author: Learned, P. J.:

text:
    CAROLINE W. LAWRENCE, Individually and as Executrix and Trustee under the Will, etc., of HENRY LAWRENCE, Deceased, and Others, Appellants, v. THE SARATOGA LAKE RAILWAY COMPANY, Respondent.

      Facts admitted by stipulation need not be proven — when a party cannot dispute the title under which he claims — specific perfoi'mance of a contract to build a bridge or railroad station — when it is not too indefinite to admit of specific perfoi'mance— when a railroad will be compelled to perform an agreement to stop at a station — power of the court to award damages on denying a specific pwfoi’mance.

    During the pendency of this action, brought to compel the specific performance of an agreement relating to the sale of real estate, the original plaintiff died. Thereafter, upon a stipulation signed by the defendant’s attorneys admitting that the present plaintiffs had succeeded to the interest of the deceased plaintiff, an order was entered reciting the fact of such succession and substituting them in his place.

      Held, that it was not necessary for the present plaintiffs to show upon the trial that they had succeeded to the title of the original plaintiff.
    The defendant took possession of the land under an agreement made with the original plaintiff, and still continued in possession by virtue thereof.

      Held, that it could not dispute the validity of the plaintiff’s title or insist upon proof establishing the same.
    The defendant entered into possession of land belonging to the plaintiff, under two written propositions made by the plaintiff, at the request of the defendant’s agent, and constructed tracks and structures thereon so that the land could not be restored to the plaintiff in its original condition.

      Held, that the court might compel specific performance of the contract by the defendant, although no written contract had been signed by the defendant.

      By the terms of the propositions, so accepted by the defendant, it was provided, among other things, that a bridge should be by the defendant ‘ ‘ constructed and maintained over railroad at old highway at my (plaintiff’s) east line.”

      Held, that as there could be no difficulty in determining where the old highway was, and as it was apparent that a bridge, suitable for a highway crossing, was what was intended by the parties, the contract was sufficiently definite and' • certain to enable the court to decree a specific performance thereof.
    The defendant was further required thereby “ to construct and maintain a neat and good bridge near the west end of what is described on map as ‘ potato field ’ for an ‘ overhead ’ drive across ” its road.

      Held, that the failure to specify the size of the bridge, and the materials of which it was to be constructed, did not render the contract so indefinite and uncertain as that its specific performance could not be decreed.
    The contract further provided that the defendant should “ simultaneously with the construction of said railroad, erect at or near the Excelsior spring, owned' by me (the plaintiff), a neat and tasteful station building for the accommodation of passengers to and from said spring, which shall be a regular station of the road, and all regular trains shall stop at said station, the name of which shall be ‘Excelsior Spring Station.’ ”

      Held, that the defendant could and should be compelled to specifically perforin the said agreement.
    That although under the agreement the defendant could not be, compelled to run trains upon its road, yet it might properly be enjoined from running any regular trains which did not stop at the station.
    The cases holding that, where a specific performance cannot be granted, the court may retain the case and award to the plaintiff the damages he has sustained, collated per Learned, P. J.
    Appeal from a judgment entered at a Special Term dismissing the complaint in tliis action.
    The action was brought to enforce the specific performance of a contract made by the defendant with the jilaintiff’s testator for the purchase of lands, now occupied by the defendant with its railroad tracks. In July, 1880, Henry Lawrence was the owner of a tract-of land in the north-east part of the village of Saratoga Springs, upon which was situated his residence, a large boarding-liouse known as the Mansion House, a mineral spring known as the Excelsior Spring, with its bottling-houses and appurtenances and other improvements.
    The Saratoga Lake Railway Company desired to acquire a right of way through these premises, and prepared a map showing their proposed route and the land they, desired, amounting to about four and a-half acres, and asked Mr. Lawrence for a proposition, in writing, of the terms upon which he would give such right of way to the ■company.
    Mr. Lawrence then gave to W. L. Burt, the defendant’s agent, an instrument which provided, among other things, as follows : “ Bor and in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, I, Henry Lawrence, of Saratoga Springs, N. Y., do hereby agree to convey to William L. Burt the right of way, sixty-six feet in width, through my lands in the valley from East avenue to my east line— to lay and construct a double track ■railroad from the village' of Saratoga Springs to Saratoga Lake upon the following conditions, however:

