author: FITZSIMONS, J.

text:
    Annie Myerson, as Administratrix, etc., Resp'ts, v. Hartford Fire Insurance Company, App'lt.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Insurance—Appraisers.
    Under an appraisement clause in a policy of fire insurance, all that the company is entitled to is a fair and just appraisement of the destroyed and damaged goods hy competent and disinterested apprasers.
    3. Same.
    The fact that the person named by the insured as his appraiser has acted in that capacity on similar occasions, does not make him an incompetent or interested appraiser.
    8. Same.
    Whether or not the person selected by the insured was competent and disinterested, is a question of fact for the jury to determine; not one of law for the court to decide.
    4. Evidence—Opinion,
    In an action on a fire policy, the plaintiff, who purchased many and knew the value of other articles, may testify to the value of the damaged property.
    5. Same—Proofs of loss.
    Where the fire occurred a few days after the death of the insured and the widow had then applied for letters of administration, which were duly issued to her a few days thereafter, she is justified in signing the proof of loss as administratrix-elect.
    Appeal from a judgment in favor of plaintiff.
    Cardozo & Nathan, for app’lt; Charles Wehle, for resp’t.
   FITZSIMONS, J.

The defendant insured the household furniture and other personal property of plaintiff’s intestate. Said property was destroyed and damaged hy fire to the extent of $401.35, as claimed hy plaimtiff. The policy was for $500, and the jury rendered a verdict in the plaintiff’s favor for $375. The defendant’s policy of insurance contained the following provision:

“In the event of disagreement as to the amount of the loss, the same shall he ascertained hy two competent and disinterested appraisers, the assured and the company each selecting one.”

Because of the damage aforesaid, and under said contract, the parties hereto each selected a person to adjust said damage; but no appraisment was ever had, because, as defendant contends, the plaintiff refused to name a competent and disinterested person as her appraiser. The defendant selected one Mr. Baldwin to act aa its appraiser, he having acted in a like capacity for insurance companies prior to the instance in question. The plaintiff nominated three persons. Each of them were objected to by the defendant, upon the ground that they had severally acted as public adjusters, on other occasions and for other persons; that is to say, that they represented the interests of the assured in matters like the one under consideration, besides that they were, at different times, copartners of Mr. Kenny, the plaintiff’s adjuster. The defendant’s counsel, at the close of the case, asked the trial justice to charge:

“That, if the jury find that Mr. Handte, Mr. Otto, and Mr. Baird, the three persons named by the plaintiff as appraisers, were in point of fact, public adjusters, and were then, or recently had been, partners of the plaintiff’s agent, Mr. Kenny, that they were neither competent nor disinterested, within the meaning of the policy.”'

The court refused so to charge, and the defendant excepted.

In refusing to so charge the justice did right. All that the < defendant, under its policy, is entitled to is a fair and just appraisement of the destroyed and damaged goods by competent and disinterested appraisers. The fact that the person named by plaintiff as her appraiser acted in that capacity on similar occasions surely would argue that he was a competent and experienced man. The fact that he so acted should not stamp him as an interested person. Even the defendant seemed to recognize the truth and force of this suggestion, because it selected as its representative one who had acted as an appraiser for insurance companies on many prior occasions. 'Whether or not the persons selected by plaintiff were competent and disinterested was a question of fact, for the jury to determine; not one of law, for the court to decide. That question was fully and fairly submitted to the jury, and they held against the defendant, and their finding is final.' " : . ..j

The plaintiff was permitted to testify as to the value of the damaged property. The defendant deemed such testimony improper. It is true that it is usually unsatisfactory, and had better be avoided if possible; but, in cases like this one, it is usually the best, and often the only, testimony that can be had. The very careful cross-examination of defendant’s counsel shows upon what she based the estimate of the value of such articles. Many of them she purchased; others, she knew their value; her ex- ( perience and observation formed a basis for the valuation of the balance of them. Taking her testimony as a whole, the jury were justified in believing that her valuation was just and fair.

The fire occurred a few davs after the death of the assured, and the plaintiff had then applied for letters of administration, which were duly issued to her a few davs thereafter. She was certainly justified in signing the -proof of loss as administratrix-elect. She was so in fact, and was the person who could best sign and submit the same. In onr judgment the proof of loss served complied fully with the requirements of the defendant’s policy of insurance.

The judgment is affirmed, with costs.

All concur.


source: Caselaw Access Project

author: McCARTHY, J.

license: Public Domain

text:
    Joseph Moskowitz et al., Resp'ts, v. George Hornberger, App'lt.
    (New York City Court, General Term,
    Filed February, 1896.)
    1. Broker—Commission.
    Where, under the original agreement, the broker is entitled to his commission when he has produced a purchaser ready, willing1 and able to enter into a contract, a subsequent agreement by the broker, in consideration of the execution of such contract, not to claim or demand commissions until delivery of the deed, is without consideration and cannot affect the obligation of the vendor to pay them.
    3. Evidence—Broker.
    Evidence offered by defendant, in an action for commissions for effecting1 an exchang-e in real estate, to show that the title of the customer whom the broker produced was not a good or marketable one, and that he was not the owner or had the right to exchange the property which he offered in exchange, is admissible.
    Appeal from a judgment in favor of plaintiffs.
    Lewis S. Goebel (Edward W. S. Johnston, of counsel), for app’lt; David Leventritt, for resp’ts.
   McCARTHY, J.

From an examination of the evidence, it appears that the original agreement between the plaintiffs and defendant took place in the latter part of October or the first of ¡November, and after certain negotiations the contract for the exchange contemplated was signed November 9, 1893. In the absence of any special agreement at this time, these plaintiffs, upon the production of a purchaser or customer ready, willing and able to make the exchange as contemplated, became entitled to the commission agreed upon, to wit, one per cent., less the $50 for a present to the defendant’s wife. Nor could the plaintiffs be deprived of their commission by reason of any caprice or humor of the defendant, if the other party came within the requirements as stated. This being the law, in the absence of some special agreement the plaintiffs were entitled to recover. On the trial, however, the defendant offered in evidence the following) agreement, dated November 10,1893, which was admitted:

“No commissions to be paid to us by Geo. Hornberger unless -deeds to said premises pass, unless Hornberger’s title should prove on examination unmarketable, in which, event he is to pay the commission, to wit, $400.

“Dated, November 10, 1893. F. B. POTASH,

“MAX. I. LAFKOWITZ,

“JOS. MOSKOWITZ,

“A. ROLL.”

We think this agreement was without consideration, and thus null and void, and did not destroy the plaintiffs’ cause of action. Where, under the original agreement, the broker is entitled to his commission when he has produced a purchaser ready, willing, and able to enter into a contract, a subsequent agreement by the broker, in consideration of the execution of such contract, not to claim or demand commissions until delivery of the deed, is without consideration, and cannot affect the obligation of the vendor to pay them. McComb v. Von Ellert, 7 Misc. Rep. 59; 57 St. Rep. 501.

íhis contract of November 10, 1893, being void, left the plaintiffs to pursue their remedy on the same cause of action pleaded. But the plaintiffs, disregarding the fact that the contract just spoken of was void, and accepting it as a valid and binding obligation, proceeded to try the case, not on the cause as set up in the pleadings, but asked and obtained leave, against objection and exception, to amend the complaint in an effort to meet this void agreement. This was, in our judgment, error, since it was proceeding upon an entirely distinct and different cause from that alleged in the complaint, and a recovery here cannot be claimed as secundum allegata et probata. It is apparent, too, that the justice, in rendering his decision, based it entirely upon the agTeement which we have declared void. The original cause of action was to effect an exchange of the defendant’s property for certain property in Twelfth street. It was immaterial, in the absence of a special agreement, as between plaintiffs and defendant, and is of no consequence, whether defendant’s title was marketable or not; but it was important and material, before the plaintiffs could recover, to show that the purchaser or customer whom they produced to the defendant was able and competent to make the contract of exchange, or, in other words, that the title of their customer was good and marketable. We think the trial justice erred in rejecting the evidence offered by the defendant to show that the title of the customer whom the plaintiffs produced was not a good or marketable one, and that he was not the owner or had the right to exchange the property which he offered in exchange for the defendant’s. As to the ownership in fee simple by Kempner of the premises in East Twelfth street, we do not think it material, if it is shown that Kempner had the control of the same, although in the name of one Solomon Miller, who, in accordance with the directions and instructions of Kempner, entered into the agreement of exchange for the premises in question, and without objection by the defendant. The exchange was to be a substantial one, not in name, but in the property and land in question, and for which this defendant agreed to give plaintiffs their commission. The right to show that the customer produced by the plaintiffs was not the owner, and did not have title, as well as that the same was unmarketable, was certainly a condition precedent before the plaintiffs could recover. Without passing upon the other questions raised, we deem these errors sufficient. The judgment is therefore reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

All concur.


author: O’DWYER, J.

text:
    Justus E. Zender, Resp't, v. Seliger-Toothill Company, App'lt.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Evidence—Parol.
    Oral evidence may be given, not to contradict or vary, but to prove what the written contract really is.
    2. Contract—Construction—Question of fact.
    When a contract is made out, partly in writing and partly by parol, its construction is a question of fact for the jury.
    3. BD amases—Services.
    In an action for the breach of a contract of employment, the measure of damages is the whole amount of the stipulated compensation, down to the day of the trial, if the term of employment has not then expired, subject to being diminished by earnings in other employments.
    Appeal from a judgment in favor of plaintiff.
    John R. O’Gorman, for app’lt; A. Walker Otis, for resp’t.
   O’DWYER, J.

