author: Boardman, J.:

text:
    THE PEOPLE ex rel. CHAUNCEY KILMER and others v. PATRICK McDONALD, A. J. CHERRITREE and others.

      Certiorari—when not allowed — Power of legislature to open streets — Const., art. 10, §3 — chap. 633 of 1870; chaps. 393, 500, of 1873.
    The writ of certiorari should not he granted upon the application of two or three out of a large number of persons, interested in like manner in assessments for local improvements, especially where adequate relief is afforded in proceedings at law.
    The legislature has power to locate and open a highway without the instrumentality of highway commissioners, and to provide for the apportionment and collection of the expenses thereof.
    Chapter 623 of 1870, as amended by chapter 293 of 1872, laying out Union avenue in the village of Saratoga Springs, and providing for the opening and working of the same, and for defraying the costs thereof, is constitutional and valid.
    By the said act, the costs and expenses of the improvement are to be assessed against the individual owners, and not against their land.
    Reargument upon a certiorari to the commissioners for appraisal of damages, etc,, upon opening and laying out Union avenue, in Saratoga Springs, and to the town clerk, for the purpose of reviewing such proceedings.
    This case' has already been decided by this court, the decision being reported in 9 Supreme Court Reports (2 Hun), page 70. Subsequently a reargument was ordered. (Id., 601.)

      A. Pond, for the relators.

      P. H. Cowen and L. B. Pike, for the defendants.
   Boardman, J.:

The relators claim that the proceedings by which they have been assessed for supposed benefits to their several pieces of property, arising from the opening of Union avenue, in the village of Sara-toga Springs, are void, and should be reversed and set aside for the following reasons:

First. The original act of 1870 is unconstitutional, in that it appoints persons to discharge the duties of commissioners of highways for said village, in violation of section 2, article 10, of the Constitution of this State.

Second. That the acts of the defendants, commissioners of appraisal under the law of 1870, in making their assessments, are not in conformity thereto, and are consequently void; and hence the taxes imposed upon the relators are illegal, and should be set aside.

Third. That the acts of 1870, and the acts amendatory thereof, are void for vagueness and inconsistency.

Fourth. That the act of 1874 is ineffectual to render valid the prior void acts of the legislature.

Fifth. That these proceedings for review were begun before the passage of the act of 1874, and are therefore not to be affected by it.

And, first, it is proper to say, that if these propositions are true, if the legislative acts were unconstitutional and invalid, or if the commissioners have not followed the authority given them by these acts, so as to impose legal and valid taxes or assessments, the relators had abundant protection at law, without resort to the writ of certiorari. The allowance of the writ on behalf of two or three out of a large number of persons interested, in like manner, in assessments and taxes for local improvements or the public benefit, should be discountenanced, especially where adequate relief is afforded in proceedings at law.

First. Is the law of 1870 unconstitutional ? The commissioners of highways of any town have the right to open highways in the manner prescribed by law. The legislature has the same right, but in a far more unrestricted form. The legislature is the fountain of all power, subject only to the Constitution. The legislature may, therefore, by its own • inherent power, locate a highway and provide for paying the damages and opening and working it, without the instrumentality of highway commissioners. It may also provide for the apportionment of the expenses, and for the manner of collection, This I understand has been done, as to Union avenue in the village of Saratoga Springs, by the acts of 1870 and 1872. By section 2, Laws of 1870, page 1442, it is enacted that Union avenue shall be 100 feet wide. By the act of 1872, Union avenue is located, its width is established at 100 feet, the manner of widening to that extent fixed and prescribed, and how compensation shall be made and benefits assessed. The district within which real estate may be assessed for benefits, is defined by metes and bounds. So far then as Union avenue is provided for by said acts, I think it cannot be justly claimed that they •are unconstitutional. The legislature has described and laid out the street, and ordered it opened, and provided ways and means therefor. Even if those acts could have been done by the commissioners of highways of the village, they could equally have been done by the sovereign power of the State, as may be seen by the cases cited above. But it is not to be conceded that the commissioners of highways could have laid out this street, of the width, and in the manner provided by the legislature. In all these respects it was in excess of their power under the statutes. It is not necessary to consider whether all the powers given to the special commissioners by these acts over the streets of Saratoga Springs, were unconstitutional. It is sufficient if they have acted within constitutional and legal limits in the matters before us for review. There is nothing in the act or purpose indicating an attempt to evade a constitutional right. It was a ease where the usual authorities could not accomplish the purpose. In these respects the case is distinguished from People ex rel. Bolton v. Albertson

For the reasons stated, I think the acts of 1810 and 1812, laying out Union avenue, and providing for the opening and working of it, and for defraying the costs thereof, were good and valid laws, and did not infringe upon section 2 of article 10 of the Constitution.

Second. A much more formidable difficulty arises from the manner in which the authority conferred upon the commissioners of appraisal was exercised by them. The difficulty exists in some degree by the obscurity of the return as to the conduct of the commissioners.. Undoubtedly the statute must be substantially complied with, or the tax will be invalid.

What is a substantial compliance, depends upon the construction to be given to the acts of 1810 and 1812. When this case was last before this court, Mr. Justice Miller thought that the report of the commissioners of appraisal was fatally defective, by reason of the omission of descriptions of the particular parcels of land assessed. But as the return is made, and upon the papers presented, I am inclined to doubt his conclusion. By the thirteenth section, of act of 1810, the commissioners are to make their report, stating the quantity of land taken for such avenue and its value, with the names of the persons and the amount of damages awarded, and. also a general description of all lands and property assessed for benefits, with the names of the owners, and the amount assessed against each. It must be recollected that the first report is lost, as appears by the return. The commissioners, however, say that such first report showed a strict compliance with the law. By the second or final report, such assessments appear to be in accordance with the act, if the maps returned with the papers constituted a part thereof. Whether they or either of them were part of said second report is not clear from the return, though I think it should be assumed that both were. They are the result of surveys made for this specific object, and were used for the purpose of appraisal and equalization. Assuming that to be true, the report, containing schedules A and B, with the two maps, contains a remarkably full and explicit description of the property taken for the avenue; its value; the awards to each owner for compensation; the names of the owners; also, not only a “general” but a particular “description” of each lot of land or property assessed for benefits, with the names of the owners and the amounts assessed against each on account of such property. Upon such assumption there was a complete compliance with the law in the assessment and second report. I think this conclusion would be equally justified if either map accompanied the report. But if no map was filed with the reports, corresponding with those presented to the court, the assessment and report did not comply with the law. I have said that the maps will be presumed to have been integral parts of the proceedings and reports, because otherwise they have no business here, and should have been stricken out of the return. The return to a common-law certiorari should bring up the record of proceedings of the inferior tribunal, and nothing more. It should afiirmatively appear therefrom that such proceedings are void. If it is left doubtful or uncertain whether the tribunal has acquired and retained jurisdiction, and pursued it properly, and any fair construction will sustain the action, it will be sustained.

Third. It is urged by the relators that the commissioners of appraisal have assessed the amounts against the individuals instead of the lands, and that such error is fatal. If my previous conclusion be correct, there is no difficulty in sustaining an assessment against the land owners instead of the land. By the act of 1870, the commissioners are to ascertain “ the names of the owners, and the amount assessed against eachP Section 16 provides that the town clerk shall transmit to the board of supervisors the names of all persons assessed for benefits under this act, and the amount assessed to each. * * * The board of supervisors shall also cause the names of all persons returned by the town clerk of said town as assessed for benefits, with the amount assessed against each, to be inserted in the assessment roll of said town; the amount so assessed to -be levied and collected as other town taxes, and paid,” etc.

By the act of 1872, section 1 of the original act is amended, but the remainder of the act of 1870 remains the same, and is applicable to such amended first section. In the section, as amended, it is provided that compensation shall' be made for land taken, and such compensation and the resulting benefit shall be ascertained and assessed in the manner provided in said act, etc. These provisions leave no doubt in my mind that the legislature intended the tax should be personal. It follows necessarily from the fact that it is to be levied and collected as other town taxes. It becomes a tax against the person on account or by reason of the property owned by such person. '

In the view I have taken, it is unnecessary to examine whether such a tax could have been ascertained and assessed against these relators legally, without the aid and existence of these maps as a necessary part of the proceedings and report.

These considerations lead to an affirmance of the proceedings and assessments, without reference to the act of 1874, by which the proceedings of the commissioners of construction and the commissioners of appraisal are legalized. Such act is an implied expression of legislative opinion that some of those acts needed legalizing, and that they were, in fact, invalid by reason of some defect of jurisdiction, or insufficiency in the exercise thereof. In my deference to the wisdom of the legislature, I began the investigation of this case in that belief. A careful and somewhat laborious o examination has led me to a different result, and I now think such proceedings can fairly be sustained upon the merits, without a resort to the act of 1874. I should, however, do injustice to my own feelings if I did not deprecate and condemn this kind of special legislation for local purposes. It is to be hoped that such legislative interference with municipal corporations may henceforth cease. Laws of this character are usually urged by no public influence or interest, nor enacted by any proper intelligence or knowledge of the legislature of the wants of the community to be affected.

The proceedings and assessments brought before us by this writ should be affirmed, with costs against the relators personally.

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

Ordered accordingly.

      Laws of 1870, p. 1442.

       Matter of Mt. Morris Square, 2 Hill, 16; 25 Wend., 693; Case of Fifty-first Street, 3 Abb. Pr., 232; Matter of Eightieth Street, 17 id., 324.

       Const., art. 1, §§ 7, 11; Clark v. Miller, 54 N. Y., 528; People ex rel. McLean v. Flagg, 46 id., 401.

         Litchfield v. Vernon, 41 N. Y., 123.

       Page 1166.

       55 N. Y., 50.

       Westfall v. Preston, 49 N. Y., 349.

         4 N. Y. S. C., 290.

       Page 1446, §18.

      Page 1166.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES WEIR, Respondent, v. GERTRUDE GROAT, Appellant.

      Married woman —•contract by—intention to chan'ge the same upon Tier separate estate.