      “ Said Burt shall, simultaneously with the construction of said railroad, erect, at or near the Excelsior Spring owned by me, a neat and tasteful station building for the accommodation of passengers to and from said spring, which shall be a regular station of the ■road, and all regular trains shall stop at said station, the name of which shall be ‘Excelsior Spring Station.’” * *
    That thereafter the said William L. Burt, for and on behalf of the said defendant, and on or about the 28ch day of August, 1880, again applied to the said Henry Lawrence and stated to him, in substance, that the said defendant had concluded to build said railroad under the grade of Spring avenue, at the same time showed ■and delivered to him a map prepared in the office of and signed by ■the chief engineer of said defendant, representing the proposed line of said railroad across the lands of said Lawrence, which is the same on which said railroad was afterwards built, and which map was dated August 28, 1880, and entitled “ map of the lands of the Excelsior Spring Company proposed to be taken by the Saratoga Lake Railway Company,” and asked said Lawrence to give him a proposition, in writing, of the terms and conditions upon which he would consent to the modifications of the terms and conditions contained in the paper dated July 31, 1880, so as to allow the said railroad to be built under the grade of Spring avenue as aforesaid, and on the line designated on said map. Hpon said map, when so delivered, a point on the said lands of said Lawrence, outside of but near to the line of said proposed railway, was designated “ depot and station.” The said Lawrence, pursuant to the request of the said William L. Burt, mentioned in the last finding, prepared and delivered to the said Burt a proposition, in writing, of the terms and conditions on which he would consent to -the-modification of the said paper, dated July 31, 1880, in the respect above mentioned, which proposed modification is the following,, among others, viz.: “ You are to construct and maintain a neat and good bridge, near the west end of what is described on map as ‘ potato field,’ for an £ overhead ’ drive across your road. Spring avenue is to be terraced or sloped from a line two feet west of present footpath, so as not to injure said footpath or the double row of trees. * * * 'pjjg present footpath to, remain as it is, except at the crossing of railroad, where neat and suitable steps are to be constructed and maintained by the said Burt or assigns, leading from each side up over the railroad bridge and down to the station. If desired, a bridge is to be constructed and maintained over railroad at old highway at my east line.”
    The defendant accepted these propositions and entered into the possession of the described right of way; commenced building their road with its cuts and embankments, and have since finished it.
    The defendants failed to complete the work on Spring avenue as provided in the contract, but left it in such a rough, unsafe and improper condition that Mr. Lawrence was compelled to expend $3,194.40 to put it in the condition required by the contract. The-court held that the plaintiffs were entitled to recover this amount. The defendant has wholly neglected to erect a station-house or stop its trains as required by the contract, and has neglected and refused to build bridges for crossing at two of the places designated in the contract. The defendant has so altered and changed the face ol the property, by digging ditches, building embankments, cutting-down trees and changing water courses, that the premises cannot be restored to their former condition.
    The court found, among other conclusions of law, that damages-would not adequately compensate plaintiffs for defendant’s failure to fulfill the said agreement, and justice and equity required that the same should be specifically performed by the defendant. That the agreements referred to in the finding are so indefinite and uncer tain, and relate to the performance of business of such a nature and continuance, that the court cannot direct specific performance. That the plaintiffs’ complaint should be dismissed, without costs and without prejudice to any action or proceeding that plaintiffs, or any of them, may see fit to institute by reason of any of the matters which have come in question in this action.

      Gharles S. Lester, for the appellants.

      A. Pond, for the respondent.
   Learned, P. J.:

The objection that the present plaintiffs have not the title to the land, or did not succeed to the title of Henry Lawrence, is not well taken. After his death pending the action, a stipulation was signed by defendant’s attorney that the present plaintiffs had succeeded to his interests. And on that stipulation an order was made reciting the fact of such succession and ordering the substitution. That is sufficient. Nor is the objection well taken that Henry Lawrence is not alleged or proved to have been the owner in fee. No dispute arose on that point. The defendant took possession under him and by virtue of his title, and is in possession only by virtue of his title. When called on to perform its contract it cannot retain possession and deny his title.

The objection that the defendant did not sign any contract is not valid. The contract consits of two written propositions made by Lawrence at the request of Burt (who either acted for defendant or to whom the defendant succeeded). The defendant accepted the propositions and acted upon them, entering into the premises of Lawrence by and under the same. And the defendant has proceeded to construct its track ar 1 to do many other acts, making permanent changes upon the land; so that the land cannot be restored to plaintiffs in its original condition. These facts are a ground for the enforcement of a contract, although it is not in writing. The reason is, that it would be a fraud for the vendor to permit the vendee, under a verbal contract, to make permanent improvements, and then to deprive the vendee of the land by ejectment. And rights must be mutual. If then a vendor cannot refuse performance when the vendee has entered and made improvements; conversely the vendee cannot refuse to perform in such a case, on the ground that the contract was verbal.

Again, it is true that a verbal contract, must be definite in order to entitle either party to specific performance. An indefinite contract cannot be enforced, because the courts do not know what the parties agreed to. In the present case the contract is in writing. It is distinct and definite. The situation of the road was indicated in a map given in evidence. The circumstance that this map is not attached to the judge's decision did not prevent him from taking it into consideration, and from giving a judgment based upon the map and the other evidence.

The learned justice foimd that the defendant had neglected and refused to perform three things, which, by the terms of the contract, it was plainly bound to do. He held that damages would not adequately compensate the plaintiffs for this neglect and refusal, and that equity required that the contract should be specifically performed; that unless the whole contract could be specifically performed, no degree for specific performance of a part could be made ; that the agreements as to those three things were so indefinite and uncertain, and related to business of such a nature and continuance, that specific performance could not be adjudged. He dismissed the complaint without pi-ejudice to any action by the plaintiffs.

One of the three things was to construct and maintain a bridge over the railroad at the olu highway at Lawrence’s east line. We see nothing indefinite in this. There can be no difficulty in determining where the highway is. To insist that the railroad cannot build a bridge because they do not know whether it should be of wood, or iron, or gold, or platinum, is a poor excuse. A bridge suitable for a highway crossing is what is intended, and that is - definite enough. (Jones v. Seligman, 81 N. Y., 190.) If defendant were willing to perform its agreement, it would have no difficulty in understanding its obligations.

Another thing to be done is similar : to construct and maintain a neat and good bridge near the west end of the potato field, for an overhead drive over the railroad. It is not shown that .the situation of the potato field cannot be determined, or that there is doubt which is its west .end. Indeed, by the opinion of the learned justice it appears that the map given in evidence gave the places where the bridges were to be placed. But the defendant’s objection, is that the size and material are not specified. We .do not see why uroof might not be given as to the size and material suitable and proper for bridges at those places, and for the purposes indicated. It is often the case that proof of surrounding circumstances is •needed to explain a contract. The learned justice, in his conclusions, holds that the defendant is bound by the provisions of the 'contract, and can only hold the land by performing its agreement, and that justice and equity requires that these provisions should be specifically performed. But 'if these provisions are so indefinite that the court cannot decide whether or not a pretended performance is a real performance, then how can the defendant be bound ? We have these two alternatives: either the agreement is so indefinite that the court cannot determine when it has been performed. In that case it is void, and the def endants must surrender up the land. Or it is definite enough for the court to decide whether it has been performed. In that case defendants should be made to perform, unless there be some reason to the contrary. Plainly the •defendant, who has taken possession of the land under this contract, cannot be permitted to say that the contract is so indefinite •that the defendant cannot perform its side of the contract, but that without performing the defendant will keep that land for which the performance of the contract was the consideration.