The action is brought to recover damages for a breach of a contract of employment at an annual compensation of $2,000. The defendant insists that the contract was in writing, while the plaintiff contends that it was partly written and partly oral. It is well settled that oral evidence may be given, not to contradict or vary, but to prove what the contract really was. Condit v. Cowdrey, 123 N. Y. 463; 34 St. Rep. 107. And when a contract is thus made out, partly in writing and partly by parol, as here, its construction is a question of fact for the jury. The rule is well stated in Campbell v. Jimenes, 3 Misc. Rep. 516; 52 St. Rep. 495, by Judge Pryor:

“If the intention of the narties to a written contract be intelligible upon the face of the instrument, extrinsic proof of its meaning is inadmissible, and its construction is for the court alone. But if the terms be so obscure or ambiguous as not to be understood without the aid of adventitious light, then evidence, not only of the surrounding circumstances, but of the acts and conveisations of the parties, is competent to illustrate their intention; and, upon such evidence, the meaning of the instrument is for determination by the jury.”

From the evidence it appears that prior to the letter of February 21,1895, the plaintiff’s assignor had conversations with the officers of the defendant, in which the subject of his employment by it at an annual salary of $2,000 was discussed, and plaintiff’s assignor finally offered to accept the position at $1,500 per year.

At the last of these interviews, which was had on Saturday, it was arranged that the defendant would write the plaintiff’s assignor on the following Tuesday or Wednesday. Not hearing from defendant at that time, the following telegram was sent to the defendant by the plaintiff’s assignor, “It is very necessary for me to hear from you to-day;” and in response to that telegram the defendant wrote;

“Your telegram received. Mr. Toothill and I have considered jour application, and have come to the conclusion to give you a trial, for a month or so, for a compensation of eighty dollars per month. The idea is not to cut you down from your original figures. If you will show yourself to be the man we want, we will gladly malee yearly arrangements to mutual satisfaction, and put you in a position to earn more than you have asked. Our Mr. Seliger has told you just exactly what we expect you to do. The experience we had together does not warrant it,—to do any better for the present, until you prove to yourself to us a competent man. If you should accept our proposition, let us know by return mail, as we want you to start with us on the first of the month.”

This telegram and letter the defendant relies on as showing the -contract between the parties. In the conversations preceding the letter, nothing was said by either of the parties about a monthly hiring. The negotiations were confined to the question of the lowest rate at which plaintiff’s assignor was willing to serve, and whether defendant could afford to hire him at $1,500 per annum. Not a word was said indicating a monthly employment. In the letter the defendant says that it has come to the conclusion to give plaintiff’s assignor a trial for a month or so at a compensation of $80 per month. Then follows this sentence, “The idea is not to cut you down from your original figures.” Defendant intended to say to plaintiff’s assignor-that the proposition to work for one year for $1,500 was not to be cut down; it was not to be reduced or interfered with in any way; provided, only, that plaintiff’s assignor should show himself to be a competent man. Further on, defendant savs:

“If you will show yourself to be the man we want, we will gladly make yearly arrangement to mutual satisfaction, and. put you in a position to earn more money than you have asked. Our Mr. Seliger has told you just exactly what we expect you to do. The experience we have had together does not warrant it,— to do any better for the present, until you prove yourself to us a competent man.”

The question of competency was to determine the rights of the parties. If, after a month or so, plaintiff’s assignor should prove to be competent, he was to receive $1,500 per year,—that is, “yearly arrangements to mutual satisfaction;” for plaintiff’s assignor was content with $1,500, and, if defendant agreed thereto, there would necessarily be “mutual satisfaction,” coupled with the suggestion that he might earn even more money than he had asked, provided, always that he was competent. On February 26 th, five days after this letter, defendant wrote the plaintiff’s assignor:

“We do hereby place you in charge of New York office from [March 1st, as per our previous letters. We hope that you will he successful, and that we will be together for many years to come.”

This statement is entirely inconsistent with the theory that defendant had only a week before hired plaintiff’s assignor for a single month. Then, again, on April 8, 1895, defendant writes:

“You know as well as we do that we would be too delighted to pay you three times the amount you have been drawing, if you would only have earned it.”

And finally, on April 11, 1895, defendant writes:

“You know what our arrangement was,—one month on trial, and, if you were successful, that we were to engage you permanently.”

Upon this evidence, it was properly left to the jury to determine what the contract between the narties was.

The court was requested by the defendant to instruct the jury that “in any event the proper measure of damages is the wages only up to the time of the trial of the action, and not up to the time when the contract of employment would have expired if it existed;” and, to the refusal to so charge, defendant duly excepted. The action was tried on the 8th day of October, 1895, so that, at the time the jury were called upon to assess the damages sustained by reason of the breach of the contract of employment, five months of the term provided for therein had not expired. The refusal to charge as requested was error. The plaintiff’s cause of action arose at the time of the breach of the contract, and he was then entitled to sue and recover such actual damages as the evidence upon the trial showed he had sustained by the defendant’s breach. In actions of this character the measure of dámages is the whole amount of the stipulated compensation, down to the day of the trial, if the term of employment has not then expired, subject to being diminished by earnings in other employments; and it is obligatory upon the servant, when wrongfully discharged, to use-diligence to find other employment, and thus reduce the damages. Everson v. Powers, 60 How. Prac. 166; Howard v. Daly, 61 N. Y. 362; and Everson v. Powers, 89 id. 527. The uncontradicted testimony is that the plaintiff’s assignor, after his discharge, sought other employment, but was unable to find it; that he then started a little business on his own account, and had been engaged in it for about three months; that it was a losing business, and he had not made any money. Defendant did not show, or attempt to show that he could have obtained employment which he did not accept. By the verdict the jury have found that a yearly contract was made between the parties, at a salary of $1,500 per annum, and assessed the damages for the breach thereof at the sum of $300. Applying the rule of damages as already stated, the plaintiff at the time of the trial, was entitled to recover a sum equal o the stipulated compensation for six months, which would amount to the sum of $750; so that it clearly appears that the error complained of was not harmful to the defendant, and does not call for a reversal of the judgment.

The judgment should be affirmed, with costs.

All concur.


author: CONLAN, J.

text:
    William Fernschild, App'lt, v. D. G. Yuengling Brewing Company, Resp't.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    Contract—Construction.
    Where a resolution, adopted by the new corporation, authorizes-the execution of a bill of sale by the old corporation of certain-property and an assumption of defendant’s debts, no legal liability arises on the part of the new corporation to do anything until such bill of sale is executed, and, when executed, such bill declares-what was meant to be conveyed and what the purchaser intended to-assume.
    Appeal from a judgment in favor of defendant.
    Forster, Hotaling & Klenke, for app’lt; Samuel Untermyer and Moses Weinman, for resp’t.
   CONLAN, J.

The action was brought to recover the amount, of two bonds and interest, executed by the D. G. Yuengling, Jr., Brewing Company, the predecessor of the defendant, and which plaintiff claimed this defendant had assumed and agreed to pay» The defendant denied that it assumed them. The bonds sued upon are two of an issue of $1,258,000 of bonds, all of which had been secured by a so-called deed of trust or mortgage, pledging the plant and all of the real property of the brewing company as security for their payment. Besides this trust deed or mortgage, there were prior mortgages, aggregating $302,213.72, so that the trust deed was, in effect, a second or junior mortgage lien. It appears there were numerous defaults in the payment of interest upon the mortgage bonds, and the trustee foreclosed the mortgage, and a sale was had under the decree of foreclosure in September, 1893, and the property covered by the mortgage was bid in for the sum of $20,000 over and above the amount of prior liens, in behalf of a committee of the bondholders, who were desirous of affecting a rcoganization of the company. All of the bondholders were invited to join in the plan of reorganization, and, out of the total of $1,258,000 bonds issued, $1,202,800 were brought into the reorganization. The non-assenting bondholders followed the proceeds of the foreclosure sale, and took their pro rata share of the purchase money. The plaintiff was not a party to the reorganization, and received the full share to which he was entitled from the proceeds of sale. The plaintiff says the reorganization committee, in its plan, provided for the assumption and payment of such bonds as should he held by the signers thereof in the bonds and stock of the new company, and this appears to have been carried out on the following basis, i. e. the assenting bondholders took new bonds to the extent of seventy-five per cent, of the face value of the surrendered bonds, and the remaining twenty-five per cent, of their face value in the stock of the new company. The plan of reorganization also provided that “the bonds- undistributed may be sold by the committee, or used by them for the purpose of borrowing money with which to pay non-assenting stockholders the distributive share to which they may be entitled out of the proceeds of the sale of the property of the company.” The former company was possessed of other property, not covered by the trust deed or prior mortgages, aggregating many thousands of dollars, which the new company proposed to and did subsequently acquire by bill of sale, which ia more particularly referred to and discussed hereafter, with the intention, as declared in a resolution, adopted at the reorganization meeting on December 27, 1893, “that this company shall in all respects stand in the place and be the successor of and so fax as may be the same corporate body as the D. G. Yuengling, Jr., Brewing Company aforesaid.” In addition to the indebtedness of $302,213.72, secured by a prior mortgage, and of the bonded indebtedness of $1,258,000, secured by the deed of trust, there were also unsecured debts to the amount of nearly $200,000, as appears by the minutes of the meeting of December 27, 1893. It was the declared purpose of the new company to provide for all of this existing indebtedness in the manner hereinbefore detailed. The plaintiff admits that the agreement of reorganization did not provide for the assumption of his bond, debt, or obligation, and also that he received his share of the proceeds of the sale of the mortgap;ed -premises, including interest; but he claims, and seeks to maintain, that the indebtedness to him was assumed by the defendant in a certain resolution, adopted at the. meeting above referred to; and it is upon this resolution that he chiefly relies for a recovery herein. The resolution is as follows:

“Resolved, that this company assume all the debts, obligations and liabilities of every kind and description of the D. G. Yuengling, Jr., Brewing Company, in addition to the bonds and other obligations mentioned in the agreement of reorganization, and thereby provided to be assumed by this company, and that, in return for, and as a consideration of, the assumption of said debts, obligations, and liabilities, this company accept from said D. G. Yuengling, Jr., Brewing Company the bill of sale presented by the chairman, transferring unto this company all the personal property, effect, and chattels of every kind, including the stock in trade, book accounts, and good will of said D. G. Yuengling, Jr., Brewing Company, not included in the property covered1 by the trust mortgage given by said company to the Farmers’' Loan & Trust Company, to secure bondholders, and not heretofore acquired by this company; the intent hereof being to vest in this company all the property, right, franchises, privileges, and good will of the old company, and to assume all the obligations and debts of that company, so that.this company shall in all respects stand in the place and be the successor of so far as may be the same corporate body as the said D. G. Yuengling, Jr., Brewing Company.

It is conceded that this resolution, within the construction and limitation put upon it by the defendant, became binding upon the new company. - At the same meeting a bill of sale, as contemplated by said resolution, and bearing date on the same day, was prepared and executed, and by its terms transferred all of the property referred to in the resolution to the defendant, and the same contained the following provision and limitation:

“And the party of the second part [defendant] doth hereby covenant and agree that, in consideration of said transfer as aforesaid, it will assume, and doth assume, the payment of all the debts and obligations of the party of the first oart [the former company], excepting the mortgage bonds of said party of the first part, and excepting all other indebtedness otherwise provided for in a certain plan or agreement of reorganization of the said party of the first part, nursuant to the terms of which the party of the second part was organized.”

A schedule is annexed to this paper, containing a description and enumeration of the property intended by it to be transferred. On these two instruments, the resolution and the bill of sale, hang all the law, if not the profits, of the case at bar.

We have shown, at some length, that the plan of reorganization comprehended and provided for the assumption and redemption of the bonds of assenting holders in the proportion of 75 per cent, of their face value in bonds of the new company, and 25 per cent, of their face value of the stock of the new company; that the non-assenting bondholders, including the plaintiff, followed the proceeds of sale, and received, their proportionate share thereof, and that the committee had otherwise provided for them, by the pledge of the undistributed bonds or the sale of so much thereof as should be necessary for that purpose, and that the steps taken by the committee, down to the point of the adoption of the resolution in question, had mainly to do with the bonded indebtedness, and making holders, and also providing for the nonassenting bondholders in the way described, and this appears to have been done before the adoption of the resolution. The resolution might, therefore, well be said to have reference solely to the acquiring title to and possession of the remaining property of the old company by an instrument of transfer which should also provide for the disposition of the proceeds, or, as in the case at bar, by the assumption of certain debts and obligations referred to therein, and which, by the very terms of the instrument itself, did not include any of the mortgage bonds of the old company, whether of assenting or nonassenting holders, for that class of debts was expressly excepted from the operation of the instrument of transfer. The resolution, in the light of all that preceded it at the meeting, was itself but preliminary to the bill of sale, which it expressly referred to and mentioned, and that paper, when executed, was to become and be the controlling instrument, so far as there was any declaration therein of its intent,purpose, or meaning, and it was necessary that some such paper, or some paper, should be executed in order to give any legal effect whatever to the resolution which had been adopted having in contemplation the execution of a subsequent instrument of transfer. The words, “in addition to the bonds and other obligations,” in the resolution, could not, therefore, have been intended to have any other or different signification than if the expressions “besides,” “other than,” or like terms, had been employed, because the outstanding bonded indebtedness had been otherwise provided for; and we do not think that the plaintiff will for a moment contend that the committee, under any plan of reorganization, contemplated the payment of nonassenting holders in full or in cash, when assenting holders were to receive a percentage of new bonds, and new stock amounting, together, to only the face value of the old bonds surrendered.

Indeed, the plaintiff, in his complaint, says “that the agreement of reorganization referred to in said resolution did not provide for the assumption, by this defendant, of the bond, debt, or obligation held or owned by this plaintiff,” and he does not pretend that it did any more for any other bondholder. He seeks to draw from the resolution what? Hot an inference that assumption of the old bonds was intended by the committee, but merely that certain language employed, viz. “in addition to,” necessarily included the old bonds, whether the committee so intended them or not, and that, therefore, they were bound by it. But, even then, the olaintiff has gone only half of the journey. The resolution authorized the execution of a bill of sale, and until that paper was executed there company did not execute the bill of sale, the defendant got nothing; and if it got nothing, it would have assumed no obligations. ■When, therefore, the bill of sale was executed, we find exactly what was meant to be conveyed, and what was intended the purchaser should assume, and did assume; and that paper, as we have seen, expressly excepted the mortgage bonds.

We have given careful consideration to the argument presented in the very elaborate brief for the appellant, but have not found anything therein which has seemed to warrant an interference with the judgment recovered. The plaintiff has not been misled by anything which has occurred in the departure of the old company and the arrival of the new. He did not see fit to assent to the proposition which was accepted by $1,202,800 in interest of the $1,258,000 outstanding bonds, but chose rather to follow the proceeds of sale. The market value of the securities is not given in evidence, and we are not even prepared to say whether he has been the loser or not; and the pecuniary value of the plaintiff’ interest does not otherwise appear than as an alleged balance claimed to be due him after receiving and accepting all that he said he was entitled to of the proceeds of sale. If anything further were necessary to show what was intended to be covered by the resolution, it is to be found in the committee’s report, which was adopted at the same meeting, and specifically enumerated the debts which were to be assumed, while the bill of sale expressly excepted the mortgage bonds.

For the reasons stated, we think the judgment appealed from' should be affirmed, with costs.

All concur.


text:
    Levy, App'lt, v. Meirowitz, Resp't.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    Costs—Security.
    In an action brought to recover damages for breach of prom-1' ise of marriage and seduction, proof was held sufficient to sustain an order, requiring plaintiff to furnish security for costs.
    Appeal from an order, denying a motion to vacate an order granted exparte, requiring plaintiff to furnish security for costs.
    Max Altmeyer, for app’lt; Charles H. Smith, for resp’t.
   O’DWYER, J.

This is an appeal from an order denying a motion made to vacate an order granted ex parte requiring the plaintiff to furnish security for costs. The action is brought to recover damages for breach of promise of marriage and seduction. The answer denies the material allegations of the complaint. It is , conceded that at the time of the commencement of this action in 1894, the plaintiff was residing within the city of New York. On the 10th day of December, 1895, the defendant, upon an ex parte was no legal liability of the defendant to do anything. If the old application, obtained an order requiring the plaintiff to furnish security for any costs that may be awarded to the defendant in this action, upon the ground that since the commencement of the action the plaintiff has removed her residence to the city of Chicago, in the state of Illinois. Thereafter, upon the affidavit of the plaintiff’s attorney, an order was obtained to show cause why the aforementioned order should not be vacated and set aside, and on the return thereof additional affidavits were filed in behalf of both parties. A hearing was then had, and the motion was denied, and from the order entered thereon this appeal is taken.

It appears that the plaintiff left the city of New York in the spring of 1895, and proceeded to the city of Chicago, where she still remains. It is claimed, however, that the plaintiff is only temporarily absent, on a visit, and this claim is based upon an interview plaintiff had with her attorney before leaving New York, in which she informed him that “she did not intend to remove from the city, or make her residence in Chicago;” that since her arrival in Chicago, plaintiff’s attorney has had communications (they are not contained in the record) from which, as well as conversations had with her prior to her departure, he believes she has not given up her residence in this city. On the other hand, it appears that the plaintiff is residing in the city of Chicago, engaged in carrying on a business peculiarly her own; that before leaving this city she tried to obtain from defendant the necessary money wherewith to pay her fare to Chicago, and that since her arrival in that city she has invited several of her acquaintances who were temporarily there to call upon her at her residence in Chicago, where she was living with a man named Meyer, and was known by that name; that on one occasion in the latter part of the summer of 1895 she stated “that she intended to continue to reside in Chicago, and not to come back to New York.” These allegations are not" denied, and hence all that is shown by the statement made months before to her attorney is that since reaching Chicago she has changed her mind, and determined not to return to New York. The order below was right, and should be affirmed. Order affirmed, with costs.

All concur.


text:
    Leonard M. Gage, App'lt, v. Henry Peetsch, Resp't.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Appeal—Nonsuit.
    In reviewing a judgment upon a nonsuit, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference that is warranted by the proofs.

      3. 1<'ratj:d—What is.
    A vendor, who is possessed of knowledge of latent defects in hi» property, proposed to be sold, cannot honestly represent to an intending purchaser that it is free from such defects.
    Appeal from a judgment of nonsuit.
    William F. Randel, for app’lt; Edward W. S. Johnston, for resp’t.
   O’DWYER, J.