    Where a contract made by a married woman is not for the benefit of her separate estate, she is not liable thereon unless the intention to charge the same be expressed in the contract.
    Appeal from a judgment for the plaintiff, entered on the report of a referee.
    This judgment was obtained for the value of groceries and provisions, sold by the plaintiff to the defendant. She is a married woman, having a separate estate, and living with her husband and children, for whom the husband ordinarily provides. The husband had been buying on credit of plaintiff, until the plaintiff would not trust him any longer. He then saw the defendant at her house, and the following contract was made between them: “ She said, would I give her a book ; she wanted to trade on a book; I told her, yes, I would give her a book if she would be responsible; she said she would be responsible; I told her I would not trust her husband, and she said she would not ask me to trust him, but that everything that was got she would be responsible for.” At the same time she said she owned “ that property,” meaning the house and lot where they lived. After the debt was made she promised to pay it. This is the only evidence of an intent to charge her separate estate with the payment of this debt. On this evidence the referee found as a fact, that she agreed to pay for the same out of her separate estate. From the judgment against her she appeals.

      R. A. Parmenter and Geo. Day, for the appellant.
    The plaintiff must show affirmatively that the debt was contracted by the defendant either for the purpose of carrying on a separate trade or business, or for her own exclusive benefit upon the credit of her separate estate, or that the intention to charge her separate estate was expressed in the contract itself, or that the consideration was one going to the direct benefit of her separate estate. (Yale v. Dederer, 22 N. Y., 460; White, Exrx., v. McNett, 33 id., 371; Corn Exchange v. Babcock, 42 id., 613; Ballin v. Dillaye, 37 id., 35 ; Hallock v. De Munn, 2 N. Y. S. C., 350; Deck v. Johnson, 2 Keyes, 348; Smith v. Allen, 1 Lans., 101; Scmidt v. Costa, 3 Abb. [N. S.], 188 ; Coakley v. Chamberlin, Ex., etc., 8 id., 37, 44; Demott v. McMullen, id., 337; Valentine v. Lloyd, 4 id., 371.)

      Irving Browne and Albert Smith, for the respondent,
    cited Maxon v. Scott (55 N. Y., 247); Yale v. Dederer (22 id., 456, 460); Corn Ex. Ins. Co. v. Babcock (42 id., 644); Kelty v. Long (4 N. Y. S. C., 163); Owen v. Cawley (42 Barb., 105); Jacques v. M. E. Church (17 Johns., 581); Buckley v. Wells (33 N. Y., 518); Demott v. McMullen (8 Abb. [N. S.], 335); Robinson v. Rivers (9 id., 144); Valentine v. Loyds (4 id., 371); Ledlie v. Vrooman (41 Barb., 109); Gardner v. Gardner (7 Paige, 112); Quassaic Nat. Bank v. Waddell (8 S. C., 125).
   Boardman, J.:

The case of Baken v. Harder, decided at this term, presents the same legal question, upon the same state of facts, and is decisive. It cannot be claimed that this debt benefited her separate estate, and thereby became a charge. It was the husband’s duty to support the family, and he was the person benefited by the property bought. In order to charge her estate, therefore, she must express such intention in her contract. This she has not done.

The respondent labors under 'the false idea, that such intention may be inferred from her simple promise to pay. That would destroy the only distinction now remaining between the contracts of a married and unmarried female. No case goes to that extent. In Maxon v. Scott, the court says : “ The charge may be made by an oral contract made upon a good consideration expressing such am, intention, equally as though the contract was reduced to writing.” It must be expressed. In Kelty v. Long, and Owen v. Cawley, the property was bought for the benefit of the separate estate, and for ■ that reason the wife was held liable. The wife may, if she pleases, charge her property with any debt, bnt it is only when it benefits her estate that the intent to charge it thereon becomes unnecessary. In all other cases such intent to charge must he a part of the contract.

The authorities to sustain these principles are too familiar to need citation. The referee therefore erred in 'finding from the evi- , dence in the case, an agreement to bind and charge her separate estate, made by the defendant in connection with this debt. For this reason the judgment should be reversed, and a new trial be granted, costs to abide the event.

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

Judgment reversed and new trial granted, costs to abide event.

       See-p.

      55 N. Y., 251.

       4 N. Y. S. C., 163; S. C., 1 Hun, 714.

         42 Barb., 105.


text:
    In the Matter of the Claim or JOHN WELLER, Respondent, v. MARION WELLER and another, Executrix and Executor, etc., Appellants.

      Executor—claim, of, against estate—2 JR. 8., 88, § 88—reference—MU of particulars—refusal to ordm', not revmoahle—Declarations of deceased—when inadmissible.

    Where a claim made by one executor against the estate of his testator, has been rejected by his có-executors, and the same has, upon a stipulation and agreement approved by the surrogate, been referred to a referee to hear and determine, and a judgment in favor of the claimant has been entered upon his report, it is too late to raise the objection that the claim of an executor is not referable (§ 33, 2 R. S., 88), but must be heard by the surrogate in person.
    Upon the trial the referee refused to require the plaintiff to furnish a hill of particulars. Held (1), that this was a matter of discretion, and, in the absence of an abuse of such discretion, it was not reviewable; (2), that defendants, when the claim was presented, could have required it to be made more precise and particular before accepting or rejecting it.
    In an action against executors to recover a debt due from their testator, his declarations are not admissible to show that he was not indebted to the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      John Sanders, for the appellants.

      James Fuller, for the respondent.
   Boardman, J.:

The plaintiff was an executor named in the will of Jacob Weller, deceased. Defendants were also executrix and executor of said will. Plaintiff presented a claim against the estate of deceased, which was rejected by the defendants, and, upon a stipulation and agreement, approved by the surrogate, the claim was referred to a referee to hear and determine the. same. The referee found in favor of plaintiff’s claim, and on motion judgment was ordered for the plaintiff upon the report of the referee, but without prejudice to defendants’ right to review the exceptions.

The defendants object that a claim of an executor, named in the will, against the estate, is not referable under section 33,2 Revised Statutes 88, but must be heard by the surrogate in person. That may be true, but these parties have agreed to have this dispute heard by a referee, and the surrogate has approved of such agreement. It is now too late to object. The objection could properly have been raised by defendants.when the reference was had. Having failed to make the objection then, it is waived.

The defendants urge further, that the referee erred at the trial, in not requiring plaintiff to furnish a bill of particulars. There are two sufficient answers to this exception: First, it was a matter in the discretion of the court, and, in the absence of an abuse of discretion, is not reviewable; secondly, it ivas in the power of the defendants, when plaintiff’s claim was presented, to require that it should be made more precise and particular, before accepting or rejecting the claim. Besides, the application for such bill should be made to a court, or a judge at chambers,' and not to the referee, no demand having been made under section 158 of the Code.

For a third exception, the defendants claim that the report of the referee is against the clear weight of evidence. I do not think so. The report is abundantly sustained by the evidence of William Weller and George Weller, sons of the deceased, as to his admissions to them shortly before his death. Against this is the evidence of Judge Sanders, of declarations of the deceased at the time of making his will, to the effect that he did not owe anyone. If we should concede that this evidence was admissible, there would be the evidence of two witnesses for the plaintiff, against one for the defendants, as to the declarations of the deceased. As a court of review, we could not, upon such a state of facts, say the referee should have believed the one witness, however worthy, and discredit the two. But the declarations of the deceased were not admissible in favor of his estate, to show that he was not indebted to plaintiff. The declarations of a party against his interest are admissible upon the presumption that he would not speak to his own injury unless it were true. But he cannot make evidence by declarations in his own interest. The defendants represent the deceased, and they can prove no declarations of his which he could not.

The case is not one where a new trial can be granted upon the ground that the report of the referee is against the clear preponderance of the evidence.

There can be no propriety in claiming that the legacy given plaintiff by the will of deceased was to be a satisfaction of plaintiff’s claim. There is not the slightest evidence of any such intention.

The opinion of the referee is quite satisfactory upon the last two subjects discussed.

For the reasons stated, the judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.

       Cadwell v. Goodenough, 28 How., 479.

        2 Wait Pr., 348.

       Williams v. Crary, 4 Wend., 443; Rickets v. Livingston, 2 Johns. Cas., 97; Clarke v. Bogardus, 12 Wend., 67 ; Fort v. Gooding, 9 Barb., 371.


author: Potter, J.:

text:
    MARY KATE SULLIVAN, an Infant, etc., Respondent, v. MARY SULLIVAN and others, Appellants.

      Action for paoiition— Remainderman may bring it—Tenancy in common—for purposes cfpm'tition, may exist between remainderman and owner of present estate.

    The plaintiff’s testator, in his lifetime a tenant in common with the defendant Thomas Sullivan, devised his share of the real property held in common, to his widow for life, with remainder to plaintiff in fee. Reid, that the plaintiff could bring an action for partition during the iife of the widow.
    A remainderman may have a constructive possession which will he sufficient to constitute the unity of the right of possession required to exist in a tenancy in common.
    This is an appeal from a judgment ordered at Special Term of this court, upon the report of a referee.
    The action was brought by plaintiff to compel a partition or sale of certain premises, situated i-n the city of Troy; and judgment was rendered for a sale of the premises and division of the proceeds. The defendant Thomas Sullivan took exceptions to the report of the referee, and brought this appeal from the judgment.
    The material facts, as found by the referee, are, that John Sullivan, plaintiff’s testator, in his lifetime, owned in fee, and was possessed of, the one equal undivided half part of the premises described in the complaint, as tenant in common with the defendant Thomas Sullivan; that he devised the same to his wife, defendant Mary Sullivan, for life, with remainder to plaintiff, in fee. John Sullivan, at the time of his death, and Thomas Sullivan, with their families, were residing upon the premises, and the plaintiff with her mother, and' Thomas with his family, continue to reside upon them.

      Martin I. Townsend, for the respondent.

      Esek Cowen, for the appellants.
   Potter, J.:

But one question is discussed upon the points in behalf of the appellant, and that is, whether the plaintiff can maintain an action of partition upon the facts in this case. The objection that the plaintiff cannot maintain such action, was distinctly taken by the answer, and is determined by the judgment. This question, from the examination I have been able to give to it, does not seem to have been decided by the court of last resort in this State, nor have the decisions of this court upon the question been entirely uniform.