The third thing to be done by defendant was to erect at or near Excelsior Spring a neat and tasteful station building for the accommodation of passengers to and from said spring, which should be a regular station, and to have all regular trains stop at said station; .the name to be Excelsior Spring Station.

The same argument in regard to this building is urged by defend-ant, viz.: that the words “ a neat and tasteful station building for the accommodation of passengers to and from said spring,” are too indefinite. But it is found as a fact .that the defendant has built .station buildings for similar purposes; one about 4,000 feet east and the other about the same distance west of the spring. Would there be any difficulty on defendant’s part in building one at the plaintifE’s spring ? And would it not be easy for a court or a jury, to -decide whether a building was a fair and reasonable performance of this agreement, or was a fraud and an evasion ?

It is urged that equity will not enforce specifically a contract to build or repair. (See Story Eq., § 726, etc.: Beck v. Allison, 56 N. Y., 366; Pomeroy’s Eq., § 1402».) Of course, the evident reason of this rule is that usually damages are a sufficient remedy.. The plaintiff can build or repair, and sue for the amount expended. Put there are instances where the reason does not exist; and where the plaintiff cannot himself build or repair; and in which damages would not be sufficient. Mr. Pomeroy, in his note, makes four-classes of exceptions; the second is where the defendant has contracted to construct some work on his own land, and the plaintiff has an interest which cannot be compensated in damages. An instance is Storer v. Great Western Railway Company (2 Y. & C., 48). The third is where the defendant has contracted to construct works on land acquired from the plaintiff, and the fourth is where there has been a part performance so that the defendant is enjoying the benefits in specie. This is illustrated by the case of Stuyvesant v. Mayor (11 Paige, 414). Mr. Pry makes similar exceptions. (Fry’s Specific Perf., § 81.)

. In the present instance every one of these three exceptions is combined. The contract has been so far performed that the defendant is enjoying the land itself The land was obtained from the plaintiff upon the agreement to make this building; and the building is to be made upon the defendant’s own land (that is land which belongs to defendant in equity, and of which it is in possession), and the plaintiff has a material interest not susceptible of compensation in damages. The plaintiffs cannot build the station building or the bridge, because defendant is in possession. And it is-evident that to estimate plaintiffs’ damages is exceedingly difficult. Plaintiffs have a spring, to which they desire that passengers shall come. Plow is it possible to estimate how many, who would come-if there were a station building, do not come when there is none ?

In addition to the case above cited we may refer to Lytton v. G. N. R. W. Co. (2 Kay & J., 394); Greene v. W. C. Ry. Co. (L. R., 13 Eq., 44); Sanderson v. Cockermouth, etc., Ry. Co. (11 Beav., 497).

The case of Wilson v. Northampton and B. J. Ry. Co. (L. R., 9 Ch. App., 279) is instructive on account of the reasons given for refusing specific performance. In that case there was an agreement ío “ erect, set up and construct a station,” and the defendant violated the agreement. The court held that it had jurisdiction; but that as there was no agreement respecting the stopping of trains, it might be of no benefit to decree specific performance; that the plaintiff would have better redress by way of damages; that a jury might take into account the probability that the defendant would have used the station and the probable benefits to plaintiff’s estate; and that the court in assessing damages could do the same. In the present case the agreement not only provides for building a station-house, but also provides that all passenger trains shall stop there. Thus the case of Wilson v. N. and B. J. Ry. Co. becomes an authority in plaintiffs’ favor.

The defendant urges that the whole contract must be enforced,' or no part of it will be. That rule does not apply where the part which cannot be enforced is separable from the other. Where a vendor is unable to completely perform his contract, it is true that the ordinary rule is that the vendee will not be compelled to^ accept a part. Yet even to this rule there are exceptions, notably when one part is separable from the other. (Ogden v. Fossick, 4 DeGex., F. & J., 426; Powell v. Elliot, L. R., 10 Ch., 424; Wilkinson v. Clements, L. R., 8 Ch. App., 96.) But, on the other hand, when the vendee claims performance and the vendor is unable to make complete performances, the vendee is allowed to have all he can get, with compensation for the deficiency. (Morss v. Elmendorf, 11 Paige, 277.) The principle is, that the party who-is not in fault shall be entitled to a specific performance of as much of the contract as the other can perform. Here the plaintiffs are not in fault, and the defendant willfully refuses to perform. There is no reason why the court should not compel a specific performance so far as this can be done. (Story’s Eq., 774, 779 ; Pomeroy’s Eq., § 1407 n.) A further matter is the agreement to stop all passenger trains at this station. Some objection has been made to the granting of specific performance where the contract requires continuous personal action running through an indefinite period of time. (Marble Co. v. Ripley, 10 Wall., 339.) But the propriety of granting this relief in a case like the present was recognized in Phillip v. Great Western Railway Company (L. R., 7 Ch. App., 409). Although it was held that a train carrying mails was not “ under the control ” of the company, and, therefore, the relief was denied. (See, also, Rigby v. G. W. Ry. Co., 2 Phillips, 44.)

In the case of Blanchard v. Detroit, etc., Railroad Co. (31 Mich., 43), cited by defendant, the court held that the clause in the deed relied upon by plaintiff was only a condition subsequent, not a covenant. Having decided that there was no covenant on the part of the defendant, they proceeded obiter to say that the court would not grant specific performance of a covenant to build a depot, and to stop at it at least one train a day. In the cases of Port Clinton Railway Company v. Cleveland and Toledo Railway Company (13 Ohio State, 544), there were two actions, and the court held that neither plaintiff had such a standing as to support its claim for relief. In McCann v. South Nashville Railroad Company (2 Tenn. Ch., 773), it was held that there was no contract to run cars at proper intervals; that plaintiffs were not parties to the arrangement -and that they had not contributed thereto. It will thus be seen that none of these cases are directly in point. And it may be noticed that there are instances in which courts do require defendants to do acts which run through a considerable time, as when they adjudge that a defendant pay alimony.