The appeal is from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the close of the plaintiff’s case. The action is brought to recover the sum of $550, paid by the plaintiff to defendant for the good will, stock in trade, and lease of a saloon, upon the ground that the defendant falsely represented that the property in question was wholly free from incumbrances or debt of any nature or character, excepting a certain chattel mortgage for $950, and that that sum was all that was due upon the mortgage; that it was a lien on the saloon and fixtures only; that the receipts averaged over $25 daily; and that, by accepting certain assignments of a bill of sale and lease, plaintiff would be fully entitled to conduct, maintain, and carry on said saloon, subject only to said debt of $950 upon the saloon and fixtures. Thereafter the plaintiff learned that the mortgage-covered, and was also a lien upon, the lease and license, and that the sumof $1,440.10 was due, and a valid, lien aft the time of the sale, under the mortgage, and he was compelled to surrender the saloon to the mortgagee. At the close of the plaintiff’s testimony-on the trial, the court, upon the motion of counsel for the defendant, granted a nonsuit, to which the counsel for the plaintiff excepted. The motion for a nonsuit was granted and made on the-following ground:

“That plaintiff has not proved a cause of action, as he has not proved any false representations, or any known to be false, and made with the intent to deceive; and that he has not proved any damages, or that the representations were false in fact.”

In reviewing a judgment upon a nonsuit, the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference that is warranted by the proofs. This disposition of a cause by a trail court is never warranted, unless it appears that the plaintiff is not entitled to recover after giving him the benefit of the most favorable view that a jury would be warranted in talcing of the evidence.

The plaintiff’s theory with respect to the facts, so far as they were supported by the evidence, must be deemed to be established; and, where inferences are to be "drawn from facts and circumstances not in themselves certain or incontrovertible, it is generally for the jury, and not for the court.

It appears, from the evidence, that one Connell stated to the plaintiff, in the presence of the defendant: “Here is Mr. Peetsch [defendant]. I am only his agent. He is my boss.” And also stated: “The earnings were $25 per day, the rent about $40, and the mortgage $950.” That Mr. Sloan, a real estate agent, who had the place from defendant for sale, introduced the plaintiff, and brought him to defendant’s place, and he (Sloan), in defendant’s presence, told plaintiff, when he suggested the necessity of having a lawyer examine the matter: “It is not necessary. The statement he [defendant] makes he is bound by it.” And, when plaintiff asked as to the defendant’s responsibility, Sloan said: “Mr. Gage, Mr. Peetsch is engaged in business, in a legitimate business, and he cannot afford to do anything that way.” Whereupon plaintiff said: “I understand, Mr. Peetsch, when I pay you $550, that I have invested in this place, subject to a mortgage of $950.” And the defendant answered: “That is all.” And plaintiff repeated: “Subject to a mortgage of $950. Is that all against it?” And defendant again replied: “That was all.” Plaintiff thereupon paid the defendant the sum of $550, and received a receipt for the same,together with assignments of the bill of sale and lease, heretofore referred to. It was subsequently learned that the mortgage was not only for $950, but for all sums due at any time for goods sold and advances made, and that, at this time, there was a due and valid lien against the place, including the mortgage, of $1,440.10, for which sum and lien the plaintiff was obliged to surrender the saloon under the mortgage'.

The evidence clearly shows that the defendant took plaintiff’s money, leading him to believe, and to rely upon the representations, that but $950 was due, when he knew the amount was much more. The defendant knew the mortgage was a valid lien, and an incumbrance against the saloon, for goods sold, in addition to the $950, and his omission to disclose that fact when asked by plaintiff was wrong, and he should not be allowed to retain the benefit so wrongfully procured. It is not only consonant with reason an d justice, but clearly settled in his state, that a vendor possessed o E knowledge of latent defect in his property, proposed to be sold, cannot honestly represent to an intending purchaser that it is free from such defects. Defendant’s answer to plaintiff’s inquiry was a false representation. It was not necessary for plaintiff to employ a lawyer and examine the mortgage on file. He had a right to rely upon defendant’s statements and accept them as true. The essential elements of the action—representations, falsity, scienter, ^deception, and injury—were proven, and it was error to nonsuit the plaintiff.

The judgment should be reversed, and a new trial granted, with costs to the appellant o abide the event.

All concur.


text:
    Amelia Mahro, by Guardian, etc., Resp't, v. Greenwick Savings Bank, App'lts.
    (New York City Court, General Term,
    Filed March 16, 1896.)
    1. Interpleader—Petition.
    A petition for interpleader, under section 115, chapter 689 of 1892, which does not state any facts showing the nature of the claim asserted, or that the claim is not frivolous, or that the claim creates any reasonable doubt as to which party is entitled to the fund, or that the claim has any foundation in fact, is sufficient.
    2. Same.
    There must be some reasonable foundation for a claim asserted, to entitle defendant, while admitting its liability, to have the claimants substituted by order of interpleader.
    Appeal from an order denying defendant’s motion to inter-plead. another as party defendant.
    Thomas F. Murtha and Jos. A. Gray, for app’lt; H. B. Osgodby, for appellee.
   O’DWYER, J.

This is an appeal from an order denying a motion made by the defendant to interplead one Charles Mahrs as the party defendant to the action and for other relief. The mo-ion was denied on the ground and for the reason that the petition of the defendant did not state the grounds of the alleged claim by Charles Mahrs, an fails to show that tire said Charles Mahrs makes such claim to the fund that he should be made a party defendant, or for the granting of the other relief prayed for.

The motion was made under section 115, c. 689, Laws 1892, and it is therein provided that:

“In all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons not parties to the action, who claim the said fund the court in which the action is pending, may on the petition, etc., make an order amending the proceedings in the action by making such claimants parties defendants thereto.”

The petition on which the defendant moved, as far as material, is as follows:

“That one Charles Mahrs, who is not a party to this action, has made a claim against your petitioners for the money deposited by the said Amelia Mahro, which is the same fund, which this action is brought to recover, and has claimed and claims that the* said money and fund belong to and are payable unto him, and has forbidden your petitioners to pay the same to any other person, and the said plaintiff in this action also claims the said money and fund as her own; that the said claims are each made without any collusion with your petitioners; that your petitioners, in making'this application, are not acting in collusion with or at the reouest of either of tie said claimants of the said money, have not been indemnified by ei ther of them, are indifferent between them in respect to the said money, have no beneficial interest in the said money, and have no interest in the question to whom the same belongs; that they are ready and willing to pay the said money now standing to the credit of the said account, on production and surrender of the said passbook, and upon the said Charles Mahrs being made a party defendant to this action, to whichever of the said claimants this court shall decide the same to belong, and to keep the same on deposit to the credit of this action until final judgment in this action so amended as provided by the said section 115 of the said act. But, by reason of such conflicting claims to the said money, your petitioners do not know, and cannot determine, without hazard to themselves, to which of the said claimants the said money belongs, or to which of them they can safely pay the same, "and they cannot safely pay the said money to either of the said claimants until the said Charles Mákrs shall have been made a party to this action, and this court shall decide to which of the said claimants the said moneys belongs.”

It is clear that the defendant asks to substitute another party as defendant on the mere allegation that he claims the fund. The petition does not state any facts showing the nature of the claim asserted by Charles Mahrs, or that the claim is not frivolous; and without such facts it is impossible to say whether such claim creates any reasonable doubt as to which party is entitled to the fund, or that the claim has any foundation in law.

In Bank v. Yandes, 44 Hun, 59, it is held:

“The rule now is that a reasonable doubt must exist in order to justify the bringing of an action of interpleader.”

And this action is cited with approval in Feldman v. Grand Lodge, 46 St. Rep. 122, where O’Brien, J., says:

“The rule is now settled that there must be some reasonable foundation for a claim asserted, to entitle defendant, while admitting its liability to have such claimants substituted by order of interpleader.”

The case of Williams v. Insurance Co., 8 St. Rep. 567, is also an authority in point. Judge Learned delivering the opinion said: v

“There must always be a real doubt in the mind of the defendant, based upon facte, as to who has the just claim, before inter-pleader will be permitted.”

See, also, Mars v. Albany Sav. Bank, 46 St. Rep. 464, and the same case, again reported upon a subsequent appeal, 23 N. Y. Supp. 658.

It is suggested, in the brief of the defendant’s counsel, that, if the petition is defective in not setting forth the grounds of the alleged claim of Charles Mahrs, yet such grounds do appear in the affidavit of the plaintiff, and consequently were before the court on the motion.

Plaintiff states, in her affidavit:

“That her father has no interest whatever in the fund, and he never made any such claim, to her knowledge, until a short time before the commencement of this action, when she was informed he made such claim to the officers of the bank. That on December 7, 1895, she attempted to draw some money from the said account, the defendant refused to permit her to do so, and the officers of whom she made demand told her that the bank book did not belong to her, but had been stolen. Plaintiff denied that ‘‘such was the case, and later on the same day she was permitted to draw $75. On December 12, 1895, she again went to the bank to draw some money, but was refused permission to- do so; the bank’s officer’s giving as an excuse that the hook had been stolen, and did not belong to her. That the pass hook was isssued in her name, and belongs to her, and has always been in her possession, and no other person has ajby just or reasonable claim to it, or the money recorded therein.”

From these statements it appears that an interest in the fund is claimed by Charles Mahrs, the father of the plaintiff,' but for how much thereof, or upon what ground, does not appear; also that, upon two different' occasions, when the plaintiff attempted to draw money from defendant upon her account, some officer of the bank stated that the bank book had been stolen, and did not belong to her. From whom it is claimed the book was stolen, or at what time, does not appear. The order appealed from should be affirmed, with costs.