This question is very ably discussed, and the cases claimed to have a bearing upon it are reviewed and criticized, in Blakeley v. Calder, by Judge Denio. The conclusion reached by him is, that all those cases were decided upon questions other than the one involved in the case of Blakeley v. Calder, except the case of Brownell v. Brownell; and the decision in the latter case is not a correct exposition of the law upon this question, if it was really involved in the latter case.

. This court had held in the case of Blakeley v. Calder, that a remainderman, though not in actual possession of premises, might maintain an action for their partition. This case was taken to the Court of Appeals, and Judge Bowen, in that court, delivered an opinion affirming the judgment of this court, at General Term — that the purchaser at partition sale of the premises be compelled to complete the purchase, upon another ground than the right of the remainderman to maintain the action. Judge Denio also wrote the opinion in the case above referred to, in favor of affirmance, upon the ground that the owner of a vested remainder, though not in actual possession, could maintain an action for partition; and the opinion of Judge Denio was concurred in by three other (and perhaps not the least able) judges of that court. The next reported case, involving this question, is Howell v. Mills. That case distinctly held that a remainderman, not in the actual possession, could maintain the action.

I do not think the court, in. the case under consideration, would be warranted in disregarding the current of decision upon this question, even if its members entertained views not altogether in harmony with the cases cited.

The decisions upon the subject since Brownell v. Brownell, concur, that an actual or present possession is not necessary to maintain the action, but that the language of the statute, “ when several persons shall hold and be in possession,” is satisfied, though the remainderman be not in the actual possession. It may be remarked that the legislature took this view, in enacting section 448 of the Code, and in making the provisions of the Eevised Statutes applicable to the action of partition; for the language of that section is: “When lands, etc., are held or possessed by joint tenants or tenants in common.”

But, it is insisted in this case that, however it may be held as to the right of one of several remaindermen, who are not in the actual possession, to maintain the action of partition, a sole remainderman cannot maintain the action. In other words, that the plaintiff must be a joint tenant or tenant in common, in order to maintain partition ; the plaintiff in this case, having no tenant in common, cannot maintain the action. It is argued that the plaintiff is not a tenant in common because there is no unity of possession between her and any other owner. This argument is based upon the necessity of an actual possession. But is actual possession necessary to constitute a tenancy in common ? We have seen that actual possession is not required under a statute giving the right to this action to persons in possession. Constructive possession answers the requirement of that statute. May not constructive possession equally well answer the requirement of the definition of a tenancy in common? A tenant in common, as defined in Washburn’s Beal Property, “is where two or more persons hold possession of lands and tenements, at the same time, by several and distinct titles.” The quantities of their estate may be different, the shares may be unequal; the modes of acquisition of title may be unlike; and the only unity between them be that of possession. “ There may be a tenancy in common among several owners of a remainder,” yet neither of the remaindermen is in actual possession.

Possession of premises so as to allow the bringing of an action of partition, is presumed from the allegation in the complaint, that the parties are seized as tenants in common. The seizin of one tenant in common who admits, or does not deny, the title of his cotenant, may be considered as the seizin of all the tenants. Where there is no visible adverse possession, the entry of one cotenant is deemed a possession and seizin of.all, according to their titles. Possession of one tenant in common is the possession of all. Hence, I conclude that constructive possession is sufficient to constitute the unity of the right of possession required in a tenancy in common. It is also, urged that a power in a remainderman, having no right of actual possession till a remote future, to compel a partition or sale of lands in the actual occupation of other owners who prefer and whose interest it is to continue that occupation during the period that they are entitled to the actual occupation, may be inopportunely or oppressively exercised.

These are the conditions and incidents which appertain to this species of ownership of real estate, and cannot become legitimate subjects for the consideration of the court in the present stage of this case.

The judgment should be affirmed, costs of the parties to this appeal to be paid out of proceeds of sale, as provided in the judgment.

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

Learned, P. J., dissented.

Judgment affirmed, costs to be paid out of proceeds of sale.

       15 N. Y., 617.

       19 Wend., 367.

         13 How. Pr., 476.

       7 Lans., 193.

        Supra.

       2 R. S., 317.

      Page 562.

         1 Wash., 563 ; Coleman v. Lane, 26 Geo., 515.

         Jenkins v. Von Schaack, 3 Paige, 242; Burhans v. Burhans, 2 Barb. Ch., 398.

       Shumway v. Holbrook, 1 Pick., 114

       Thomas v. Hatch, 3 Sum., 170.

       Bryan v. Ashester, 5 Day, 191.

       Putnam v. Ritchie, 6 Paige, 398.


author: Learned, P. J.:

text:
    JOHN L. WEISMER, Respondent, v. THE VILLAGE OF DOUGLAS, Appellant. ROBERT HALSEY v. THE SAME.

      Chapter 577, Laws of 1868 — town bonds — cannot be issued to aid corporation created for private purpose—payment of interest on — estoppel.

    In pursuance of chapter 577, of the Laws of 1868, bonds were issued by the village of Douglas in payment of stock of the Long Eddy Hydraulic and Manufacturing Company, a private corporation created for the purpose of improving a water privilege and of manufacturing lumber in the said village. In an action brought upon said bonds, held, that the purpose for which the company was created was a private one, and that the legislature could not authorize the village to issue bonds in aid thereof.
    After the bonds were issued, the interest due thereon was paid once, and the village once voted on its stock. Meld, that the village was not thereby estopped from setting up the invalidity of the bonds in this action.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of these actions by the court, without a jury.
    These are actions to recover the amount due on certain 'coupons attached to bonds issued by the defendant. They were tried at Special Term, without a jury, and a decision was given for the plaintiff in each. The defendant appeals. The same questions arise in each action.
    The Long Eddy Hydraulic and Manufacturing Company was a corporation formed under the general laws of this State for the purpose of “constructing and improving a water privilege * * * and for the purpose of manufacturing lumber.” In other words, it was a saw-mill company. By chapter 837, Laws of 1867, the company was authorized to build a dam across the Delaware. By chapter 577, Laws of 1868, the village of Douglas was authorized to take stock, not to exceed $10,000, in this company. This was to be done by the usual system of commissioners and consents, which has been só notorious for the few last years.
    Three commissioners were to be appointed for the purpose of taking the stock. They were to issue scrip; this scrip was to be denominated on its face, “Internal Improvement Fund of the Village of Douglas.” Ho bonds were to be issued until the written consent had been obtained of a majority of tax-payers representing a majority of the taxable property. Ho subscription was to be made to the stock until at least $15,000 of the stock had been in good faith subscribed, and forty per cent thereon paid in. The bonds were to be negotiated at not less than par; the proceeds to be invested in securities, and the securities collected to meet the assessments on the stock of the company owned by the village. Taxes to pay the principal and interest due on the bonds were to be collected in the same manner as other village taxes.
    On the 1st of June, 1868, and at the time of the issue of the bonds, Dennis D. McKoon was president, Henry H. McKoon was treasurer, and Francis G. Barnes was clerk, of the village of Douglas. A meeting of the village trustees was held on that day, at which were present Dennis D. McKoon, U. S. Tyler, O. G. Armstrong and —— Peak. McKoon was then treasurer, and Peak and Tyler stockholders, in the Long Eddy Hydraulic and Manufacturing Company. On that day these trustees of the village appointed Dennis D. McKoon and Samuel Miller and George Potts, two other stockholders of the Long Eddy Hydraulic and Manufacturing Company, “ commissioners for internal improvement fund.” Prior to this time, however, and to the issue of the bonds, as heretofore stated, $15,000 of the stock of the company had not been in good faith subscribed for; nor had forty per cent thereon been paid in. But the stockholders had had a meeting in the spring, and Potts had agreed to assume $300, Parmenter $500, and McKoon $1,000; so as to have it appear that all of the stock was taken. Potts’ extra stock was paid for in work; Miller gave a note for the first fifteen per cent; and McKoon declined to pay his, on account of the understanding that he was not to pay. Peak paid for his stock by building a boarding-house for the company. Under the provisions of the act, consents to issue said bonds were obtained, proved and acknowledged, and certified by the village clerk. • These represent a majority of the taxable property, provided the signature of the president of the Hew York and Erie Railway Company is a sufficient signing to represent the company, without a resolution of the board of directors. There is no evidence that it was authorized by any resolution of the board.
    Said Dennis D. McKoon, as president, said Henry H. McKoon, as treasurer, Francis G. Barnes, as clerk, and said Dennis D. McKoon, Samuel Miller and George Potts, as commissioners, signed bonds to the amount of $10,000, denominated on the face, “Internal Improvement Fund of the Village of Douglas.” These bonds recite a statute passed April thirtieth. The statute was in fact passed May fifth. They are payable to Dennis D. McKoon, treasurer, or bearer. They were delivered to Dennis D. McKoon.
    On the 1st of July, 1868, a certificate of stock in the Long Eddy Hydraulic and Manufacturing Company for 100 shares, signed by Dennis D. McKoon, treasurer, and Cyrus Peak, president, was issued to the village. It states that fifteen per cent had been paid. A second installment, of same date, of twenty-five per cent; a third of thirty-five per cent, August twenty-seventh; and a fourth of twenty-five per cent, October first, are indorsed; all signed by Dennis D. McKoon, treasurer.
    The bonds’of the village were not sold, but were turned over to the company for the stock. The plaintiffs, in December, 1868, or January, 1869, and in a month or two after that, bought some of these bonds. They got them of Dennis D. McKoon, and paid him for them. The plaintiffs now sue on the unpaid coupons of these bonds.
    The trustees of the village of Douglas, since the issue of this stock, have voted thereon. And the taxable inhabitants of the village have once voted to raise, by special tax, the interest, $525, to become due on the bonds; and the same was raised and paid accordingly.