Further still, most final injunctions are perpetual. There is no difficulty in adjudging that a defendant shall not, for instance, erect a house above a certain height, where to exceed that height would interfere with plaintiff’s easement. It is not thought to be any ■objection to that relief that its effect is to retain the action in court perpetually. Now, in the present case, it will be seen that the defendant did not agree to run any train whatever over its road. No decree of specific performance, requiring the defendant to run trains, is therefore needed, or asked for, or proper. All that is required is that the defendant be enjoined from running any regu- ' lar trains which do not stop at this station.

Certainly there is seldom a case which calls more strongly for the active aid of the court than the present. A corporation gets possession of the plaintiff’s land by his consent, and on terms to which they agree ; it pays nothing for the land, and is spared the trouble and expense of proceedings to condemn ; and then, when in possession, it refuses to perform the things it agreed to do. And it makes no excuse whatever. It seems to hope by delays and technicalities to weary out the perseverance of the present plaintiffs, as it has succeeded in making this action outlive the original plaintiff. The case is another instance showing that the managers of corporations will unblusliingly do what, in an individual, they would at once condemn as rank dishonesty.

• The Special Term was of the opinion that the relief of specific’ performance could not be granted, and dismissed the complaint without awarding damages. In the view we take it is not necessary ' to decide whether the court can award damages, when it is of the opinion that specific performance cannot be had. That was the course taken in Wilson v. N. and B. J. R. Co. (ut supra). (But see Story Eq., § 794 et seq.; Beck v. Allison, 56 N. Y., 366; Henderson v. N. Y. C. R. R. Co., 78 id., 423; Matthews v. D and H. Co., 20 Hun, 427; Code §§ 968, 969; Bradley v. Aldrich, 40 N. Y., 504; Seeley v. N. Y. Nat. Ex. Bank, 8 Daly, 400; affd., 78 N Y., 608.)

At any rate, whether or not there could be a recovery of damages in the ordinary meaning, it would be just and equitable to enjoin defendant from using the road over plaintiffs’ land until it had paid the damages which plaintiffs have sustained in doing that which defendants ought to have done. This case comes to us only on the findings of the court, and the plaintiffs ask that we modify the judgment by giving the relief to which they are entitled. We do not think that this can properly be done. Evidence may be needed at the trial to explain the circumstances surrounding the agreement; the time needed for the construction of the bridges and station; the exact place as shown on the map, etc.

We therefore reverse the judgment and grant a new trial, costs to abide event.

Present — Learned, P. J., Bookes and Landon, JJ«

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


source: Caselaw Access Project

author: Leajbnjsd, P. J.:

license: Public Domain

text:
    LEWIS S. WHEELER and DRUSILLA WHEELER, as Executors, etc, of SYLVESTER WHEELER, Deceased, Plaintiffs, v. ROBERT C. BENEDICT and ALBERT M. FULTON, Defendants.

      Bight of a surety to compel a creditor to sue the principal debtor — in order thereby to release the surety the solvency of the debtor must be shown — estoppel in pais — to render it available the party must show injury resulting-from having acted upon it.

    Where a surety seeks to escape liability by reason of a request made to the creditor to sue the principal debtor, and the subsequent neglect of the creditor to collect the debt, he must show that at the time of the request the debtor was solvent and able to pay the debt, and that he thereafter became insolvent and unable to pay it.
    In May, 1879, the defendant, a surety upon a note given by two other persons, dated February 27,1877, and payable one year after date, requested the holder thereof, the plaintiffs’ testator, to sue the makers. In January, 1880, the defendant asked the testator if he had collected the note, reminding him that he had been required to do so the previous spring. The testator then said that he had seen the principal debtor, who had said that he was good; that he, the testator, thought he would let it stand; that the defendant then said: ‘ ‘ Then I suppose I am released as surety? ” and the testator said “yes, I do not consider you are holden for it.”

      Held, that in the absence of evidence tending to show that the debt could then have been collected, or that the defendant was then ready to pay the note and collect the debt from the debtor, and was induced by the said remark of the testator to refrain from so doing, the said statement did not estop the testator from subsequently maintaining an action against the surety to collect the amount due upon the note.

      Kingsley v. Vernon (4 Sand., 361), distinguished.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiff at the circuit.
    The action is upon a promissory note executed by R. C. Benedict and James H. Strong, as principals, and by the defendant, A. M. Eulton, as surety, to Sylvester Wheeler, the plaintiff’s testator, dated February 27, 1877, for $600, payable one year after date. In the month of May, 1879, Fulton demanded of Wheeler, the owner of the note, that he should collect the same from the principal debtors. Wheeler made no effort to collect the note, and on the 3d day of January, 1880, Fulton again called upon Wheeler, when the latter said to him that he had had an interview with Benedict ■and was satisfied that he was good. Wheeler continued to hold the note until he died, in the spring of 1884. On March 12, 1881, Strong and Benedict, the principal debtors, failed in business and made a general assignment. The assets paid less than twenty per cent of the liabilities. •

      Butts <& Merritt, for the plaintiffs.

      T. F. Bush, -for the defendants.
   Leajbnjsd, P. J.:

When a surety would escape liability by reason of request to the creditor to sue the principal debtor and subsequent neglect, I think he must also show that the principal debtor was solvent and able to pay the debt at the time of the request, and that he has since become insolvent and unable to pay. (Colgrove v. Tallman, 67 N. Y., 99.) The doctrine is questionable enough, even with that -qualification. (Hunt v. Purdy, 82 id., 486; see, also, Marsh v. Dunckel, 25 Hun, 167.) The ground of this defense must be the loss which the surety has actually sustained, and loss must be shown.