Order affirmed, with costs.

All concur.


author: HARDIN, P. J. GREEN, J.

text:
    Edwin B. Fiske, App'lt, v. Demian D. Williams, Resp't.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Contract—Construction.
    Where two constructions to an instrument are possible, one of which does not give significance to all the words used, and another can he given which will give force and effect to all the words found in the instrument, the latter construction is to he preferred and adopted, and in case the meaning of the words is doubtful, it is to be construed the most strictly against the covenantor whose words they are.
    2. Same.
    A transfer of stock, at the same time with the indorsement of note and with intent to secure its payment, is a pledge of such stock for the indorsement whenever liability as indorser should become fixed, and not for payment of note unconditionally.
    Appeal from a judgment, dismissing the complaint on the merits, after a trial without a jury.
    Robson & Robinson, for app’lt; P. M. French, for resp’t.
   HARDIN, P. J.

When Fiske indorsed the note, and delivered it to the defendant, he placed his name upon the note, which was to run some months to maturity. There was a twofold purpose accomplished by his indorsement: First, it was necessary that his name should be placed upon the note in order to transfer the legal title to the note; second, he, by placing his name upon the note, made a commercial contract, which made him additionally liable for the debt of the maker in the event the note was presented for payment at its maturity, demand and notice of protest given. At the same time that he indorsed the note, there were accompanying it 100 shares of the Scugog Medicine Company stock, that were pledged as collateral to the maker’s obligation to pay the nqte. Apparently, the defendant, who was to advance the money for the note, was not satisfied with the obligation of Madden, the maker, nor with the Scugog Medicine stock, Imd required further security as a condition of parting with his money for the note. Thereupon, apparently, the plaintiff delivered to the defendant 15 shares of the Standard Electric Signal Company stock; and, in connection with the delivery of the note and the Scugog Medicine Company stock, he delivered the 15 shares of the Standard Electric Signal Company stock, and, simultaneously with the delivery therewith, executed an agreement which is set out in the findings of fact made by the trial judge. Upon an inspection of that agreement, it is found to recite that Fislce, the plaintiff, was to or had indorsed the note in question, and there is a recital in the agreement to the effect that the stock was delivered by the plaintiff, to wit, the 15 shares of the Standard Electric Signal Company, as collateral to the indorsement. If the language of the instrument closed there, then there might be force in the contention of the plaintiff. But there was further language used, to wit:

“And it is expressly undei'stood and agreed that the holder and owner of said note, if the same is not paid on or before maturity, is first to exhaust his remedy against R. M. Madden, the maker; and, if the security given by him is not sufficient to pay and discharge said note, then the certificate of stock hereto annexed is for the payment of such deficiency, whatever it may be.”

It is a well-settled canon for the construction of instruments executed by parties that full force and significance should be given to all the language used by them, and that if two constructions are possible to an instrument, one of which does not give significance to all the words used, and another can be given to the instrument which will give force and effect to all the words found in the instrument, the latter construction is to be preferred and adopted; and, in case the meaning of the words is doubtful, it is to be construed the most strictly against the covenantor whose words they are. Applying these rules of construction to the instrument executed by the plaintiff, it seems reasonable to place "upon it the construction which evinces an intention to pledge his ■stock as security for any deficiency that might arise after exhausting the remedies against Madden, the maker of the note; and. after conversion, and application of the proceeds of the sale of the Scugog Medicine Company stock, and for the purpose of satisfying the deficiency which arose after exhausting the prior sources, the stock of the Standard Electric Signal Company was a security in the hands of the defendant, and he was'entitled to it for the purpose of satisfying “the deficiency” remaining after the exhaustion of the liability of Madden and the sale of the Scugog Medicine Company stock. Hence, at the time this action was commenced, the defendant had not wrongfully converted the property of the plaintiff, known as the 15 shares of the Standard Electric Signal Company described in the complaint; and it was therefore proper, at the close of the trial, to order judgment in favor of the defendant. The judgment should be affirmed.

Judgment affirmed, with costs.

FOLLETT, ADAMS and WARD, JJ., concur.

GREEN, J.

(dissenting). The indorsement of the note, the execution of the agreement, and pledge of the stock by Eiske were all one and the same transaction. The note was payable to his order, and indorsed by him and delivered to Williams so indorsed. The note itself is proof of the intention and understanding of all the parties that Eiske’s liability was that of an indorser only. This is further emphasized by the agreement itself, which contains the recital that the maker of the note, Madden, had given 100 shares of stock “to secure the indorser of said note from any harm,” as well as to secure the payment of said note. If it had been the intention of the indorser to secure the payment of the note, it would have been so provided in the clause of the contract wherein was recited the collateral which had actually been given for that purpose. But that was not its purpose. That is expressed in cleai and unmistakable terms:.“Now, the 15 shares of capital stock of the Standard Electric Signal Co. hereto annexed is given as collateral security for my indorsement of said note.” The contract, therefore, was a contract of indorsement, as shown by the note itself and the agreement. Eiske’s liability as indorser was limited, and depended upon the condition that the holder of the note should make demand for payment at maturity, and, upon default, give notice of dishonor to the indorser. If the holder omitted to perform these essentials, then the indorser would stand discharged. These prerequisites were not fulfilled by the holder, ■and the indorser’s liability as such was never fixed, and he is discharged from all liability upon that note.

It is claimed however, that defendant could enforce his deficiency, after exhausting the remedy against Madden, ‘by virtue of the last clause of the agreement made by Eiske. I do not so construe that portion of the contract. It is apparent that that clause was inserted by plaintiff as a protection to himself after his liability as indorser had become fixed by demand for payment, default and notice given him of same. It was then provided that "Williams should exhaust his remedy against Madden and the security given by him for the payment of the note before enforcing payment against the indorser. Without this agreement, Fiske, as indorser, could not compel the holder to sue the maker first, or enforce his claim against the security given by the maker, and, in the absence of a conditional and controlling equity, resort to a collateral security. Fiske therefore provided by this contract, that the holder should first resort to the maker and his collateral. Madden’s liability was absolute. Fiske’s was conditional upon the holder fulfilling the obligations imposed upon him by the commercial law,—to present the note for payment and give notice of nonpayment in the mode prescribed by the settled rules of that law. He was under obligations to Fiske to fix his liability as indorser before resorting to Iris security for the pledge given under the implied assurance of law that he should have notice of presentment, demand and default. It appeal's to me that if Fiske and Williams intended an unconditional grant the contract would not have first provided by its terms for a conditional and then an unconditional grant. Certainly Fiske could not have intended to give his stock as collateral security for his indorsement of the-note—that is, conditionally,—and then in the same sentence free it from those conditions by giving it as security for the payment of the note.

A reasonable construction of this entire contract leads me to the conclusion that the stock of plaintiff was pledged as security for his indorsement whenever his liability as indorser should become fixed, and not for the payment of the note unconditionally. His liability as indorser was never fixed, and he is exonerated from such liability by the failure of this defendant to perform the obligations imposed upon him.

The judgment should he reversed, and a new trial granted, with costs to abide the event.


author: PER CURIAM.

text:
    Bell's Asbestos Company, Appl't, v. H. W. Johns Manufacturing Company, Resp't.
    (Supreme Court, Appellate Division, First Department,
    Filed April 24, 1896.)
    Bill of particulars—Premature application.
    Where it appears from the examination of the papers that a bill of particulars was not needed for the purpose of preparing the answer, the motion is prematurely made and should be denied.
    Appeal from an order directing service of bill of particulars.
    Herbert Barry, for app’lt; L. E. Sexton, for resp’t.
   PER CURIAM.

It appears from an examination of the papers upon this appeal that the bill of particulars was not needed for the purpose of preparing the answer to be put in to the plaintiff’s complaint, and therefore the motion was prematurely made, and should have been denied. It may, however, be proper to grant a bill as to some of the particulars referred to in those papera in order that the defendant may prepare for trial.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, with leave to renew after issue joined.


text:
    Benjamin Dreyer, Resp't, v. John H. Meyer et al., App'lts.
    (Supreme Court, Appellate Division, Second Department,
    Filed April, 21, 1896.)
    Trial—Evidence.
    The error in refusing to admit in evidence a certain receipt, which defendant swore the plaintiff signed with his mark, but which the plaintiff and his sons denied, is cured by the fact that the receipt in dispute had already been offered in evidence without objection.
    Appeal from a judgment, affirming a judgment in favor of plaintiff, recovered before a justice of the peace.
    Frank N. O’Brien, for app’lts; Klein & Rondich, for resp’t.
   PER CURIAM.

This action is to recover balance due for work done by the plaintiff as painter. The only question litigated on the trial was whether plaintiff had been paid in full or not. 'The real dispute was whether a certain payment of $117 was or was not made. The determination of the case involved the simple question who were to be believed, the plaintiff and his son or the defendants. The transaction in dispute was so simple, and so barren of surrounding circumstances tending to support either one party or the other, that on this record it is impossible for the appellate court to say who should have been credited. The determination of the justice, who saw the witnesses and heard them testify, must necessarily he conclusive. It is claimed that the justice erred by refusing to admit in evidence a certain receipt, which defendants swore the plaintiff signed with his mark, but which the plaintiff and his son denied. It is sufficient answer to this that the receipt in dispute had already been offered and received in evidence without objection. Further, the case was not tried by a jury, but before the justice. It appears he subsequently excluded the receipt, on the ground that it was not proved to have been executed by the plaintiff. As he tried and determined the questions of fact in the case, this ruling was, in effect, not a ruling on a question of law, but his decision that, as matter of fact, the plaintiff did not sign the receipt. The error was, therefore, harmless.