      H. & W. J. Welsh, for the appellants.
    The bonds, being issued without the consents required by statute, are void in the hands of loonafide holders or purchasers for value. (Starin v. The Town of Genoa, 23 N. Y., 449, 450; Gould v. Town of Sterling, id., 462, 465 ; The People v. Mead, 36 id., 224; Town of Venice v. Breed, 1 N. Y. S. C., 130.) The act of the legislature, passed May 5, 1868, was and is unconstitutional, null and void. The liability was created without providing any judicial forum, in which the legality of the proceeding may be questioned by the parties interested. (Wynehamer v. The People, 13 N. Y., 395 ; Taylor v. Porter, 4 Hill, 140 ; 5 N. Y., 511; 12 id., 209; 35 id., 302; referred to and commented on in The Town of Rochester v. Deyo, 2 N. Y. S. C., 148.) The act of the legislature above referred to, and under which those bonds are alleged to have been issued, is void, for the reason that it authorized the taking of private property for a private purpose. (Gerard’s Titles to Real Estate, 736; The People v. The Mayor of Brooklyn, 4 N. Y., 422; The People v. Holbert, 46 id., 113; Beekman v. Sar. and Schen. R. R. Co., 3 Paige, 45 ; Varick v. Smith and the Attorney-General, 5 id., 137; Bloodgood v. Mohawk and Hud. Riv. R. R. Co., 18 Wend., 9; People v. Norris, 13 id., 328; 2 Kent’s Com. [10th ed.], 227; Taylor
      v. Porter, 4 Hill, 143 ; In the Matter of Albany Street, 11 Wend., 149, 151; Embury v. Conner, 3 N. Y., 511; Sedg. on Stat. and Const. Law, 177; The People v. Flagg, 46 N. Y., 405 ; Gordon v. Cornes, 47 id., 612; Cooley on Const. Lim., 494; People v. Batchellor, 53 N. Y., 143; Sweet v. Hulbert, 51 Barb., 312.)

      Youmans & Niles, for the respondents.
    Delegation of the authority to the village of Douglas to issue bonds, and provide for their payment by tax on its inhabitants, was an exertion of the power of taxation on the part of the legislature, as distinguished from the right of eminent domain. (Duanesburgh v. Jenkins, in Com. Appeals, 1873, not reported, MS. opinion by Johnson, C.; People v. Mayor, etc., 4 Comst., 419; Guilford v. Supervisors of Chenango County, 3 Kern., 143; Olcott v. Supervisors, 16 Wall., 678.) The constitutional inhibitions against depriving a person of property without due process of law, and taking private property for private purposes, have repeatedly been held not to apply to the case of property or money exacted by the power of taxation. (People v. Mayor, etc., and Guilford v. Supervisors, etc., above cited; Darlington v. Mayor, etc., 31 N. Y., at pp. 189, 190; Davidson v. Mayor, etc., 27 How., 342; People v. Mitchell, 45 Barb., 308; S. C., affirmed, 35 N. Y., 551; Bank of Rome v. Village of Rome, 18 id., 38; Thomas v. Leland, 24 Wend., 65 ; 2 Dillon’s Munic. Corp., 686, and cases.) The right of eminent domain can only be exercised for a public use, in the strict sense of the term, and then only to an extent necessary for the purposes of that use (Taylor v. Porter, 4 Hill, 140; Matter of Albany Street, 11 Wend., 148; Embury v. Conner, 3 Comst., 511; Guilford v. Supervisors, supra ; 2 Dillon’s Munic. Corp., 556 et seq.); while the taxing power may be exerted whenever public interests may be thereby promoted, without reference to a user by the public. (Darlington v. Mayor, etc., 31 N. Y., 164; Brewster v. Syracuse, 19 id., 118; Bank of Rome v. Village of Rome, 18 id., 43 ; Clark v. Rochester, 24 Barb., 489; Olcott v. Supervisors, 16 Wall., 678; and cases before cited.) The powers of the legislature within its sphere of action are absolute and supreme, subject only to the restrictions contained in the federal and State Constitutions, and it is the sole and exclusive judge of the expediency or necessity of exercising those powers. (Cowen, J., in People v. Morrell, 21 Wend., 576 ; Butler v. Palmer, 1 Hill, 330 ; Leggett v. Hunter, 19 N. Y., 463 ; Clark v. Rochester, 24 Barb., 446.) The taxing power and right of eminent domain, being among those inherent to the legislature, are unlimited, while exercised within their legitimate spheres. (People v. Lawrence, 41 N. Y., 141, and numerous cases cited; Howell v. Buffalo, 37 N. Y., 270 ; Matter of Peter Townsend and other cases, supra ; Clark v. Rochester, 24 Barb., 446 ; Bloomfield, etc., Natural Gas-light Company v. Richardson, 63 id., 437; Talbot v. Hudson, 24 L. R., 228; Hasbrouck v. Milwaukee, 13 Wis., 37; Brodhead v. Milwaukee, 19 id., 37; Olcott v. Supervisors, etc., 16 Wall., 678; Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend., 9; S. C., 14 id., 57; Buffalo, etc., R. R. Co. v. Brainard, 5 Seld., 109; People v. Nearing, 27 N. Y., 306 ; Duanesburgh v. Jenkins, supra ; Miller, J., In re Townsend, 39 N. Y., 181.) The following results would have flown from an accomplishment of the objects of the company. As to the public use: 1. The improvement of the navigation of the river by cleaning out the channel and'construction of docking and piers for the benefit of the public. 2. The creation of a slack water for the convenience and security of raftsmen. 3. The introduction of pure and wholesome water into the village for public and domestic purposes. This is clearly a public use. (Wayland v. County Commissioners, 4 Gray, 500, per Thomas, J.; Gardner v. Newburgh, 2 Johns. Ch., 162; Mayor, etc., v. Bailey, 4 Denio, 443, 446; 2 Dillon’s Munic. Corp., 561.) 4. The improvement of the mill site. The question as to whether the improvement of a mill site is a public use, has never been expressly adjudicated in this State, so far as the reported cases show, but the subject has received judicial discussion in other States with Constitutions similar to our own, where this question has been uniformly answered in the affirmative. This is the case in Massachusetts. (Boston, etc., Corp. v. Newman, 12 Pick., 467; Hazen v. Essex County, 12 Cush., 478; Commonwealth v. Essex County, 13 Gray, 249.) In Connecticut. (Olmstead v. Camp, 33 Conn., 532 ; Bradley v. N. Y. and N. H. R. R. Co., 21 id., 305; Nicholson v. N. Y. and N. H. R. R. Co., 22 id., 86.) In Wisconsin. (Newcomb v. Smith, 1 Chand., 71; Pratt v. Brown, 3 Wis., 603; Fisher v. Horicon, etc., Co., 10 id., 351.) In Virginia. (See Crenshaw v. Slate River Co., 6 Rand., 245.) In Tennessee. (Harding v. Goodlett, 3 Yerger, 41.) And doubtless many others. Our own courts, in referring to this particular object, evidently regard it as of the same nature as others of a public character. (See remarks of Smith, J., in Clark v. Rochester, 24 Barb., 482, in respect to the erection and operation of a flouring mill; Bloomfield, etc., Gas Company v. Richardson, 63 id., 449.) By proceeding under the act in question, and seeking and accepting the benefits thereby conferred, the defendant has waived the right to question its constitutionality. (Houston v. Wheeler, memorandum, 52 N. Y., 641, MS. opinion by Folger, J.; Sherman v. McKeon, 38 id., 266; Embury v. Conner, 3 Comst., 511; Baker v. Braman, 6 Hill, 47; Vose v. Cockroft, 44 N. Y., 415; Vanhook v. Whitlock, 26 Wend., 43; The People ex rel. N. Y. and H. R. R. Co. v. Havemeyer, 4 N. Y. S. C. [T. & C.], 365.) Where a corporation issues and puts into circulation obligations purporting on their face to have been issued within the scope of its corporate powers, it is precluded as against a bona fide holder from asserting their invalidity, although they were in fact issued for a purpose not authorized by law. (F. and M. Bank v. B. and D. Bank, 16 N. Y., 125 ; Stoney v. American Life Insurance Company, 11 Paige, 635 ; Supervisors v. Schenck, 5 Wall., 784; Morford v. Farmers' Bank, 26 Barb., 568; State of Indiana v. Woram, 6 Hill, 33; Moss v. The Rossie Lead Mining Co., 5 id., 137.) To this class of cases the defense of ultra vires does not apply. (5 Am. Law Rev., 272; 2 Dillon’s Munic. Corp., 855.) That any fraud or irregularity in the issue of the bonds does not constitute a defense against a bona fide holder for value, is too well settled to admit of question. (Bank of Rome v. Village of Rome, 18 N. Y., 38; Grand Chute v. Winegar, 15 Wall., 355 ; Lexington v. Butler, 14 id., 282; Mercer Co. v. Hackett, 1 id., 83; Gelpecke v. Dubuque, id., 175; Myers v. Muscatine, id., 384.)
   Learned, P. J.:

The act incorporating the village of Douglas, authorizes it to sue and to be sued. Probably, this relieves the cases from the question whether an action is the proper remedy for the plaintiffs, Without passing on that question, we come .to the merits.

It should be noticed, in the outset, that the forming of a corporation does not make the purpose of the corporation a public one. Therefore, the purposes of the Long Eddy Hydraulic and Manufacturing Company are no more public than those of a single individual would be, if he were engaged in the same business. We are to treat this case just as if it were not a corporation, but a few partners who were to engage in the business of improving a water privilege and manufacturing lumber, and the village of Douglas was to be one of the partners.

What then was the business of the company ? The certificate distinctly states that it is the constructing and improving a water privilege, and the manufacturing of lumber, etc., thereon. Some facts are found by the court below, 'in this connection, which should be noticed. It was found that the construction of the dam would have caused slack water, which would be of advantage to lumbermen, by enabling them to construct piers; that lumber, logs and timber are the principal products of the surrounding country; that the material growth and prosperity of the village would have been increased by the accomplishment of the objects of the company; that the public might have been benefited by the clearing out of the channel of the river; that by the use of proper appliances the water could have been conducted through the village from the dam.

So far as I can see, there is no evidence on these points in the case. Presumptively, it would seem that the forcing of water by some proper appliances, up ten feet into the village, would not aid the water privilege, or the manufacture of lumber. But, at any •rate, these purposes are problematical, and are not connected with the objects of the company. When a company shall be formed for the purpose of docking the river, of clearing its channel, or of conveying water into the village, it will be time to decide whether such purposes are of a public character. We have now to do only with a company incorporated to improve a water privilege, and to manufacture lumber, etc.; useful purposes, but are they publio?