In the present case the request to sue was in May, 1879. Thus we have proof of an assignment by the principal debtor in April, 1881, under which the assignee paid less than twenty per cent. Now we do not see how the condition of the principal debtor, two years after the notice was given, can be proof that he was solvent at that former date. What property he then owned and what -debts he then owed do not appear. • Some deeds were given in evidence of an earlier date. But, without proof of the ratio between debts and liabilities, the mere fact that a person has a title to some land shows little or nothing. The defendants’ counsel, however, urges another view. The testimony is that Fulton, the surety, in January, 1880, asked Wheeler if he had collected the note, reminding him that he had been required to do so the previous spring; that Wheeler said he had seen the principal debtor and that such debtor said he was good ; and that he, Wheeler, thought he would let it stand; that Fulton then said: “ Then I suppose I am released as surety,” and Wheeler said: “Yes, I do not consider you are holden for it.” By this conversation and statement the defendant claims that Wheeler is estopped. There is no evidence that Fulton was ready to pay the note, or that by the remark of Wheeler he was induced to refrain from paying it and then collecting the amount from the principal; or that he could then have collected the amount from the principal if he had himself paid Wheeler.

In Kingsley v. Vernon (4 Sandf., 361), relied on by counsel, the indorser of a bill, on going to pay it, was informed by the holder that it had been paid, and by such information he was prevented from paying the bill and then collecting it. It could have been collected at that time from the acceptor, who afterwards became insolvent. Held, the indorser was discharged. Of the same character is Harris v. Brooks (21 Pick., 195).

Take the definition of estoppel in Muller v. Pondir (55 N. Y., 334), and it will be seen that one element must be that the statement has influenced and induced action (or we may also say, prevented action), from which loss and injury will accrue if a retraction is allowed. Here, then, the defendant fails. He does not show that the statement induced or prevented action, nor does he show that loss or injury would accrue. The defendant’s counsel insists that it is to be presumed that loss or injury would accrue, relying on the-principle of Knights v. Wiffen (L. R., 5 Q. B., 660. But there is a difference. In that case the defendant had sold barley to M.; not delivered or paid for. M. sold part to the plaintiff, who paid M. therefor, and received a delivery order, which was presented to the defendant. He said it was all right and he would deliver. M. became bankrupt without having paid defendant, and defendant refused to-deliver to plaintiff. It was enough that defendant had acknowledged plaintiff’s right to the barley; and defendant was estopped. For it was said that, if defendant had not acknowledged plaintiff’s right, plaintiff would at once have sought a remedy against M. Similar to this is Voorhees v. Olmstead (66 N. Y., 113).

But the present case is different. Even if Wheeler had not said to Fulton, “ I d'o not consider you holden for it,” it is by no means-certain that Fulton would have then paid Wheeler and sued Benedict. Lie could secure himself only by first paying Wheeler. After such payment he could sue Benedict. And he does not show, nor are we to presume, that by reason of Wheeler’s statement,. lie neglected to take the steps which, at that time, might have saved him from loss. This is quite different from the case of a man who buys and pays for personal property, and when he endeavors to get-possession learns that the vendor has no title. He is in a condition: at once to sue the vendor. Fulton could not sue Benedict until he-had himself paid Wheeler, and this there is no proof that he was ready to do.

We think, therefore, that without further proof than was giveny the statement of Wheeler was not an estoppel, and that the defendant does not bring himself within the principle of Kingsley v. Vernon.

Motion for new trial denied and judgment ordered for plaintiff on verdict, with costs.

Present — Learned, P. J.; Bookes and Landon, JJ.

So ordered.


text:
    FREDERICK C. RANKINS and CHARLES F. RANKINS, Respondents, v. HERMAN C. GRUPE, Appellant.

      ■Agreement to resell property received in payment of a debt — when void under the statute of frauds.

    April second the plaintiffs sold and delivered to one Ansicker two barrels of barbed wire worth sixty dollars. On April fifteenth Ansicker, not having paid for the wire, agreed to return the wire to fhe plaintiff in payment of the debt owing for it, the wire to be delivered the next day. Thereafter and on the: same day Ansicker made a general assignment for the benefit of creditors.

      jBeld, that the agreement between Ansicker and the plaintiff was in fact a sale and therefore void under the statute of frauds, and that the title to the wire passed to the assignee.
    Appeal from a judgment of the County Court of Schenectady county, affirming a judgment of a justice of the peace in favor of the plaintiffs.
    The action was brought to recover the possession of two barrels-, of barbed wire worth sixty dollars, sold by the plaintiffs to one; Ansicker, the defendant’s assignor. The plaintiffs claimed that the-property had been reconveyed to them on April fifteenth, prior to the making of the assignment.

      Yates (& Cutler, for the appellant.

      Jacob W. Clute, for the respondents.
   Learned, P. J.:

The plaintiffs had sold and delivered the wire to Ansicker on the second of April, and it thus had become his property. The plaintiffs had not even a right of stoppage m trcmsitu. All they had was the debt which Ansicker owed them for the wire. When, therefore, they went to Ansicker on the fifteenth day of April and he agreed to return the wire in payment of the debt, the agreement was one of sale to them. It was not the annulling of an executory contract. The wire was not delivered, and was not to be delivered, till the next morning. It was not paid for by plaintiffs, for they did not release the debt owing to them.- They only agreed to accept the -wire in payment of the debt. This was merely a contract executory. Even without regard to the statute of fraud's, it is quite doubtful whether by this arrangement any title to the wire passed to the plaintiff. Certainly under the statute (the wire being worth over sixty dollars) they acquired no title. Before the next morning Ansicker had made an assignment to the defendant and had.delivered the wire, with other property, to him. The plaintiffs, therefore, have no right of recovery, even admitting that the assignment was not executed until after the agreement between them and Ansicker.

' Judgment of County Court and of justice reversed, with costs.

Present — Learned, P. J.,'Bocees and Landon, JJ.

