rochester," expressed a subject broad enough to embrace all the details of the charter and government of the city of Rochester. In Astor v. Arcade R. Co., 113 N. Y., 93, 110; 22 N. Y. State Rep., 1, it is said: “When the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. The title must be such, at least, as fairly to suggest or give a clue to the subject dealt with in the act, and unless it comes up to this standard it falls below the constitutional requirement” In Cooley on Cons. Lim., 172, it is said: “ The generality of a title is, therefore, no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary and proper connection. The legislature must determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it”

Within these rules, the title in question was sufficient A water department, as that expression is ordinarily understood to mean, could not be established and maintained without a supply of water. The obtaining of such supply would, therefore, be within the scope of the subject as expressed in the title.

2. Section 11 of article 8 of the constitution is as follows:

“ Sec. 11. Ho county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for state or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No such county or such city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation, shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or-revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. The amount hereafter to be raised by tax for county or city purposes, in any county containing a city of over, one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debts, shall not in the aggregate exceed in any one year two per centum of the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt."

The claim of the defendants is that the provision as to bonds issued to provide for the supply of water applies only to cities containing over one hundred thousand inhabitants. The claim of the plaintiff is that the provision is general and applies to all cities. It is conceded that the city of Syracuse has less than one hundred thousand inhabitants.

Section 11, as it now stands, was adopted in November, 1884. It was made up of § 11, as it existed prior to that date, adding thereto the provisions commencing with the words: “No county containing a city of over one hundred thousand inhabitants, or .any such city,” etc., to the end of the section. So that prior to 1884, no county, city, town or village could give any money or property, or loan its money or credit to or in aid of any individual or corporation, or incur any indebtedness, except for county, city, town or village purposes. An exception was made in favor of the poor, apparently upon the idea that the general inhibition of gifts of money or property to or in aid of any one would unless qualified include the poor. Under the section as it then stood, as applicable to all cities, there was unlimited power in the legislature to authorize them to incur indebteness, except only it must be for city purposes. The amendatory clauses of 1884 restricted this general legislative power by providing that no city of over one hundred thousand inhabitants should be allowed to incur indebtedness for any purpose beyond a certain limit Then came the provisions: “ This section shall not be construed to prevent the issuing of certificates,” in certain cases, “ nor shall this section be construed to prevent the issue of bonds to provide for the supply of water,” etc. These limitations of construction both had reference to some limitation of power, and the only limitation on the subject was that having reference only to the large cities. The power as to the smaller cities remained unlimited. There was no occasion to enlarge it. It is conceded that the furnishing of a water supply is for city purposes.

It would seem, therefore, that the provision as to water bonds had reference only to those large cities whose right to incur debts was limited. They were the only ones to be benefited by the reservation or privilege, and the burden is no more extensive than the benefit conferred. In fact, it is quite apparent that all the amendatory clauses had reference only to the described class of cities.

But it is said that there is no more reason for limiting the term and providing a sinking fund in case of bonds of large cities than of smaller ones. That may be so. And so it may be said with as much reason that smaller cities should be limited in the amount of their indebtedness to the same extent as larger ones. It is not done, however. And the same reason that would allow this to so remain would allow the power as to water bonds to be unlimited. The question for us is what is the fair construction of the section, having in view the circumstances of its adoption.

We, therefore, conclude that the limitation as to water bonds does not apply to the present case.

3. Does § 18 of the act as amended in 1890 appropriate the public property for local or private purposes? It is conceded that the law did not have the two-thirds assent required by the constitution, and it was a local act People v. O'Brien, 38 1ST. Y., 194. This is not disputed. Was there an appropriation of public property ?

The city, through its water board, was authorized to take and conduct from Skaneateles lake water not required for 'thp Brie canal through a pipe not exceeding thirty inches in diameter. Before doing this, however, the city must increase the storage capacity of the lake sufficient to store therein all the ordinary flow of its water-shed and must acquire or extinguish all water power rights upon the outlet of the lake to be affected by such storage. The work authorized by the section must be done under the direction and control of the superintendent of the public works and in accordance with plans and specifications prepared or approved by the state engineer, and the dam and all structures connected therewith and the regulation of the flow oE water from the lake into the pipe should continue in the exclusive charge and control of such superintendent and shall by or under his direction be maintained and kept in repair at the expense of the city. If for any reason the flow of water into the pipe should prevent the state from having a sufficient quantity for all the uses of the Brie canal, the superintendent was authorized and required to stop such flow in whole or in part, so far as might be necessary in his judgment to secure such sufficient quantity, “ it being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters are to be subject always to the superior claims of the state thereto.”

The board was given full power to do and perform all acts and' things necessary or proper to enable the city to acquire, store and obtain water from the lake in accordance with the provisions of the section.