In some States, the legislature may authorize the taking of land for mill sites in invitum. Statutes giving such power, and called flowage acts, are recognized as valid in Massachusetts, Connecticut, and in some other States. They have not been so recognized in this State that I am aware of; and the expression of opinion on the subject has been unfavorable.

The taking of land, in invitum, has been principally done by railroads, etc. Its ground is necessity, and that is its limit,

But the question here is not on the right of taking land in i/mitum, although it may have some analogy with that subject. And the numerous cases showing that, on making compensation, land may be taken for.railroads, water-works, and the like, have not much to do with this case. The question here is, whether a municipal corporation can tax the persons and property under its government, in order to turn over the money so raised, to individuals, for the purpose of building a saw-mill.

Another point which should be noticed is, that this question is not affected by the fact (assuming it to be a fact) that a majority of the tax-payers consented. In private corporations, within the scope of the corporate powers, the majority properly govern. But the village is not organized for manufacturing purposes. The majority have no necessary right, therefore, to compel the minority to enter into speculations of this kind. A village is a subordinate branch of the civil government. The legislature may give the management of its municipal affairs to the majority, or to such other authority as may be constitutionally designated. What right has any village authority, whether supported by the majority of taxpayers or not, to take by tax the private property of their citizens in order to give it to others? The mere fact that parties live .within the same corporate limits, does not authorize the majority to make bargains for the minority in matters not pertaining to the corporate body. While, again, if such a power can be derived from an act of the legislature, then it would follow that no consent of a majority of tax-payers would be needed, in case the legislature chose to dispense with it.

The legislature, without the consent of the majority of the taxpayers, could authorize the municipal authorities to levy taxes for such purposes as these, if they could give such authority with the consent of such majority. Courts have already seen the evil of. such a doctrine; and they have held that a corporation cannot he compelled to embark in private business — not even in a railroad.

Without regard, therefore, to the fact thát few of the tax-payers, or many, consented to the issue of these bonds, we return .to the question whether the legislature has any power to authorize a municipal corporation to raise by tax money for the purpose of paying it to private individuals to use in their manufacturing enterprises. The right to tax is necessarily involved in the right to issue bonds, because it is by taxation only that the bonds must be paid. There is no other resource for payment.

It is too late now to dispute that acts similar to the present are constitutional when the enterprise is the construction of a railroad. This is upon the ground that the railroad is a public highway. As it is the duty of a municipality to take care of the roads and highways within its limits, it was held that “ a railroad terminating at a village .or city was not so foreign to its public interests ” that the municipality might not subscribe to its stock. And from that position the doctrine has finally gone to the extent of allowing a county to give aid to a railroad out of the State.

But even as to railroads, it seems to be thought that the doctrine has been carried too far; for, while a railroad constructed by a private corporation is a public highway, and while the legislature may compel a town, without the consent of its citizens, to issue bonds for the construction of highways, yet, with happy inconsistency, the courts of this State have recently held that the legislature cannot compel a town to issue bonds to aid in the construction of a railroad by a company. In the language of that decision, a railroad is “ a work, public in some respects, but private in others.” How, decisions which have sustained the so-called “bonding statutes,” have always recognized the fact that railroad companies are private corporations. But they have sustained these statutes on the ground that the purposes or objects of the companies were public improvements; “ that the railroad had not lost this character because constructed by individual enterprise.”

Since, therefore, the case last cited holds that the railroad—that is, the thing constructed — is “a work public in some respects, but private in others,” we may safely understand that this case shows at least a modification of former decisions. So, too, in the case of Loan Association v. Topeka, it is remarked “ that few courts have decided in favor of these so-called bonding statutes,’ without a division among the judges, and others have decided against them altogether.” And the court adds: “ Of the disastrous consequences which have followed its recognition [the constitutionality of such statutes] by the courts, and which were predicted when it was first established, there can be no doubt.” The tone of that decision indicates a doubt of the soundness of the principle which has been decided— even as to railroads.

But when we get beyond the influence of those powerful corporations, and inquire whether a legislature can authorize a city or town to levy a tax for the support of a manufacturing establishment, there can be no doubt, on principle, or from the decisions. No tax can be levied by a city, which is not for a public purpose. And the probable benefit which may come to a city or village from a successful manufacture, is not a public purpose. If a tax may be levied by a city to aid a manufacturer, it would follow that a tax might be laid to aid a merchant; or, in other words, a city, under the form of taxation, might take away the property of some of its citizens to enrich others. This would be confiscation rather than legislation. It is contrary to sound constitutional law — unless, perhaps, in the case of a protective tariff.

A State cannot order a city to raise money by taxation, to establish one of its citizens in business, The legislature cannot, in the form of a tax, take the money of a citizen and give it to an individual, A municipal bond, issued under legislative authority to secure the location, or aid in the erection of a manufacture, is void, in the hands of a bona fide holder.

The legislature of Maine authorized the town of Jay to loan its credit to persons who were about to put up a steam saw-mill. There was to- be a run of stones for grist, so that it might have been urged that one object was the grinding of grain, and that this was a public purpose. The town voted to loan $10,000 on this consideration. .On the suit of some of the inhabitants, it was held that this was not a public purpose, and that the legislature could grant no such power.

So, even where, under the authority of the legislature, a town voted to exempt manufacturing establishments from taxation for ten years, it was held that this was indirectly taxing others to give money to the manufacturers, and that it could not be done.

The legislature of Massachusetts passed a law, authorizing the city of Boston to raise money by the issue of bonds, for the purpose of lending it to owners whose buildings had been destroyed by the great fire. In the case of Lowell v. City of Boston, this law was declared to be unconstitutional. It authorized taxation merely for the benefit of private individuals. Yet in that instance it might have been said with great force, in the language of the decision in the present case, the material growth and prosperity of the village (city) would have been largely increased by the accomplishment of the objects of the company (owners), as it would have added a large tax-paying element thereto, and increased the value of the adjacent property.”

This question has been carefully examined in the case of Loan Association v. Topeka. The city of Topeka had been authorized by the legislature to issue bonds to aid a bridge manufacturing and iron-works company. The only defense considered was, whether such a statute was constitutional. Mo question was made as to the regularity of the issue, and the plaintiff was a purchaser for value. The city had raised by taxation, and paid the coupons first due. This action was on other coupons. The court held that the bonds were void; that a statute which authorized a town to issue bonds in aid of the manufacturing enterprise of individuals, is void, because the taxes necessary to pay the bonds would, if collected, be a transfer of the property of individuals to aid in the gain of others, and not for a public use. That case, decided by a court which has manifested ño reluctance to sustain the rights of holders of municipal bonds, seems to be sound and decisive.

Some remarks of the court are applicable also on the point which is urged upon us : That the village of Douglas has once paid interest on these bonds, and has voted on the stock. “ Such a payment works no estoppel.” The legislature had no authority to authorize the village to take, this stock, or to issue these bonds. All the acts were void, and nothing which has been done can authorize a future levy of taxes for this purpose.

Such is the course of decisions on this question. Others still might be cited. They show that the holding of bonds issued by municipalities to aid railroad companies to be valid was an exception to the general rule; an exception unfortunate, if not unsound. That it rested on the ground that the work was public; and that later decisions hold that such work is public only in some respects.” And they further show that, with this exception, courts have refused to sustain laws which authorize municipalities to tax their citizens for the benefit of private enterprise.

The judgment should be reversed, and judgment ordered for defendant in each case.

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

Ordered accordingly.

      Laws of 1867, chap. 449.

       Brady v. Supervisors, 10 N. Y., 260; Martin v. Supervisors, 29 id., 645; Bell v. Esopus, 49 Barb., 506.

      Hay v. Cohoes Company, 3 Barb., 42; Cooley’s Const. Lim., 534.

       N. Y. and C. R. R. Co. v. Gunnison, 8 S. C. (1 Hun), 496; R. and S. R. R. Co. v. Davis, 43 N. Y., 137.

       People v. Mayor of Brooklyn, 4 N. Y., 419.

       Taylor v. Porter, 4 Hill, 143.

       People v. Batchellor, 53 N. Y., 128.

       Olcott v. Supervisors, 16 Wall., 678, at 696; Clarke v. Rochester, 24 Barb., 446; Bank of Rome v. Village of Rome, 18 N. Y., 38.

       Railroad Company v. Otoe, 16 Wall., 667.

       Bank of Rome v. Village of Rome, ut supra.

       People v. Flagg, 46 N. Y., 401.

       People v. Batchellor, 53 N. Y., 128.

       20 Wall., 655.

       Cooley’s Const. Dims., 494.

         Brodhead v. City of Milwaukee, 19 Wis., 658

       Commercial Bank v. Iola, 2 Dillon, 358.

       Allen v. Inhabitants of Jay, 60 Maine, 124.

       Brewer Brick Company v. Brewer, 13 Am. Law Reg. (N. S.), 735; see, also, the same principle in Weeks v. Milwaukee, 10 Wis., 242.

       20 Wall., 655.


text:
    JANET A. LATHROP, Appellant, v. HELEN DUNLOP AND OTHERS, RESPONDENTS.

      Wül—revocation of, by marriage — 2 R. S., 64, § 39 — Qonsbruetioñ of words “ deemed, to be revoked. ”
    A, while a resident of this State, made her will. Subsequently, in Canada, she entered into an ante-nuptial agreement, by the terms of which she retained full control of her own property. Afterward she married and died. Held, that by the provisions of 2 Revised Statutes, 64, section 39, the will was revoked. The expression of the statute “ deemed to be revoked ” is positive, and does not create a mere presumption in favor of revocation, subject to be explained.

      Appeal from the decision of the surrogate of Albany county, refusing to admit to probate the will of Jessie Dunlop Empson.