Judgment of County Court and of justice of the peace reversed, with costs.


author: Learned, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THOMAS W. CUSHING, Respondent.

      ^Surety upon a bond — effect of the acceptance from the principal of a new bond — when the sureties upon the first bond will still continue liable.

    In 1880, the canal board, in accordance with its usual custom, designated as one of the banks to receive the deposits of the State moneys the First, National Bank of Buffalo. On March 30, 1880, the defendant, with other persons, executed a valid agreement, joint and several in form, to the people, covenanting and agreeing that the bank should well and faithfully do and perform all things contained in an agreement made by it with the State as to such deposits, and well and faithfully account for and pay over all moneys on deposit in the hank at the time of the execution of the bond, or due or to become due therefrom to the people of the State of New York. There was then on deposit in the said bank to the credit of the State the sum of $5,000, and at the end of the year there was a balance due the State of $73,000.
    March 31, 1881, the bank was again designated to receive the deposits, and an agreement similar to the first was prepared and executed by all of the former sureties except the defendant in this action, and by one new surety. On December 31, 1881, the balance due the State was $70,422. The bank having become insolvent in April, 1882, this action was brought against the defendant, upon the bond executed by him, to recover the amount due to the State on account of the moneys so deposited.

      Held, that in the absence of any evidence to show that the second bond was accepted as a compromise of its claim by the State under the first bond, or that the first bond was surrendered or canceled, the acceptance of the second bond did not discharge the defendant from any liability incurred by him under the first.

      Quaere, as to whether, without some express authority, the canal board could release and discharge a person so indebted to the State.
    Appeal by the people from-a judgment, entered against them in favor of the defendant Cushing, upon the report of a referee, dismissing the plaintiffs complaint.
    This action was brought upon a bond executed by the defendant Cushing, and others, as sureties for the First National Bank of Buffalo, which was designated in 1880 as a depositary for moneys collected for canal tolls in the city of Buffalo. By the provisions of the bond the bank was required, among other things, to transmit to the auditor a statement of the account between the bank and the ■State treasurer at the close of every month, and to pay for the use of the deposits interest at the rate of three per cent per annum, to commence on the twenty-first day of the month during which the' deposits were made, and also at all times to honor upon sight the drafts' of the State treasurer for all or any part of the deposits the State: might have on hand to his credit, and also to render to the auditor on the first day of July of each year, and as often as might be.required, a detailed statement of the account between the treasurei and the bank, and the commissioners of the canal fund might, require payment of all moneys on deposit in the bank at any time-when required, or when they should deem the same insecure. By the last paragraph of section six of the contract the bank was-allowed at all times to pay the said deposits into the banks in the city of Albany in which the deposits of canal fund money were for the time kept.

      D. O’Brien, attorney general, for the People.

      David F. Day, for the respondent.
   Learned, P. J. :

The principal question arises as to the effect of the taking and acceptance by the State of the bond of 1881; whether that discharged the defendant from the liabilities then accrued on the bond of 1880. The canal board annually designated banks for the deposit of tolls. The banks thereupon severally entered into an agreement with the State; and to that agreement a bond was attached, signed by sureties.

In accordance with this custom the First National Bank of Buffalo was designated. And thereupon it executed an agreement to the people, dated March 30, 1880. The defendant, with others, executed a bond (or sealed agreement), joint and several to the people of the same date that the bank should do and perform all things contained in the contract on its part to be done and performed ; would well and faithfully account for and pay over all moneys deposited with it, i<r for which it shall become liable in and by said contract, and that the bank should account for and' pay over all moneys now on deposit in said bank, or due or to become due therefor to the people.

There was then on deposit $65,000. During the year 1880, the bank received $73,569, which, with interest, $2,755.03, made the total amount $141,324.03. During the year the treasurer drew out $68,323.03, leaving the balance due the State $73,001. March 51, 1885, the bank was again designated, and thereupon executed another and similar agreement, dated March 31, 1881, with a similar bond or sealed agreement, executed by all of the former sureties ■except Cushing, and also executed by one Henry Zink.

When this was executed there was on deposit, of canal moneys, to the amount of $73,000.01. During 1881 there was deposited $32,421.46 and drawn out by the treasurer $35,000, leaving a balance December 31, 1881, of $70,422.46. The bank became-insolvent in April, 1882, owing, that amount at least. These amounts are believed to be accurate. But for the purpose of this present question, it is not material whether they are precisely correct or not. The defendant Cushing claims that by the acceptance of the bond of 1881, he was discharged from any liability under which he may have been on the bond of 1880, and so the learned referee held. It is not claimed that there was any surrender or cancellation of the bond of 1880. But it is claimed that the transaction operated as an accord and satisfaction. Nor is it claimed that the canal board, by any written or verbal contract with the defendant or with the bank, agreed to release him from his liability upon receiving another bond signed by the remaining sureties and by Mr. Zink. Indeed, it is doubtful whether, without some express authority, the canal board is authorized to release and discharge one who is indebted to the State in this manner. And certain it is that there is no evidence that they agreed to do this. The defendant’s claim rests simply on the position that by taking the bond of 1881, which they might lawfully take, they discharged him.

Several cases cited by the defendant’s counsel are on the point that where there is an actual agreement to compromise a claim, there additional security from a third party constitutes a sufficient consideration to support the agreement, a point which is undoubtedly sound. In Rush v. Soutter (67 Barb., 371) the old security had been surrendered on receiving the new. In Nevins v. Depierries (1 Ed. Sel. Cas., 196), and in Luddington v. Bell 177 N. Y., 138), and in Keeler v. Salisbury (33 id., 648), there was an agreement to compromise. In Lawrence v. Banker (9 Daily, 140) defendant swore to such an agreement and it was held to be a question for a jury. In Frisbie v. Larned (21 Wend., 450) the note of a third person with a small payment in cash was credited on the account,, and the account against the dissolved firm was balanced. The note-was received from the par.ner who was to pay the debt. It was held that the note was payment, not security.