The judgment appealed from should be affirmed, with costs.


author: WILLIAMS, J.

text:
    In the Matter of an Application by R. H. Macy & Company, to Compel the Granting of a Store-keeper's License.
    (Supreme Court, Appellate Division, First Department,
    Filed May 1, 1896.)
    1. Excise—School-house.
    Board of excise must act upon an application for a license when made and upon the facts as they then existed.

      2. Same.
    Where the nearest entrance of the building sought to be licensed from the school house is less than two hundred feet, the license cannot be granted upon the condition that the entrance should be closed, when there is no intention to close it except on the condition that the license is granted.
    S. Same.
    The prohibition is against the selling of liquors in any part of the building- which is under the same control, where the nearest entrance to such part of the building fronts on the street within two hundred feet of the school house.
    Appeal from.an order quashing a writ of mandamus.
    The relators, having a large department store on Sixth avenue, extending from Thirteenth to Fourteenth streets, in the city of dxew York, made application to the respondents April 24, 1895, for a storekeeper’s license. May 4 and 7, 1895, the inspectors of excise reported that the nearest entrance to the relators’ store was within 200 feet of the nearest entrance to the public school building on the opposite side of the street. The relators’ premises had been licensed for two years prior to May 11, 1895. The respondents refused to grant the relators a license, for the reason that they had no license prior to the passage of chapter 480 of the Laws of 1893, and that the nearest entrance to their store was on the same street and within 200 feet of the entrance of a building •occupied exclusively as a schoolhouse, and that the respondents were of the opinion that it was not for the best interests of the community that strong and spirituous liquors should be sold in any building where dry goods or other 'articles of merchandise were sold and disposed of, and which was visited by women and children in large numbers; and the respondents were satisfied in their discretion that the relators’ store was not a fit and proper place to be licensed. This writ was obtained May 29, 1895, and the order quashing it was made August 6, 1895.
    Daniel G. Thompson, for relators; Julius M. Mayer, for resp’ts.
   WILLIAMS, J.

The first reason assigned by the respondents for refusing the license was under section 43, c. 401, of the Laws of 1892, as amended by chapter 480 of the Laws of 1893, which reads as follows:

“Mo person or persons who shall not have been licensed prior to the passage of this act, shall hereafter be licensed to sell strong and spirituous liquors, wines, ale or beer, in any building not used for hotel purposes and. for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue and within 200 feet of a building used exclusively as a church or school-house. The measurements shall be taken from the nearest entrance of the building used for such church or schoolhouse to the centre of the nearest entrance of the place for which an application for license has been made.”

This reason did not involve the exercise of any discretion on the part of the respondents. The statute was an express prohibition, and the respondents were not authorized to grant the relators a license at all if the facts brought the case within the terms of the statute. It appears that the measurement provided for by the statute was in this case much less than 200 feet. It was only about 66 feet. ' It is said, however, that the relators then offered to entirely close up the entrance to- their store in question. We do not think it was within the province of the respondents to make any bargain with the relators upon this subject. The respondents were under obligation to act upon the application when made, and the facts as they then existed. The entrance was hot then closed, hut was open, and remained so, after the application was made, and the license was refused. The license could not have been granted upon the condition that the entrance should he closed, and there was no intention to close it except on the condition that the license was granted. The policy of the statute would seem to prohibit the construction of the statute claimed by the relators. Accessibility was not everything aimed at. It was the vicinity, the neighborhood, the surroundings of the school which the statute was enacted to protect. The legislature may well have been unwilling to leave the matter of access in the hands of the relators. The relators may have locked the door, and stipulated to keep it so, but what was the guaranty that they would keep it so? If it he said that they would subj ect themselves to a revocation of the license if they failed to keep the door locked, would the legislature he willing to trust the matter to the vigilance of the hoard? As long as the door was there, though locked, an element of uncertainty would be introduced. It should he held there was an entrance so long as it was there as a means of access.

Again, it is said that the entrance to which the measurement should have been made was the entrance to the rooms and floor of the store where the sale of liquors was actually to he made, and that such sales were to he made in the rooms upon the fifth floor of the building, and it was more than 200 feet from the schoolhouse1 to the rooms upon that floor. Ro such construction can he placed upon this statute. The intention is plain. The prohibition is against the selling of liquors in any part of the building which is under the same control, where the nearest entrance to such part of the building fronts on the street within 200 feet of the schoolhouse. If the party applying for the license had control of hut a part of the building, the entrance referred to in the statute as the nearest would be an entrance into such part of the building from the street, though it might not be the nearest entrance to some other part of the building occupied by some other party. But where, as here, the whole building was under the control of one firm, who were carrying on therein one general business, the measurement must be to the nearest entrance from the street to any part of the building. It will not do to say that a license could be properly granted for a building in close proximity to a schoolhouse provided that the sale of liquors was confined to some room or part of the building which was at least 200 feet from the entrance to the sehoolhoqse. This principle here determined was decided under a similar statute of Massachusetts in Com. v. Jones, 142 Mass. 573. We conclude that the license was properly refused for the first reason assigned by the respondents, and it is unnecesary, therf ore, to consider or discuss the remaining reason assigned.

The writ was properly quashed, and the order appealed from should be affirmed, with costs.

All concur.


author: MERWIN, J.

text:
    Henry W. Hayden, App'lt, v. Catharine T. R. Mathews et al., Resp'ts.
    (Supreme Court, Appellate Division, Third Department,
    Filed April 14, 1896.)
    1. Recovery oe—Real estate—Title.
    In an action for an injunction to prevent trespasses to land, the plaintiff must stand upon his own title.
    2. Estoppel—Equitable.
    The declarations and acts of an owner of land, with the boundaries of which he is unfamiliar, cannot operate as an estoppel.
    3. Costs—Extra allowance.
    Where the ownership of land is the thing in issue, in an action of trespass, its value is the basis for computing an extra allowance of cost.
    4. Same.
    This value, if it does not appear at the trial, may be shown by affidavit.
    Appeal from a judgment in favor of defendants, dismissing the complaint.
    Henry W. Hayden, in pro. per.; Frost & Manser, for resp’ts.
   MERWIN, J.

The plaintiff is the owner of certain premises on the westerly shore of Lake George, at Caldwell, in Warren county, known as the “Mansion-House Property.” The defendants own certain other premises in the same place, known as the “Fish-Pond Lot.” The plaintiff claims, as a part of his property on the southern side, about four acres, which are uninclosed, and upon which there are some trees and shrubbery, and through which a small stream runs into the lake. There is now, or has been at some time, on this four acres, a fish pond. The defendants claim that this four acre piece is within the boundaries of their property. The present action was commenced on June 29, 1894, against Catharine E. Van Cortlandt, who then owned the fish-pond lot. She died in January, 1895, and the present defendants have been substituted, as her heirs and devisees. In the complaint it is alleged that the southern boundary of plaintiff’s property includes the four acres in question; that the defendant claims that her northern boundary includes the premises, and threatens to cut down the shrubbery and trees, and has committed acts of trespass upon the premises, and threatens to sell and convey the premises. Belief is asked, that in order to prevent irreparable injury to the premises, and multiplicity of actions of trespass, and a sale of the land by defendants, the defendants be enjoined from conveying the same, and from entering upon or using the premises, or cutting the trees or shrubbery, or exercising any acts of ownership, and that the plaintiff’s boundary line on the south be established as he claims it to he. The defendants admit the acts of ownership, and claim that the original def endant, and they as her successors in interest, own the property. Both properties, including the disputed territory, were owned by William Caldwell, who died on April 1, 1848. He left a will, after-wards duly proved, which was dated March 29, 1841. In this there was a devise to Eliza MeGillis for life, with remainder upon her death to her lawful'issue, of property described as follows: “Also, my mansion house, in the town of Caldwell, Warren county, and state aforesaid, with the grounds attached,—about thirty acres,—now occupied by my agent, Seth C. Baldwin.” The balence of the lands of the testator in Warren county was devised, one-third in fee to Catharine E. Van Cortlandt, oriethird in fee to Helen L. Parmlee, and the other third to Eliza MeGillis for life, with remaider to her lawful issue. The ownership of plaintiff is under the specific devise above quoted. In 1851 a partition suit was brought in Albany county, which included all the property in Warren county of which William Cald-. well died seised, excepting the mansion-house property. In this suit there was set apart to Catharine E. Van Cortlandt and Helen L. Parmlee the lot “known as the ‘Fish-Pond Lot.’ ” Boundaries were given, and on the north the boundary was by lot Ho. 15 Kennedy’s patent.” At the close of the description is the expression, “as the said premises are now leased to, and occupied by, John F. Sherrill.” The defendants claim under this allotment. It was found and decided by the special term that the premises in dispute are not, and never were, owned by or in possession of the plaintiff, and are not now, and never were, embraced within, oí part of, the mansion-house property, which the plaintiff owns. The plaintiff challenges the correctness of this finding and conclusion.