      S. O. Shepard, for the appellant.
    2 Revised Statutes (5th ed.), section 39, page 145, says: “A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage ” (not-revoked, but deemed or regarded as revoked, unless circumstances indicate to the contrary). This statute merely raises a presumption of revocation, from the fact of the subsequent marriage. (McMahan v. Allen, 4 E. D. Smith, 552, opinion of Woodruff, J.) But it is insisted that this section 39 of the statute, if not in express terms, is repealed by implication, by the acts of 1848,1849 and 1860. Before the passage of these acts (married woman’s acts, so-called), it was held that “ slight circumstances in some cases were sufficient to destroy the presumption of a revocation arising out of a change in the testator’s family.” (Havens v. Vandenburgh, 1 Denio, 32; Dayton on Surrogates [2d ed.], 131.) The words “ dispose of,” used in an ante-nuptial contract, cover a devise or bequest by will. (Am. Home Miss. Soc. v. Wadhams, 10 Barb., 548.) The act authorizing a married woman to dispose' of her property (Laws of 1849, chap. 375) also expressly declares “that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.”

      Amasa J. Parker, for the respondent.
    “ A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.” (2 R. S., 64 [5th ed.], 145; 2 Edm. ed., 64; § 66, p. 66, chap. 360 of act of 1837.) Before the Revised Statutes, the law was well settled that such subsequent marriage was a revocax tion; and the only case in which it has ever been claimed to be otherwise, was when the wife survived the husband, which, it was claimed," revived the revoked will. It was clearly the intention of the Revised Statutes to render fixed and certain what, before .their adoption, had been open to question, and this clearly appears from the revisers’ notes. (3 R. S. [2d ed.], 631.) It will be observed that the exception to the revocation stricken out by the legislature was the one which the revisers think had been recognized in 2 Coke, 6, 2 Term, 684, but which was denied by other reliable authority and. had been overruled. (See 1 Redfield on Wills [3d ed.], §§ 24, 292; 1 Jarman on Wills [Eng. ed.], 114; Cotter v. Sager, 2 P. Wms., 623, 624; Doe v. Staple, 2 T. R., 685, 696.) It is a singular fact that on this subject of making the statute express the whole law, the State of Massachusetts should differ both from this State and from England. (2 Wash. on Real Property, 697 [marg.]; Mass. Gen. Stat., chap. 22, § 11.) This provision of our statute, by which the will of an unmarried female is revoked by her marriage, admits of no exception and of no presumption that can defeat it. (4 Kent Com., 527, 528 [marg. paging] ; Langdon v. Astor’s Exrs., 16 N. Y., 38; Adams v. Winne, 7 Paige, 99 ; Delafield v. Parish, 25 N. Y., 9, 99.)
   Learned, P. J.:

Jessie A. Dunlop, a resident of this State, duly executed her will. Subsequently, in Canada, she entered into an ante-nuptial agreement, by the terms of which she retained full control of her own property. A few days afterward she married, and about two months after her marriage she died. Her marriage and death occurred in the year 1874; and she was a resident of this State until after her will was executed. Her will was presented for probate, and probate was refused on the ground of her subsequent marriage. From the refusal an appeal is taken.

The question involved is understood to have been decided by this court. As the case is not reported, we state, briefly, our views.

The, statute is plain and peremptory. Such a will “ shall be deemed revoked.” The appellants urge that, as the expression is not “ revoked,” but “ deemed to be revoked,” it should be construed to mean only a presumptive revocation, open to explanation. We think not. The language is accurate. Revocation is an act done by the party, by which he recalls his will. The statute, therefore, with propriety says, not that the marriage revokes, but that it is to be deemed, or considered the same as, a revocation. It is not a revocation, but it has the effect of a revocation. The statute does not say that marriage shall be deemed a presumptive revocation, but, positively, it shall be deemed a revocation. The language is positive.

And it is well to have a definite rule on such a point, and not to ■leave the matter open to the guesses of courts, whether, in each particular case, the person intended, or did not intend, to leave her will in force.

The reason of the law is plain, that marriage produces such new relationships that a will made before marriage will not, as a general rule, express the wishes of the woman after her marriage.

We see nothing in the so-called married woman’s acts which should modify this statute. The fact that a married woman now has power to make a will, does not affect the reason of the law, which is mentioned above. To illustrate this, the previous sections of the statute declare that, in certain cases, the marriage of a man and birth of children, shall be deemed a revocation of his will. This is not because he had not the testamentary power, but because, as a general rule, the change of circumstances prevents his will, made previously, from expressing his wishes.

The same may be said as to the ante-nuptial agreement. In substance, this gave to the deceased the same rights which married women have now under the laws of this State. It gave her, or purported to give, the power to dispose of her property after marriage. But she did not exercise that power. And it is further important to notice that, even if, as the appellant claims, marriage were only a presumptive revocation, there was no act of the deceased, after such revocation, tending to rebut the presumption.

As the marriage, according to the appellant’s views, is to he presumed to be a revocation, and as that is the last act of the deceased affecting this subject, there is .nothing to overthrow the presumption.

The decree should be affirmed, with costs against the appellant.

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

Ordered accordingly.

      2 R. S., 64, §39.


text:
    WILLIAM TOWNSEND, Respondent, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Passenger—liability of company for wrongful act of conductor in collecting tickets.

    The plaintiff, having purchased a ticket from Sing Sing to Bhinebeck, entered a train from Héw York at Sing Sing, which stopped at Poughkeepsie, where passengers going farther north were accustomed to take the next train. Just before coming to Poughkeepsie, the conductor of the train took up plaintiff’s ticket. Plaintiff having entered the next train going north at Poughkeepsie, the conductor of that train, shortly after leaving that place, demanded his ticket, and, upon his refusal to pay the fare, ejected him from the train, although informed by the plaintiff and other passengers that the other conductor had taken his ticket. In an action brought by the plaintiff to recover damages for such expulsion, held, that he was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The plaintiff purchased a railroad ticket at Sing Sing for Rhine-beck. With this ticket in his possession, he went on a train from New York at Sing Sing. This train went no farther than Poughkeepsie. It was customary for passengers who were going farther north, to take another train at Poughkeepsie. After the train on which the plaintiff was had passed Peekskill, the conductor called for tickets, and took up and retained the ticket of the plaintiff.
    Upon the arrival of the train at Poughkeepsie, as the train went no farther, the plaintiff got out and waited for some twenty-five minutes until another train came along, which was going north. He got into this train. The conductor of this train asked him for his ticket. The plaintiff told the conductor that he had purchased a ticket at Sing Sing for Rhinebeck, and that the other conductor had taken it up. Some of the passengers told the conductor that the plaintiff had such a ticket. The conductor told the plaintiff that he must pay the fare. The plaintiff refused to do so, and was, for this reason, put off the car at Staatsburgh. No unnecessary force was used. The plaintiff sued to recover damages. He recovered at the Circuit, and the defendant appeals.
    F. Loomis, for the appellant.

      Samuel Hand, for the respondent.
   Learned, P. J.:

As the acts of the conductors in the scope of their duty are the acts of the defendants, the case stands thus : The defendants contracted with the plaintiff to take him from Sing Sing to Rhinebeck. They gave him a ticket which he was to show in the cars, when requested, and to surrender to them on demand. After he had traveled for some distance, they required him to surrender his ticket, and he did so. Then they requested him to show it, and as he could not do this they put him off the cars.

If the train, on which the plaintiff started, had gone through to Rhinebeck, there would probably be no question made of the defendants’ liability. No one would claim that a conductor can take up a passenger’s ticket, and then put him off the cars for his inability to show his ticket, without rendering the company liable. What difference can it make that the plaintiff was obliged by the defendants to get upon another train in order to complete his journey ? The defendants urge, that, as he had no ticket when he got on the train at Poughkeepsie, he was to blame for thus attempting to continue on his way to Rhinebeck. But he had no notice that he needed a ticket any longer. The company had taken up that which he had. He might naturally have supposed that no further call would be made on him. If he had stayed at Poughkeepsie, without attempting to go farther north, that would have been his fault or negligence;■ and he would have had no complaint against the company. If he had bought another ticket at Poughkeepsie, and had then sued the company for the extra sum paid, what cause of action would he have had. They would have justly said: We never refused to carry you to Rhinebeck. Taking up your ticket was no refusal. We always take up tickets at some point before the end of the journey.

To require a passenger to show a ticket may be reasonable; but a company cannot require a passenger to comply with a regulation, compliance with which they have themselves prevented. Nor can it be said that the act of the conductor, in taking up the ticket, was wrongful toward the passenger. The company might take up their tickets wherever they chose, but they could not, by so doing, acquire the right to refuse to transport the passenger.

No question arises here whether it would have been proper for the plaintiff to attempt to force his way into the car at Poughkeepsie, without a ticket, if his entrance had been objected to on that ground. He went, into this car without objection, and in accordance with the custom of those travelers on the Poughkeepsie train who were going farther north. It follows,” as was said by the Court of Appeals, that if the plaintiff was entitled to a passage on the car in question, without the payment of any additional fare, his ejection therefrom was unlawful, That case seems to be closely analogous to the present. In the case of Weaver v. Rome, etc., R. R., the plaintiff was negligent. Paying for three tickets, he neglected to obtain more than two. And he was therefore at fault; like a passenger who loses his ticket. There was no injustice, therefore, in making him bear, so far as his right to travel went, the consequences of his carelessness. But in the present case, the plaintiff was not to blame. He yielded to the demand of the defendants, a demand which they had the right to make, it would seem, when he first entered the car at Sing Sing.

The decision of this case in the Court of Appeals, held that exemplary damages were not proper. And the charge of the judge at the Circuit on this trial, limited the jury to damages in compensation.

The judgment should be affirmed.

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

Judgment affirmed.

       Northern R. R. Co. v. Page, 22 Barb., 130 ; Vedder v. Fellows, 20 N. Y., 126.

       Hamilton v. Third Av. R. R. Co., 53 N. Y., 25.

         3 N. Y. S. C., 270.

       Northern R. R. Co. v. Page, ut supra.

       56 N. Y., 295.


text:
    EDMUND H. WATKINS, Appellant, v. TIMOTHY D. WILCOX AND OTHERS, RESPONDENTS.

      Religious corporation organized under act of 1813 — status of—when must be party to action—when one corpos'atoi' may bring action to set aside comeyanee made by it — right to rote.