Now, it- may be admitted that a creditor may compromise his claim and take a less amount, and that additional security will be a sufficient consideration. But in such cases there is an actual-agreement to compromise, and the only question is whether the agreement is binding. There was no such agreement in this case.

The defendant’s counsel cites the language of the learned referee, that “ when a new contract, co-extensive with an existing one, is-made, whereby the creditor secures further and additional rights,, or security from a third person for the same debt is accepted by the creditor for and in lieu of the old one, the new operates as an accord and satisfaction of the old.” Admitting that to be an accurate statement of law, it does not apply. One point in dispute here is, whéther the bond of 1881 was accepted for and in Ueu of that of 1880. Besides, the new contract was not "co-extensive with the old. The obligors in the new were not liable for failures .of the bank to perform its contract during 1880, although they may have been liable to pay the balance due at the end of the year 1880. And the language cited from Judge Edmonds, in Lfevins vDepierries, touched only on the question pf consideration for a compromise, not on the question of the existence of a compromise, or the implication of an accord from the acceptance of new security.

But to test the correctness of the principle asserted by the counsel for the defendant, let us suppose that a debtor gives a bond and mortgage to his creditor ; that afterwards for the same debt (or for the same with an additional debt) he gives another bond and mortgage upon other property; is the new an accord and satisfaction of the old ? Yet the new contract is co-extensive with the old and the creditor has secured further rights. Now, it is very likely true-that if a new contract is accepted by the creditor for and in lieu of the old, the old is discharged. If the new is taken in lieu of the old, that means that the old is given up. But that is the very question in dispute. Was the bond of 1881 taken in lieu of that of 1880 ; or was it taken as an independent contract in respect to moneys thereafter to be received and as additional security in respect to moneys then on hand. For the complaint claims only for the amount on hand March 30, 1880, and the deposits during 1880 less the amounts paid the State. And, therefore, it seems that the plaintiffs do not insist that the defendant is liable for deposits made after the giving of the bond of 1881. But at the time that bond of 1881 was given, the defendant was liable to the State upon the bond of 1880 for moneys actually received on deposit by the bank and not paid over. Nothing further was necessary to maintain an action unless perhaps a demand upon the bank and a refusal. (See, however, as to this necessity the last sentence of the sixth item of the contract between the bank and the people.) The defendant, at that time, might have availed himself of the privilege of a surety as laid down in Colgrove v. Tallman (67 N. Y., 95) and in similar cases. Thus he might have secured himself against the danger into which he has now fallen. The State then designating the bank again as depositary took security for the faithful discharge of its duties. If this had been all, there would be hardly room for the defendant to deny his liability. But in this new security taken by the State there is a clause making the sureties liable also for the money then on deposit, for which, as we have seen, this defendant was already liable. Now,, for what reason should this act discharge the defendant ? He is in no way injured. Probably he is benefited by having a right of contribution against the new surety. At any rate, without some distinct agreement to that effect, we cannot see that the mere acceptance of additional security released the surety. Suppose that the State had induced the bank to give, in April, 1881, a mortgage to secure the amount then on deposit. Would that mortgage have released the defendant? We are therefore of the opinion that the acceptance of the bond of 1881 did not discharge the defendant from the liability which then existed against him on the bond of 1880.

After the bond of 1881 was executed, the bank received and paid out moneys. If the sureties on that bond had made themselves liable only for the moneys to be received after its execution, then for their protection the rule that payments are to be applied to the earliest items would probably have been modified. So that payments made by the bank during 1881 would have been applied to discharge liabilities incurred during that year. But we have already seen that the bond included an agreement to secure the payment of the moneys already on deposit. Hence the sureties on the bond of 1881 would not be benefited by such a modification of the ordinary rule of application of payments. The defendant therefore may justly urge in his favor that the payments of 1881 be applied to the balance existing at the beginning of the year, being the earlier items of the account.

The judgment should be reversed, new trial granted, referee discharged, costs to abide event.

Present — Learned, P. J., Bocees and Landon, JJ.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDEN MUSEE AMERICAIN COMPANY (Limited), Appellant, v. JOSEPH B. CARR, Secretary of State of the State of New York, Respondent.

      Beduction of capital stock — chapter 264 o/1878 repeals all prior provisions as to — 1875, chap. 611, sec. 15.
    In 1882 the plaintiff was incorporated under chapter 611 of 1875, for the purpose of establishing and conducting a museum of art. In 1884 proceedings were taken to reduce’ the amount of its capital stock, as provided in section 15 of the said act of 1875. Upon an application for a mandamus to compel the Secretary of State to file and record the papers showing that such reduction had been made:

      Meld, that the provision of the said act of 1875, prescribing the manner in which the capital stock of such a corporation might be reduced, was repealed, by implication, by the passage of chapter 264 of 1878, entitled “An act to authorize corporations organized under the laws of this State to reduce their capital ■stock;” and that, from and after the passage of the said act of 1878, all corporations thereafter organized could only reduce their capital stock upon •complying with its terms and provisions.
    Appeal from an order denying tbe relator’s motion for a mandamus to compel the Secretary of State to file and record a statement of tlie reduction of its capital stock, made in accordance with “the requirements of section 15 of chapter. 611 of 1875.
    The relator was incorporated in 1882, to establish and conduct, in “the city of New York, a museum of art, after the manner of the Musée Grevin of Paris, for the manufacture and exhibition of works of art. In 1884 proceedings to reduce the amount of its •capital stock were commenced and carried through in conformity with the provisions of the fifteenth section of the act under which it was incorporated.