In substance, the city was given the surplus waters as such sur-’ plus might be determined by the state officers, without reference to whether such surplus was greater or less than,the additional storage to be furnished at its expense.

The expression “superior claims,” used in the clause above quoted, had reference only to the claims of the state of water for the use of the canal, evidently contemplating that there was and would be a surplus which would be obtained by the city. The city was also given the right or privilege of using the lake as a means of storage of its additional waters, any right to or in which of any riparian owner upon the lake or outlet it was bound to extinguish.

Skaneateles lake, as the case shows, is a body of water about fifteen miles long, with a general width of about one mile, having a surface area of about thirteen square miles. It is located about seventeen miles from Syracuse, and is about 453 feet above the level of the Brie canal at the Jordan level It has a water shed, including the surface of the lake of 73-j: square miles, and discharges its water through an outlet, known as Skaneateles creek,, northerly into the Seneca river, distant between ten and eleven miles. The lake has been, for many years, navigated by steamboats and other craft, but there is no navigable communication between it and any other waters.

There is no direct evidence as to the ownership of the bed of the lake. It was conceded at the trial and is found that the patents issued by the state for the lands surrounding the lake designate by lot numbers the lands conveyed, and do not describe the same by metes and bounds, and that the original surveyor’s field notes of the lots show the shore fines of the lake as bounding fines thereof. Assuming, as we probably may, that the state was the original owner of the whole, its patents carried the title to low water mark, according to the rule laid down in Wheeler v. Spinola, 54 N. Y., 377. That would leave the state the owner of the bed below low water mark.

The state, from the first construction of the Erie canal, had used a portion of the waters of the lake to supply the canal Prior to 1843, a further supply was found to be necessary, and, therefore, on the 29th June, 1843, the canal board of the state, as they were authorized by law to do, adopted a resolution, “ That the waters of Skaneateles lake, and the outlet of the same, be and they are hereby appropriated to the use of the public for a reservoir and feeder to the Erie canal,” and the canal commissioners were directed to make the improvements necessary to carry the resolution into effect From the map of the appropriation it appears that at the foot of the lake lands were taken which included the dam and water rights at that point. ¡No question is made, as I understand the case, about the legality of the appropriation as made by the resolution of the canal board. The point is as to the extent or effect of such appropriation. From that time, the state maintained a dam at the foot of the lake, and now the flow of water from the lake at that point is regulated by a dam nine feet high, containing gates through which the water is permitted to flow into the outlet, and these gates, since 1843, have been under the management of an employe of the state.

About nine miles below the foot of the lake, at the village of Jordan, a dam has been constructed across the outlet by means of which a portion of the flow from the lake is discharged into the canal. An aqueduct constructed under the canal permits the flow of that part of the stream not used for canal purposes beneath the canal and on to the Seneca river through its natural channel. Upon the outlet and between the lake and the canal are situated numerous mills, deriving their power from the use of the waters of the outlet, and these are the powers referred to in the act of 1890. During the time in every year when the canals are closed, a volume of water has been permitted to flow through the gates of the dam at the foot of the lake for the use of mills along the, outlet, except for several periods in different years when the water was held back either for purposes of repair or to increase the storage in the lake. The quantity of water thus ordinarily permitted to flow during the closed season of navigation amounts, as the court below found, approximately to about fifty millions gallons per day. This water has never been utilized by the state for canal purposes. The carrying capacity of the thirty inch pipe authorized to be laid is found to be fifteen million gallons per day, and the drawing of that amount per day would be equivalent in one month to two inches in depth from the surface of the lake

These are the main facts upon the subject. The theory of the defendants is, that by the appropriation of 1843 the state only acquired the right to so much water as might be required for the uses of the canal; that the balance belongs to the riparian owners, and that, therefore, the statute in question did not give to the city any property of the state. The theory of the plaintiff is, that the appropriation in 1843 was a permanent one and passed the fee to the state, and the act, which gave the city an interest in it, appropriated to that extent public property to the use of the city.

The appropriation of 1843 was in form permanent ana absolute. In this respect it differs from the case of Silsby Mfg. Co. v. State, 104 N. Y., 562; 6 N. Y. State Rep., 463, where the state possessed only the rights of the Seneca Lock Navigation Company, and those were expressly limited to the use of only so much as was necessary for the purposes of navigation, and upon that ground a liability for waste was held to exist against the state.

There is no doubt that in fact this was a permanent appropriation, and in such a case, as said in Heacock & Berry v. State of New York, 105 N. Y., 248; 7 N. Y. State Rep., 353, under the Revised Statutes then in force, §§ 46, 48, part 1, chap. 9, title 9, 1 R. S., 4th ed., 484, it was provided that the state should- take a fee, and unless the land owner applied for compensation within one year his right should be deemed extinguished. See, also, Mark v. State,. 97 N. Y., 572.