    In an action brought to set aside an order changing the name of a religious corporation, the corporation must be a party.
    When property of a religious corporation is sold for its full value, and the only objection to the sale lies in alleged irregularities in the proceedings before the County Court, an action by a corporator to declare the conveyance made by the corporation void, will not be sustained.
    A corporation formed under section 2 of “ an act to provide for the incorporation of religious societies,” passed April 5,1813, is not an ecclesiastical corporation in the meaning of the English law; but "the majority of the corporator! have the right to control the corporate body in accordance with their beliefs, and they are free from any ecclesiastical restriction. It is a connection witlj the particular society, not with the denomination at- large, that gives the righj to vote.
    Appeal from a judgment in favor' of defendant, entered at tlnj Tompkins Special Term.
    The religious society which is the subject of controversy in thil action, was incorporated at Ithaca, New York, on the 8th day o| April, 1880, under the general act for the incorporation of religion! societies, passed April 5th, 1813. The corporate name of thl society was “ The Elders and Deacons of the Reformed Protestan! Dutch Church of Ithaca.”
    The ecclesiastical body, or church, established their ecclesiasticfl relations with the classis of Geneva.
    The plaintiff was a member of the congregation at the organizd tion of the society in April, 1830, and continued such member the society and church till December, 1872.
    The church body remained in ecclesiastical connection with tl classis of Geneva till December, 1872, when, by the unanimor vote of the church, except the plaintiff, and by the unanimous vof of the society, except the plaintiff!, this ecclesiastical connectic was severed.
    On the 17th day of February, 1873, a contract was made for til sale of the parsonage. • '

      On the 29th of March, 1873, the name of the society was changed by order of lion. D. Boardman, a justice of the Supreme Court, in accordance with chapter 464, Laws of 1847, and chapter 323, Laws of 1853.

      Samuel A. Foot, for the appellant.

      F. M. French, for-the respondents.
   Learned, P. J.:

The plaintiff asks for relief in several respects.

First. He asks that an order of a justice of this court, changing he name of a religious corporation, be declared void.- The corporation is not a party to this action, and he is only one of the orporators. It was not necessary that all the corporators should e heard upon that application. I do not see that he has any tanding in court on that point.

Second. He asks that an order of the County Court, authorizing íe sale of certain real estate of this corporation, together with the le in pursuance thereof, be declared void. The purchaser is a arty to this action.

There may be cases in which a corporator, making the corpora-on a party, can sustain an action in equity to declare a conveyance, íade by the corporation, to be void. Such would be a case of and and collusion between the purchaser and the officers of the rporation. There is nothing of that kind alleged. It is not •etended that ^ the property was not sold for a fair price and paid r tona fide; or that the avails were not applied as directed by the •der. The objections raised touch the legal regularity of the proedings before the County Court, and the validity of the deed. If e purchaser’s title be defective by reason of any of these matters, will be time enough to try that question when the corporation all bring ejectment against him. The plaintiff does not show mself to be wronged, when the corporation has received full paynt for property which they have, as he alleges, failed to convey a good and valid deed.

Third. He asks a judgment declaring that the persons who, previous to a day named, were members of a certain religious corporation, and who seceded that day, ceased to be members of said corporation. So far as the words, “ members of that church,” imply religious rights and privileges, we have nothing to do with the matter. So far as they imply civil rights —• that is, rights to property, or rights in a legal corporation — no judgment would be valid, because those persons are not parties. Furthermore, we are not to pass on the mere question, who were corporators at a certain time, until some one claims that his rights, as such corporator, were interfered with; and then we have only to do with his own ease.

Fourth. The principal matter however involved, is, the question-whether, or- not, certain of the defendants are now the lawful trustees of this corporation; and the principal relief asked is, that the transfer to them of the care of the temporal affairs should be held void, and that the consistory, as constituted in 1872, should be adjudged entitled thereto.

The incorporation in question was formed under section 2, of “an act to provide for the incorporation of religious societies,” passed April 5th, 1813, under the name of “ The Elders and Deacons of the Protestant Beformed Dutch Church of Ithaca.” It was in connection with the general synod of the Beformed Church in America, and with the classis off Geneva, an inferior ecclesiastical body connected therewith.

In July, 1872, a large majority of the church and congregation petitioned the classis to dismiss the church from its ecclesiastical connection. Nearly all the consistory did the same. A meeting of the consistory in October, 1872, with one only dissenting (the I plaintiff), requested the dissolution of the relation between the church and that classis. The matter was referred by the classis to a committee, who reported, and whose report was adopted April, 1873. In that report the committee state that the connec-1 tion between this church at Ithaca and the classis, “was and is I voluntary, and that either party has the legal right to terminate itl whenever such party shall think proper.” But the classis declined | to terminate the connection itself.

In December, 1872, a resolution was passed by the congregation,! recommending that the church sever its relations with the body with! which it was connected. The vote was twenty-three male persons ini favor, and one opposed; sixty of all present in favor,' and one opposed. The same day the church voted to disconnect itself from the classis of Geneva, and the general synod of the Beformed Church of America. The vote was sixteen male members in favor, and one opposed; and forty-six of all members, male and female present, in favor, and one opposed.

In February, 1873, the consistory of the church voted to confide the management of the temporal concerns to a body of nine trustees, under chapter 90, Laws 1835 ; and trustees were elected accordingly. Subsequently, an application was made to a justice of the Supreme Court for a change of the name of the church, and it ■ was changed accordingly to “The First Congregational Church of Ithaca, New York.” This application was in accordance with a unanimous vote, at a meeting where nearly all the members of the church were present.

In all this, how has the plaintiff been injured ? The change of name is not, of itself, -a change of religious doctrine or systems; although it may be significant of such a change. For instance, if the name had been changed to “The Catholic and Apostolic Church of Ithaca,” it would not follow that the defendants had adopted the Irvingite belief.

Then, as to the election of trustees to manage the temporal affairs of the church, that is a course quite consistent with the doctrines of the Dutch Beformed system, and adopted by some of their churches. In fact, the law was passed for their especial benefit.

The consistory, or the church, have elected or called a clergyman who is a Congregationalist. But it appears that clergymen of the Congregational order have, in other instances, preached in Dutch Beformed churches. The plaintiff, however, states that he cannot conscientiously worship with this Congregational church. This would, however, seem to be owing to a change in the form of worship, as there is no proof of any material change in doctrine.

But it may be well to examine this case on the broad grounds raised by the plaintiff’s counsel. In substance, these are, that, as the majority of the congregation have severed themselves from the old ecclesiastical connection, the property belongs to the minority. It is important to notice here, that the law of charitable uses has * no existence in this State. “ Corporations take and hold property only to the amounts, and,for the purposes prescribed by their charters or acts of incorporation.” And, in the act to provide for the incorporation of religious societies, the only purpose prescribed is to be found in section 4. There it is said that the trustees of every church, congregation or society, hold the real and personal estate “ for the use of such church, congregation or society, or other pious uses.”

So far, then, as the express language of the act goes, there is nothing which declares that the trustees hold the property for the ° support of the believers in any particular tenets. That act is one in all its scope. It provides for the incorporation of religious societies in three different cases: First, in the Protestant Episcopal churches; second, in the Dutch Deformed; third, in all others. In each instance it provides for the election of persons to be trustees. In the first, these are the rector, wardens and vestrymen; in the second, the minister, elders and deacons; in the third, those who are elected trustees. But in each case their authority is not by virtue of any ecclesiastical office; it is simply because the law declares them to be trustees. And section 4 speaks of all these trustees alike, giving them, in each case, the same powers.

I see no reason to think that the trustees of societies organized under one section of this act, have any different rights or authority from the trustees of societies organized under either of the other sections; or that any system was intended to be established under section 3, different from that established under sections 1 and 2. The counsel for the plaintiff urges strongly that the contrary is true, and that an ecclesiastical character is possessed by the societies formed under sections 1 and 2, which does not belong to those formed under section 3. But we must notice that there are many other large denominations which are as thoroughly organized, and are as much accustomed to have what, by a misnomer, are called ecclesiastical courts, as either of those denominations named in the first and second sections. Such, to name no others, are the Presbyterian, the Methodist Episcopal, the Lutheran. Now, the religious societies connected in belief with these organizations, must incorporate themselves under the third section of the act, and have done so. To take the Presbyterian denomination as an illustration : it has its session, presbytery, synod, and general assembly; very closely analogous to the consistory, classis, particular synod and general synod of the Dutch church.

And while it is not easy to measure ecclesiastical claims to jurisdiction, those of the Presbyterian denomination are probably as comprehensive as those of'the Dutch Reformed. Unless, then, there should be some very positive indication to the contrary, it would be unreasonable to think that any different rights or duties were given by the same act to the religious societies and their trustees incorporated by the Dutch Reformed, from those given to the societies and their trustees incorporated by the Presbyterians.

The act was intended to form a general system, and to make only such variations as would facilitate, in each denomination, the election of trustees, by harmonizing such election with old and existing customs.

I think, then, that the law of this case is settled by the decision of Robertson v. Bullions, and by the. cases which have followed the views there expressed. Religious societies are not ecclesiastical corporations in the meaning of the English law. They are civil corporations. The corporation consists not of the trustees but of the members of the society. And, in the language of that decision, “ it was the intention of the legislature to place the control of the temporal affairs of these societies in the hands of a majority of the corporators, independent of priest or bishop, presbytery or synod, or other ecclesiastical judicatory.” The doctrine laid down in that; case is affirmed, in language directly applicable to the present controversy, in the case of Petty v. Tooker, and again in Gram v. Prussia Society. It is followed in Burrel v. Associate Reformed Church. And whether these decisions were made in cases of corporations organized under the third section, or under the first and second, does not seem to me to have been considered important. The language of the decisions is general, and in no respect limited. And, if we examine the act in question, we shall find that all the provisions giving rights and powers to the trustees, are general; and that the only distinction is "in respect to the mode of election. Thus, section é, already • mentioned, defines the powers of the “ trustees of every church congregation or society hereinabove mentioned.” Section- 8 deprives the trustees of “ any church congregation or society,” of the power to fix the salary of a minister. Section 9 authorizes “any religious corporation,” etc., to reduce the number of its trustees. Section 11 gives the general power to apply for leave to sell real estate.