The plaintiff must stand upon his own title. Wallace v. Swinton, 64 N. Y. 188. His claim, therefore, to the property in question, must depend upon whether it is included in the description in the devise of the mansion-house, “with the grounds attached,— about thirty acres,—now occupied by my agent, Seth C. Baldwin.” It was, in effect, found by the special term, upon sufficient evidence, that the property in dispute was not occupied by Mr. Baldwin as a part of the mansion-house property. It was not inclosed, and was separated from the grounds of the mansion house by a.fence running along the north side of the four acres, from the lake to a highway. It was shown on the part of the plaintiff that Mr. Baldwin at divers times ordered away boys who were bathing on the beach in front of the disputed property. As Baldwin was the agent of the owner of all the property, this has not much significance on the question as to what was deemed to belong to the mansion-house property. On the part of the defendants, it was shown that Mr. Sherrill—who had in 1842, from Mr. Caldwell, a lease of the fish-pond lot—allowed his cattle to pasture up to the fence on the noth side of the disputed lot. Hor can it be reasonably said, upon the evidence here, thal the disputed territory was a part of “the grounds attached” to the mansion house. It was not inclosed with the mansion house, or shown to have been used in connection with it. The statement as to quantity, “about thirty acres,” does not furnish any particular help. It is shown that the mansion-house grounds, exclusive of the disputed territory, and exclusive of a highway which crosses them, contain 28.51 acres. Including the highway there are 31.07 acres.

It is argued on the part of the plaintiff that the fish-pond lot, as set off by the commissioners of partition in 1851, did not include the disputed land. The north boundary of the lot so set off was stated, “Lot No. 15, Kennedy’s patent.” Concededly, this was a mistake, as the south line of lot No. 15 was in fact further south than the fish-pond extended. It is very difficult to say where the commissioners in partition supposed the lot line was located. It is argued that they supposed that the south line of the lot was coincident with the north line of the village, and so meant to place the fish-pond lot entirely within the village, and therefore it would not include the disputed land. Suppose this to be so; it would not add to land of plaintiff, or his predecessors in interest, beyond what was given them by the description in the devise.

It is argued that Catharine E. Van Cortlandt, by her declarations and acts after the partition, indicated her belief that her north line did not extend far enough north to include the dis-j>uted land. She was not familiar with the lot lines. The principle of estoppel did not apply. Masten v. Olcott, 101 N. Y. 152. It is quite clear that she never understandingly admitted that her title did not cover the land in question. The fact that she would not give the plaintiff a copy of the map made for her by her attorney, which she claimed was not correct, and concededly was not so in some respects, is not very material. The plaintiff had no d¡aim on the map, and it was not a part of his title. It seems to me very clear that no good reason is apparent, on the law or the facts, for disturbing the conclusion of the special term that the description of the property in the devise under which plaintiff holds did not include the property in question. The plaintiff, theef ore, did not make out a cause of action, and the complaint was properly dismissed.

It is claimed by the plaintiff that the o^der for an extra allowance was improper, upon the g-round that, this being a suit in equity for an injunction, and the value of the land not being alleged in the complaint, or proved at the trial, there was nothing upon which to base an allowance. The motion was not made at the trial, but afterwards, at special term, and was based on the pleadings, the testimony given at the trial, and affidavits which showed, among other things, the value of the land in controversy. The basis of an allowance under section 3253 was “the value of the •subject-matter involved.” In Conaughty v. Bank, 92 N. Y. 401, 404, it is said upon this subject that “the pleadings furnish the sole evidence as to'what was the subj ect-matter involved.” In the present case it appears clearly from the pleadings, as well as from the proceedings on the trial, that the subject-matter involved was the four acres which both parties claim to own. Its ownership was the thing in issue. Its value is the basis for computing an allowance, though the action, in some view, may be for trespass. Warren v. Buckley, 2 Abb. N. C. 323. This value, if it does not appear at the trial, may, I think, be shown by affidavit. In the Conaughty Case (see 28 Hun, 374) the proof of value was by affidavit, and the objection was not to the manner of the proof, but that the necessary fact was not shown. The Code does not prescribe the manner in which the value shall be determined.' In Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252, 255; 52 St. Rep. 334, it is said of allowances under section 3253:

“Whether an allowance shall be made in cases coming within the section is a question which arises after the trial and determination of the issues. The court may determine the question upon the facts disclosed on th.e trial, or brought to> its attention by affidavits.”

In that case the pleadings contained the only information as to value before the court, and it was said (page 257, 138 N. Y., and 52 St. Rep. 334):

“If extrinsic proof had been given, a different question would have been presented. * * * If the value was not shown, and no evidence, admission, or proof given from which the court could arrive at any conclusion as to1 value, no allowance could be made.” ' ' . . .

. . . The clear inference is that proof by affidavit is proper, and that is the practice. ¡No other question is made as to the extra allowance. It follows that the judgment and order should he affirmed. Judgment and order affirmed, with costs.

All concur, except HERRICK, J., dissenting.


author: PATTERSON, J.

text:
    People ex rel. Fred. G. Einsfeld, App'lt, v. Joseph Murray et al., Resp'ts.
    (Supreme Court, Appellate Division, First Department,
    Filed April 24, 1896.)
    1. Excise—Constitutional law.
    Chapter 112 of 1896 is primarily and essentially an exercise of the police power of the state.
    2. Same.
    Taxation is but a incident thereto.
    3. Same.
    The fourteenth amendment to the Federal Constitution does not impair the police power of the state.
    4. Same.
    In undertaking to secure the safety, welfare or protection of the people, by the enactment of a general law, which shall control the whole traffic in each and every part of the state, it may recognize local diffierences and notice and make special provisions therefor.
    5. Same.
    The want of uniformity of punishment for the violation of the Penal provisions of the act does not render it unconstitutional.
    6. Same.
    The public moneys and property mentioned and referred to in section 20, art. 3 of state constitution are those belonging to the state.
    7. Same.
    The two-thirds of the net product of the taxes, fines and penalties referred to in the thirteenth section of chapter 112 of 1896 are not in any sense state moneys.
    8. Same.
    This act does not violate section 2, art. 12 of the constitution.
    9. Same.
    A provision in a general law cannot be said to be a special state law simply because it makes some provision with regard to the inhabitants of the state, different from that established for other portions of the state, unless it contains something relating to the government of that city separate and distinct from the general „ provision relating to the government of the state.
    10. Same.
    The statute is not a special state law as to cities of the first class.
    Appeal from on order dismissing a writ of certiorari.
    J. H. Choate and S. Untermyer, for app’lt; The Attorney General and Julius M. Mayer, for resp’ts.
   PATTERSON, J.

On the 23d of March, 1896, the relator application to the respondents, commissioners of excise of the city of New York, for a license to sell wines and liquors at retail in certain designated premises in that city for a period of one year. The commissioners rejected the application, and refused to grant the license, on the sole ground of the want of power, arising from the passage of an act of the legislature approved March 23, 1896, known as the “Liquor Tax Law,” under the provisions of which they alleged they could not grant the relator a license for a term expiring later than April 30,1896. Thereupon application was made to the supreme court for a writ of certiorari to review the action of the commissioners, which, being granted,, the respondents made return setting forth their proceedings, and stating, in substance, the ground of their refusal as above mentioned. On the coming in of., the return the relator contended before the court that the refusal of the respondents to grant the license applied for was based upon an untenable ground, for the-reason that the act approved March 23, 1896 (chapter 112, Laws-1896), is unconstitutional and void, and as a consequence the license laws in operation immediately before its passage remained in force and effect. It was held by the court at special term that the act of 1896 is valid, and was passed in conformity with the constitution of the United States and of the state of New York, and that the writ must be dismissed. From the order, and what is called a judgment embodying that decision, this appeal is taken.

The subject presented for our consideration on the appeal is-that of the constitutionality of the law in question. It has been severally arraigned in argument as offending against justice and reason. It may be unjust, unwise, oppressive, and odious as the-relator claims, but all that does not help in the solution of the question before us, and we have no opinion to express on that subject. The final word concerning it has been spoken by the court-, of appeals. In Bertholf v. O’Reilly, 74 N. Y. 516, it is said:

“No law can be pronounced invalid for the reason, simply, that it violates our notions of justice, is oppressive and unfair in its-operation, or because, in the opinion of some or all of the citizens of the state, it is not-justified by public necessity, or designed to-promote the public welfare. We repeat, if it violates no constitutional provision, it is valid, and must be obeyed. The remedy for unjust or unwise legislation, not obnoxious to constitutional objections, is to be found in a change by the people of their representatives according to the methods provided by the constitution.”1'