•- In such a case, if the use for the purposes of a canal was abandoned the property would not revert Bexford -v. Knight, 11 N. Y., 308 ; Genesee Valley Canal B. B. Co. v. Slaight, 49 Hun, 37; 17 N. Y. State Bep., 241; Cooley on Cons. Lim. (6th ed.), 688.

If the statute authorized the entire ownership to be taken and the appropriation followed the statute, the fact that all might not be needed for the use of the canal would not reduce the extent of the right taken. In Sweet v. Buffalo, N. Y. & P. B. Co., 79 N. Y, 293, it was held that a fee may be taken, although the public use for which the land is to be taken is special and not of necessity permanent or perpetual and that when a statute authorises the taking of a fee it cannot be held invalid, or that an easement, only was acquired thereunder, on the ground that an easement only was required to accomplish the purpose in view.

It is also to be borne in mind that in 1843 there was a statute, part 1, chap. 9, title 9, of B. S., § 75, et seq., providing for the sale of surplus waters, thus indicating that the appropriations of that character were not simply of so much as was necessary for the uses of the canals.

It seems to me, therefore, that we must assume that the appropriation of 1843 was not simply of what was required for the Erie canal but was just as broad as the resolution of the canal board made it, “ the waters of Skaneateles lake, and the outlet of the same.” It would then follow that when the act of 1890 assumed to give to the city of Syracuse the right to take waters “not required for the canal,” it would if operative give to the city the benefit of a portion of the title of the state; in other words appropriate public property.

Under the appropriation as made by the canal board, the state was entitled to take and have delivered through the outlet to the point where the state dam at the foot of the outlet is erected, all the flow from Skaneateles lake. The state, at its dam at the foot of the outlet could either turn the water into the canal, or into the Seneca river, or under the law as it then stood sell the surplus. Suppose, as claimed by the defendants, that the riparian owners along the outlet had a right to use the water as it passed along; that would not give them any right to divert it and prevent its delivery at the foot of the outlet, and the city as their grantee would obtain no such right. No one but the state could give the right to divert In doing so, it would part with a right to property.

There is another feature of the case which is of some importance on this question. The state by its appropriation in 1843 and subsequent improvements became the possessor and owner of a complete reservoir. The act of 1890 gives to the city of Syracuse the right in perpetuity to use this reservoir for the purpose of storage of surplus waters for its benefit There is thus constituted a kind of dual ownership, which, to say the least, is an impairment of the previous complete ownership of the state. The impairment of rights is the taking of property. Ex parte Jennings, 6 Cow., 525.

■ I am not prepared to say that the act of 1890 can be construed to be within that provision of the constitution which says that the legislature “ shall not sell, lease or otherwise dispose of the Erie canal.” In the previous constitution the provision was that the legislature shall never sell, or dispose of, the said navigable communications or any part or section thereof.” It is true that by the statute in force in 1846 (1 E. S., pt 1, chap. 9, tit. 9, art 1, § 1), “ the navigable communication connecting the waters of lake Erie with those of the Hudson river, and all the side-cuts, feeders and other works belonging to the state connected therewith,” “ were known and designated by the name of the Erie canal.” This would include very likely the Skaneateles reservoir and feeder. Still the act of 1890 made the rights of the city of Syracuse subservient to the uses of the Erie canal. It aims to take surplus waters, which, though they may belong to the state, would hardly be considered a part of the Erie canal. True it is, too, that certain rights in the reservoir are conferred, but the paramount control for the benefit of the canal is retained. In the future management there might arise opportunity for friction and embarrassment in regard to conflicting claims or wants of the respective parties. Still there is some force in the suggestion that the inhibition upon a sale, lease or disposal of the canal, apparently as an entirety, does not reach the present casa

Be that as it may, I see no way to escape the conclusion that the act of 1890 assumes to appropriate public property to a local purpose, and is therefore invalid by reason of the absence of the requisite two-thirds assent of the legislature. Upon this ground the judgment should be modified by inserting a provision in effect declaring the invalidity of § 18 of the act of 1889, as amended by the act of 1890, and striking out the award of costs to the defendants. The appellant should have the costs of the appeal

Judgment accordingly.