It is insisted that one qualification of a voter in corporations, under the second section, is to be a communicant in good standing, and that the members of this church have ceased to be such. The legislature, by the act of 1836, authorized any church in connection with the Reformed Dutch, to modify its system by electing trustees. It is not found by the referee that the persons who voted for these trustees were not members of that church in good standing.. The consistory of the church is the tribunal which decides on the standing of the members, and that body had not excommunicated any of these. Their right to vote was undisturbed. If we look at the first section of this act by way of illustration, we shall see that the right to vote depends on connection with the particular organization — the individual society. The voter is one “ who shall have belonged to such church or congregation,” etc,, “ or. by some joint act of the parties and of the rector, whereby,” etc. Thus it is a union or connection with the particular society, not with the denomination at large, which gives the right to a vote. The same is seen in section 3, qualified by section 7, making stated attendance and contribution the qualification. And analogy shows that, under the second section, the good standing which is said to be necessary under “the rules and usages,” is a good standing in the particular church or society. It seems to me, therefore, to follow from the decisions last above mentioned, and from the case of Holmes v. Mead, that the majority of the corporators have the right to control, and that they are free from any ecclesiastical restrictions, If there is anything contrary to this view in Watson v. Jones, or in the decisions of other States, it is not binding.

And I fully agree with the principle which thus seems to me to be established. In spite of written symbols, the beliefs of men change, and have changed; and I look with no favor on a rule which would permit the past generations to appropriate property to the support of their beliefs, so permanently as to deprive the present of the use of such property, in case those old beliefs shall have passed away.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and James, J.

Judgment affirmed, with costs.

      Laws 1853, chap. 323.

       Holmes v. Mead, 52 N. Y., 332.

       Laws of 1813, chap. 60.

       11 N. Y., 243.

       21 N. Y., 267.

         36 N. Y., 161.

       44 Barb., 282.

       Chap. 90.

       See, also, Austin v. Searing, 16 N. Y., 113.

         13 Wall., 714


text:
    JOHN C. BROWN, Receiver, etc., Respondent, v. EDWARD J. BURHANS, Appellant.

      Warrra/nty—when may exist with executory contract—Oameat empior—when language only descriptive.

    A warranty may exist in the case of an executory contract, when the defect in the property is incapable of discovery at the time of delivery. In such case the purchaser may retain the property and sue upon the warranty; but if the defect is open, visible, and notorious at the time of delivery, the purchaser is bound to reject the articles and refuse to receive them as a compliance with the contract, or he will waive his right td damages.

      Parks v. The Morris Axe Company (54 N. Y., 586) followed.
    Appear from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The plaintiff brought the action as the receiver of the property of Varner D. Perry, to recover a balance claimed to be due Perry for pine lumber sold to defendant. The referee found that, in the fall of 1869, Perry delivered to defendant, in Roxbury, Delaware county, 12,000 feet of pine lumber, for which defendant paid him thirty-live dollars per thousand. This lumber was good; called first and second qualities. After the delivery of this quantity, Perry entered into another contract with defendant, by which he agreed to deliver to him, at Roxbury, 100,000 feet of pine lumber, at the price of thirty-five dollars per thousand feet. Perry agreed that this lumber should be as good as the 12,000 feet previously delivered. That Perry, between November 1st, 1869, and July 1st, 1870, drew and delivered to defendant 116,000 besides the first 12,000. That defendant paid Perry for 100,292 feet of the lumber, at the rate of thirty-five dollars per thousand, and that 15,708 feet .were not paid for. That the defendant received this amount and converted it to his own use. That the 100,292 feet which was paid for, was, a large portion of it, of the third and poorer quality, and the average value thereof was ten dollars less per thousand feet than if it had been of as good quality as the contract called for: as good as the first 12,000. That said defendant examined and found fault with the 100,292 feet of lumber during the time it was being delivered, and on several different occasions notified said Perry that the same did not conform to the contract, and that he would not receive the same ; refused to let Perry leave such lumber on his premises, and ordered him to take it away. That, at the time defendant paid the last installment on the 100,292, he notified Perry that he made it under protest, and would sue him for the damages sustained by him in consequence of the lumber’s not being as good as Perry agreed to deliver. The referee also finds that the 15,708 feet were of the second, third and fourth qualities, and worth only about twenty dollars per thousand. That Perry claimed that the lumber cost thirty dollars per thousand at the mill, and all he wanted was five dollars per thousand for drawing it, when, in fact, it cost but twenty-six dollars per thousand, and that defendant knew this at the time he paid Perry.
    The referee found, as conclusions of law, that defendant, having I accepted and paid for 100,292 feet at the contract-price; having had full opportunity to examine the same, and with full knowledge of I its defects, and not having returned or offered to return the lumber, I but having converted the same to his own use, was presumed, in law, I to have acquiesced in its quality, and his right to recoup or counter-1 claim damages did not survive such acceptance. That defendant,I having paid Perry for lumber at thirty-five dollars per thousand, with knowledge that it only cost him twenty-six dollars at the mill,I was thereby estopped from recouping damages on account of anyl misrepresentations made by Perry in that particular. That there was no special bargain made as to price of 15,708 feet, and thd defendant was, therefore, obliged to pay what it was actually worth I

      Gilbert & Maynard, for the appellant.
    The vendee in an executory contract of sale, with warranty as to the quality of the article contracted for, upon receipt of the article and subsequent discovery of a breach, is not bound to return or offer to return the property, but may retain and use the same, and have his remedy upon the warranty. (Day v. Pool, 52 N. Y., 416.) Upon a sale of goods, to be delivered at a future day, with an express warranty as to quality, the right of action for a breach survives the receipt and use of the goods without notice of defects, or offer to return. (Waring v. Mason, 18 Wend., 425 ; Voorhies v. Earl, 2 Hill, 288; Cary v. Graman, 4 id., 625; Burne v. Dodd, 5 N. Y., 95; Reed v. Randall, 29 id., 358; Foote v. Bentley, 44 id., 166; Muller v. Eno, 14 id., 597; Bennett v. Cook, 45 id., 265.)

      George Adee, for the respondent.

      “ The defendant, having accepted and paid for 100,292 feet of pine lumber, at the contract-price, and having had full opportunity to examine the same, with a full knowledge of its defects, and not having returned, or offered to return said lumber, but having .converted the same to his own use, is presumed, in law, to have acquiesced in its quality, and his right to recoup or counter-claim damages does not survive such acceptance.” This was a parol executory contract for the sale and delivery of 100,000 feet, or more, of pine lumber, at thirty-five dollars per thousand, and although, perhaps, void by the statute of frauds at its inception, yet it was rendered valid and binding upon the parties by a subsequent delivery and acceptance of the lumber. (1 Wait's Law and Practice, 472, and cases cited; Sprague v. Blake, 20 Wend., 61; Flanagan v. Demarest, 3 Rob., 173; Warran v. Van Pelt, 4 E. D. Smith, 202; McKnight v. Dunlap, 5 N. Y., 537.) In cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages, on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by the vendee after opportunity to ascertain the defects, unless notice has been given to the vendor, or the vendee offers to return the property. (Reed v. Randall, 29 N. Y., 358; Parks v. Morris Axe and Tool Co., 54 id., 586, 590; Pomeroy v. Shaw, 2 Daly, 267; Fisher v.
      Merwin, 1 id., 234; Rust v. Eckler, 41 N. Y., 488; Peterson v. Ayers, 24 E. L. and E., 382; Weaver v. Wisner, 51 Barb., 638; Leavenworth v. Packer, 52 id., 132 ; Fitch v. Carpenter, 43 id., 40, per Miller, J.; Delafield v. DeGraw, 9 Bosw., .1; S. C., 3 Keyes, 467; Pike v. Nash, 1 id., 335; Fisher v. Samunda, 1 Camp., 190; Hopkins v. Appleby, 1 Stark., 477.) A refusal to receive means never to receive, unless there should be a subsequent arrangement, or some understanding made between the vendor and vendee. (Sprague v. Blake, 20 Wend., 60, and cases cited; Reed v. Randall, 29 N. Y., 358, 365-367; Hargons v. Stone, 5 id., 73, 86; Howard v. Hoey, 23 Wend., 351; Hart v. Wright, 17 id., 277; S. C., 18 id., 449 ; 2 Kent’s Com., 480; Chanter v. Hopkins, 4 Mees. & Welb. [Exch.], 399.)
   Boardman, J.:

I think the judgment should be affirmed. In my judgment there is no warranty. The language used in making the contract was simply descriptive. It would have been the same if Perry had said, I will sell you 100,000 feet of first and second quality of lumber, and delivered the same lumber in performance. In such a case, Reed v. Randall would control.

But if it can be said that there' is a warranty, still a warranty does not apply to open and visible defects. The principle expressed in Parks v. The Morris Axe Co. is, that a warranty may exist and be enforced in the case of an executory contract, when the defect in the property is incapable of discovery at the time of delivery. Under such circumstances, the purchaser may retain the property and sue upon the warranty. But if the defect is open, visible and notorious, at the time of delivery, the purchaser is bound to reject the articles, and refuse to receive them as a compliance with the contract, or he will waive his right to damages. If I sell a horse with warranty of soundness, he having one ear off, and the purchaser accepts him, seeing the defect, he cannot afterward sue for such defect, and recover damages therefor. So in this case, the purchaser received this lumber with full.knowledge that it was inferior to that contracted for and paid for, and converted the same to his own use. The case last cited, and others of like import, all recognize a distinction between the acceptance of articles with latent defects, and those having open and visible defects.. In the latter case, the purchaser should be estopped from claiming damages where he had accepted the property under a contract, with full knowledge of the facts.

The referee does not find any warranty. The evidence does not establish a warranty. The defendant did not rely upon a warranty when he accepted the lumber, because he then knew the lumber was defective. Perry did not own the lumber when the contract was made. He bought it to make his profit by teaming. Under all these facts it would not be fair dealing to allow defendant to take the lumber and pay for it on the contract, and then maintain an action for damages upon a claim of warranty.

I think the judgment should be affirmed, with costs.

Learned, P. J., concurred.

Judgment affirmed.

      29 N. Y., 358.

       54 N. Y., 586.

       Schuyler v. Russ, 2 Caines, 203; Wilbur v. Cartright, 44 Barb., 536; Jennings v. Chenango Insurance Co., 2 Den., 79; Birdseye v. Frost, 34 Barb., 367; see also Rust v. Eckler, 41 N. Y., 488.