Much of the argument against the validitv of this law proceeds upon the assumption that it is fundamentally and radically a tax law. That being conceded, many of the contentions of the learned counsel for the relator might prevail. If the sole or main purpose of the enactment is merely to raise revenue by taxation for state purposes, there are features contained in this bill o-f inequality and diversity in the imposition of taxes and the infliction of penalties that might well lead to its complete condemnation. Although there is no express provision in the constitution of the state of New York to that effect, yet it may be that taxes, to be valid, must be uniform; that, were it otherwise, the property of the citizen subjected to the arbitrary imposition of a discriminating tax might be practically confiscated, and there-fort taken without due process of law, or persons of the same class be deprived of the equal protection of the laws secured by the constitution of the United States. The power of the state to tax may be limitless in extent, but ought not to be exercised, among those similarly situated, unequally, and to the advantage of some and the detriment of others. But these and kindred suggestions seem to have no real place in the discussion connected with the particular enactment now before us. Although, by its short title, it is called the “Liquor Tax Law,” and although it designates the money paid for the privilege of dealing or trading in liquors in quantities of less than five gallons a “tax,” yet the whole scope; purpose, and intent of the law is, as its fuller title expresses, “an act in relation to the traffic in liquors, and for the taxation and regulation of the same, 'and to provide for local option.” The body of the act conforms to the objects stated in the title. A system regulating the traffic in and through the state is created and instituted. It is primarily and essentially an exercise of the police power of the state over a particular trade or business which from early times has been made the subject of state legislation, the general history and drift of which may be found, by those interested in the matter, in the opinion of Judge. Wright in the important case of Board v. Barrie, 34 N. Y. 657. That such excise legislation is peculiarly within the police power is recognized by all courts of authority, and it would seem no longer open to dispute. See the authorities collected in note 11, Am. & Eng. Enc. Law, p. 583. The fourteenth amendment to the constitution of the United States does not impair the police power of the state. Mugler v. Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 id. 678; Barbier v. Connolly, 113 id. 27. It is within the competency of the state to interdict all traffic in liquors within its boundaries. That is admitted. The legislature, having such an extreme power, may exercise the lesser one of regulating the traffic. It may make such regulations, and put such trammels upon the traffic, as seem to be expedient or necessary to the safety, the welfare, or the protection of the people. Bertholf v. O’Reilly, supra. In undertaking to do so by the enactment of a general law which shall control the whole traffic in each and every part of the state, it may recognize local differences and needs, and make special provision therefor. If ‘diversity arises th.erefrom in tire application to particular localities of any of the incidents of the law. the legislature is not incompetent to authorize that diversity. It is part of the general scheme. It arises from the necessity of treating local conditions and sitúations as they are found, and from the recognition of patent facts, such as that there are striking differences between the retail traffic in liquor in a great metropolis and in a remote rural neighborhood, or even in separate parts of the same municipality, and that disproportion must of necessity be allowed in the impost exacted for the privilege of engaging in such traffic in each of such places. All such provisions come within the one general act as parts of one general excise.system, and the regulation thereof..

That the purpose of the act is not primarily to raise revenue from taxation is apparent from other considerations. Leaving out of the discussion altogether the pertinent question whether such taxes as those imposed by the act under consideration are' in reality anything more than license fees, and confining ourselves to what is deducible from the structure and provisions of the act itself, we find that a third and conspicuous and all-important matter is provided for, and that is the local option feature, which plays so prominent a part in the legislation that it is made one of the cardinal elements proclaimed in the title of the act. The system created and established by this act is by the express terms thereof made to supersede and take the place of all prior existing excise laws or systems throughout the whole state. It establishes an entirely new system, bringing under state control that which was theretofore under local, municipal, or community jurisdictions and administration. The right to traffic in liquor is not limited to individuals, except so far as certain disqualifications are designated in the act; but no one is permitted to sell at retail or deal in liquor in less than certain quantities without state permission first obtained, to be evidenced by the possession of a certificate which takes the place of a license, and for which dues called “taxes” are to be paid. Taxation is but an incident; but one, and that not the chief, although a necessary, element of the legislation. Regulation of the traffic is the fundamental purpose of the law. The taxes are not levied upon persons nor upon property, for a license is not properly except in a qualified sense, and as it is made so by the terms or operation of a statute; and the taxes are, and are declared to be “excise taxes upon the business of trafficking in liquor,” and hence a mere incident to the regulation of that business. It is all within the police power of the state, exercised for the supposed general welfare; and the power to regulate must of necessity include the power to license oi tax. Ror does the want of uniformity of punishment for the violation of the penal provisions of the act render it unconstitutional. The same offense, punishable under a general law, may be so punished with more severity in one part of the state than in another (Williams v. People, 24 N. Y. 405; In re Bayard, 25 Hun, 546), and that may constitute a penal offense in one part of the state that is not punishable in another. People v. Havnor, 1 App. Div. 459; affirmed (N. Y. App.), 43 N. E. 541.

Regarding, as we do, this act as one constituting inherently and 'essentially an exercise of the police power of the state, we are brought to the consideration of the particular objections taken to it, as violating the provisions of the constitution of the state of ¡New York.

Eirst. The position is taken by the relator that the law is unconstitutional, because it violates section 20 of article 3 of the constitution of the state, which provides that the assent of two-tliirds of the members elected to both branches of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The act of 1896 was passed by a three-fifths vote only. In section 13 of the act it is provided that all taxes, fines, and penalties (except those imposed upon or gathered from the traffic in liquors on railroad cars, steamboats, etc) under the act “‘in counties containing a city of the first class shall be paid to the special deputy commissioner for such county, and in all other counties to the county treasurer of the county in which the traffic is carried on, and one-third of the revenue resulting from taxes, fines and penalties in the provisions of this act, less the amount for collecting the same, shall be paid by the county treasurer and by the several deputy commissioners within ten days from the receipt thereof to'the treasurer of the state of New York, to the credit of the general fund, as a part of the general tax revenue of the state, and shall be appropriated to the payment of the current general expenses of the state, and the remaining two-thirds thereof, less the amount allowed for collecting the same, shall belong to the town or city in which the traffic was carried on from which the revenues were received, and shall be paid by the county treasurer of such county, and by the special deputy commissioners to the supervisor of such town, or to the treasurer or fiscal officer of such city; and such revenues shall be appropriated and expended by such town or city, in such manner as is now or may hereafter be provided by law.” The real question in connection with this contention of the relator is whether the two-thirds of the product mentioned above is public money within the meaning of the constitution. We think, clearly, it is not. The public moneys and property therein mentioned and referred to are those belonging to the state. Prohibited appropriation is of such moneys only. In Board v. Allen, 99 N. Y. 532, it was claimed that chapter 213 of the Laws of 1879, relating to certain county treasurers and their compensation, wa=. unconstitutional, because it appropriated public moneys for local purposes; but it was held that the act did not apply, because the appropriation was not of state moneys. The accuracy of the definition of “public" money” as that belonging to the state can scarcely be doubted. It seems to us indisputable that two-thirds of the net product of the taxes, fines, and penalties referred to in the thirteenth section of the act under consideration could not be regarded in any sense as state moneys. They are not so designated in the act. On the contrary, they are expressly and specifically declared “to belong to the town or cit in which the traffic is carried on.” The anterior rights of localities as theretofore existing were done away with. The act with regard to the two-thirds of the revenue simply recognizes that there were such rights, and professes to provide anew for them with some measure of justice. It thus declares that some part, at least, of that which the localities had been accustomed to receive directly shall come to them and be theirs. That is not an appropriation of the moneys of the state, but a devotion to the component parts of the state of what was, esteemed to be their just shares of the product of a particular revenue. At no period of time do the two-thirds belong to the state. From the beginning they are separated, and the state share and the share of the town or city are kept apart in ownership. There seems to have been scrupulous .-care taken in constituting and maintaining that separate ownership. The two-thirds part does not become money of the state simply because the state’s agent collects it through and by means of the state machinery. The mere method of the collection or realization of the amounts of the taxes, fines, and penalties cannot govern the matter, and hence we conclude that the two-thirds referred to, not being state money, the constitutional provision does not apply.

_ _ Second. It is further objected by the relator that the act under consideration classifies cities in a different way that the constitution does, and that for that reason it violates section 2 of article 12 of the constitution. The objection proceeds, we think, upon a misapprehension of the object of that section. The circumstances which led up to the adoption of it are well known. It had not been unusual for laws to-be p-assed seriously affecting the local interests and property of cities without notice to' the authorities of such cities, and without any opportunity for them or the inhabitants to be heard upon the subject. That had grown to be a crying evil, and the provision of the constitution was intended to remedy it. But it must be noticed that this classification has reference only to laws relating to the property, affairs, or government of cities, and it is only with reference to that kind of laws that the classification is effectual or material. The act of 1896, in question, is not one th-at can be said to relate to either of those things. As we have before stated, it is a general law in the fullest sense of that word, having regard to the regulation of the liquor traffic throughout the whole state, and contains such particular provisions with reference to special localities as the conditions of those localities seem to require. In no sense does it relate to the property, affairs, or government of the city. • It is purely a matter of state government, and is a general law upon that subject, and is not, as we think, at all within the povisions of the constitution. A provision in a,general law cannot be said to be a special city law simply because it makes some provision with regard to the inhabitants of the city, different from that established for other portions of the state, unless it contains something relating to the government of that city separate and disinot from the general provision relating to the government of the state. This law contains no such provision. The nearest approach to one is that it abolishes the existing excise commissioners, but that abolition results from the total extinction of an entire excise system, and the creation of another and different one; one including the whole state and embracing in a single scheme everything necessary to the establishment and operation of a complete system, even to the varying details required- by different conditions in different localities. Every existing excise board or commission throughout the whole •state is abolished. It is no more a special city law because it abolishes the office of excise commissioner of the city of New York than would be a law abolishing the office of coroner. Ho one city or town is interested in the general plan more than any other. It is a matter of state, ad not municipal, governmental policy, and it •could never have been contemplated that the voice of cities or municipal bodies, as such, should be made potential in legislation of a general character applying to the state as a whole, and not specifically or exclusively affecting the interests, property, or internal governmental affairs of a municipality.

Third. The further contention is made that the law should have been submitted to the mayors of cities of the first class, as provided by the section of the constitution above referred to. Much of what we have said with reference to the objection last considered applies equally to this, and it is unnecessary to repeat it. The lawps not a special city law as to cities of the first class. It does not relate to the government, property, or affairs of a particular ■city, and was not such a measure as, under the constitution, should have been submitted in the manner claimed by the relator’s •counsel.

The order and final adjudication appealed from must be affirmed, with costs. All concur.