Hardin, P. J., and Martin, J., concur.


author: Hardin, P. J.

text:
    John Dunn et al., App’lts, v. Frank G. Arnold et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    Partnership—Right to follow assets of a former firm.
    Pratt & Arnold, partners and solvent, were indebted to plaintiffs upon a note. Thereafter, with Arnold’s consent, Pratt sold out to Eaton. Pratt & Arnold agreed to pay all the liabilities of their firm. Eaton & Arnold continued the business until Arnold sold out to his father. Neither of the sales by Pratt nor by Arnold were fraudulent. The plaintiffs obtained judgment on their note and then sought to reach the assets of Pratt & Arnold. The referee dismissed the complaint as to Eaton and as to the father of Arnold. Held, correct.
    Appeal from a judgment entered upon the report of a referee in Onondaga county. Plaintiffs-are judgment creditors of Charles-A. Pratt and Frank G. Arnold, who constituted the firm of Pratt & Arnold, and made their promissory note on the 3d day of January, 1889, to the plaintiffs for an indebtedness then existing ; subsequently the plaintiffs recovered a judgment upon that indebtedness and issued an execution which was returned unsatisfied, and they bring this action to reach the assets of the partnership existing at the time the debt was contracted. ‘The referee held that the complaint should be dismissed on the merits as to defendants John D. Arnold and Carl S. Eaton, with one bill of costs against the plaintiffs. Plaintiffs appeal from the judgment entered on the referee’s report No other parties appeal.

      J. William Wilson, for app’lts; William E. Hobby, for resp’ts.
   Hardin, P. J.

The referee found “ That on or about the 12th day of January, 1889, it was agreed between said Pratt and Frank Gr. Arnold that said Pratt should sell an undivided one-half interest of all the merchandise of said firm to one Andrew J. Eaton for twenty-two hundred and fifty dollars ($2,250.)”

Thereafter negotiations were had between Pratt and Dr. Andrew J. Eaton with the knowledge, with the assent and concurrence of Frank Gr. Arnold, and that resulted in an agreement that for the price of $2,250, to be paid to Pratt, the said Andrew J. Eaton should become the purchaser of one-half of the firm goods and fixtures. It was understood that Andrew J. Eaton made the purchase for and in behalf of his son, Carl S. Eaton, to whom, immediately after acquiring an interest, he made the transfer, and the son entered into business with Frank Gr. Arnold, and he and Carl S. Eaton thus became the owners of the property.

Pratt and Frank Gr. Arnold agreed to pay all the liabilities of the firm of .Pratt & Arnold, and Frank Gr. Arnold was to raise outside of the business $1,500, to be used in paying the debts, which he subsequently did, applying the same to the payment of the debts of the firm of Pratt & Arnold. It is also found that Carl S. Eaton and Frank G. Arnold, having formed a copartnership for the purpose of carrying on a business, “ took possession of said merchandise and continued to carry on said business, selling from said stock of goods and adding to -the same in the regular course of business, until the 15th day of July, 1889, when said copartnership dissolved;" and on the 15th day of July, 1889, Frank Gr. Arnold assigned and transferred to his father, the defendant John D. Arnold, all his right, interest and property in and to the assets of the firm of Arnold & Eaton.

The referee also found as matter of fact, viz., “ that neither the-said sale by said Pratt nor the said sale by Frank G. Arnold was-fraudulent or made with the intent to hinder or delay or defraud creditors, nor was either of them made upon any trust"

A careful perusal of the evidence found in the case has led us to the conclusion that the referee was warranted in his findings of fact. It appears that Arnold & Eaton became the owners of the property, and as such they were entitled to carry on the business which they did for some period of time, and to make sales thereof. Dimon v. Hazard, 32 N. Y., 65; Stanton v. Westover, 101 id., 268. The evidence very clearly shows that Frank G. Arnold knew of the negotiations made and of the terms agreed upon for the transfer of one-half interest in the stock of goods to Eaton; he became bound thereby; he was in no situation to complain of the transfer. Saunders et al. v. Reilly, 105 N. Y., 20; 6 N. Y. State Rep., 452.

We think the question made as to whether the transfers were with fraudulent intent were questions of fact and not of law. Bulger v. Rosa, 29 N. Y. State Rep., 679.

(2) We think no error was committed by the referee in refusing to find that the firm of Pratt & Arnold was insolvent at the time of its dissolution, nor that the transfer made with the assent of both members of the firm to Dr. Eaton was not for his son Carl S.; nor in refusing to find that Eaton only acquired an equitable interest in the property of Pratt & Arnold; both members of that firm assented to the transfer to Eaton, and, as before-observed, it was made without any fraudulent intent; nor do we think the evidence required a finding on the part of the referee that Arnold & Eaton should account for “any excess of the value of the said property over the pretended considerations;” on the contrary, we are of the opinion that the plaintiffs obtained all the relief they were entitled to at the hands of the referee, and his direction that the complaint should be dismissed as to John D. Arnold and Carl S. Eaton, on the merits, was correct and should be sustained.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.