      G. & A. Van Santvoord, for the apppellant.

      D. O’Brien, attorney general, for the respondent.
   Learned, P. J.:

The rule as to repeal by implication is concisely stated in Heckmann v. Pinkney (84 N. Y., 211). “ Where a later statute, not purporting

to amend a former one, covers the whole subject and was plainly intended to furnish the only law upon the subject, the former •statute must be held repealed by necessary implication” That is the view of common sense; especially when we consider the carelessness with which statutes are drawn. The case of McKenna v. Edmundstone (91 N. Y., 231) was that of a general statute, held not to repeal a local statute, and presents a different line of argument from the present case.

When we apply that rule to this case we find that the relator was Incorporated under the general act for the incorporation of certain business corporations. (Laws 1875, chap. 611.) The fifteenth section provides a mode of reducing the stock. To do this requires a majority in number of the stockholders and a majority of the stock. There must be a meeting for that purpose, pursuant to notice, spe■cifying the object. And the debts and liabilities must not exceed the diminished capital.

In 1878 a law was passed “to authorize corporations organized under -the laws of this State to reduce their capital stock.” (Chap. 564.) This applies to all corporations and companies “ now existing, or which may be hereafter organized,” with an exception to be hereafter noticed. It has careful provisions, requires publication of a notice of the meeting in a newspaper, and the mailing of the same to stockholders three weeks previous; requires the notice to state the amount to which it is proposed to reduce, and requires a vote of two-thirds of all the shares. It prescribes the proceedings at the meeting, the making of a certificate by the chairman and its acknowledgment, and the filing of the same in the county clerk’s office, and a duplicate in the office of the secretary of state. And it further requires that prior to filing, an approval of the comptroller shall be indorsed to the effect that ■ the reduced capital is sufficient for the business of the company, and is in excess of debts, and that the actual market value of the stock prior to the reduction was less than par value.

This statute then does not purport to amend a former one; it covers the whole subject, and is plainly intended to furnish the only law upon the subject. For as its provisions are more stringent than those of the law of 1875, they never would be complied with if corporations could have their choice. Thus the lavf, if not exclusive, would be a dead letter in regard, not only to corporations * under the law of 1875, but also in regard to those formed under-many other general laws, which contain provisions for reduction of capital such as building companies, gas-light companies, etc.

"We may especially notice the safeguard contained in the provision that the actual market value, prior to the reduction, must be-less than the par value. Clearly the legislature did not intend that this very judicious provision should be a nullity, as it would be if corporations might, at their option, reduce their stock under the provisions of prior statutes which have no such requirement. This provision of the statute of 1878 shows that corporations were not to be allowed to reduce their capital when their stock was above par in the market.

There is an exception to which allusion was above made. “ Nothing in this act contained shall be construed to in any manner interfere with or affect any law now in existence, authorizing any corporation heretofore organized to reduce its capital stock.” This-exception implies that the act was to interfere with and' affect existing laws as to corporations thereafter to be organized. It was-probably thought to be unfair to deprive corporations already organized of any privileges which they possessed by the laws under which they had been organized. But it was intended that corporations which should organize after' the passage of this act, and which thus knew of its provisions, should be subject to them and to them alone. The relator in this case was not organized until 1882.

It is urged by the relator that the act of 1818 is intended to apply only to corporations which have an actual market value. But we see no difficulty. If the stock is valueless, then clearly its actual market value is less than par. If it is a stock which is seldom bought or sold, still the comptroller can ascertain to his satisfaction its actual market value sufficiently at least to enable him to guard against the danger at which that provision of the act was aimed.

The order appealed from is affirmed, with costs.

Present — Learned, P. J., Bookes and Landon, JJ.

Order affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ULSTER, Appellants.

      Collection of State tames — power of the legislature to alter the system — the duty of oolleeting them may he imposed upon the several counties — Constitution, art. 1, tecs. 1 and 6; art. 3, secs. 16 and 20 — 1879, chap. 382; 1881, chap. 402, cmd 1883, chap. 516, do not conflict with such constitutional provisions.

    Chapter 382 of 1879, chapter 402 of 1881, and chapter 5J6 of 1883, modifying the general laws for the collection of the State taxes, by placing the duty of selling the lands upon which the taxes are unpaid upon the counties therein designated, instead of requiring that to be done by the comptroller, and charging the county with the unpaid taxes and compelling them to pay to the comptroller the amount paid by him upon the sale of certain lands in these counties, upon his issuing certificates of the sale thereof and assigning the same to the said counties, are constitutional and valid.
    The taxing power of the legislature for public purposes is unlimited, except as specifically restrained by the Constitution.
    As the said acts do not impose, continue or revive a tax, within the meaning of those words as used in section 20 of article 3 of the Constitution, it was not necessary to state in them the object to which the tax was to be applied.

      The titles of the acts state the subjects thereof with sufficient precision and explicitness to satisfy the requirement of section 16 of article 3 of the Constitution.
    The said acts do not violate the provisions of sections 1 or 6 of article 1 of the Constitution, by depriving either the county or the taxpayers thereof of their property, without due process of law.
    Quiere, as to the right of the county to assert in these proceedings any violation of the rights of the individual taxpayers, by whom no complaint was made.
    Appeal from an order made at a Special Term, allowing a writ •of peremptory mandamus, requiring the board of supervisors of Ulster county to levy, in the same manner as State taxes are levied, upon the taxable property of the county the sum of $28,098.22, ■and pay the same into the treasury of the State.
    By the general system of taxation (chapter 427, Laws of 1855, inserted in 5th ed., R. S., as arts. 2 and 3, title 3, chap. 13, part 1, 1 R. S., 925, 926) the comptroller is to charge the several county treasurers with the amount of the State tax of their respective counties. (Sec. 44 [8].) The county treasurer is to return certain unpaid taxes to the comptroller. (Sec. 40 [4].) For these (after certain rejections) the comptroller is to credit the county treasurer. (Sec. 45 [9].) If the arrears exceed the State tax the comptroller is to pay the surplus to the county treasurer (see. 46 [10]) or the whole, if there be no State tax. Thus by the general system the State assumes the payment of these arrears, and collects them subsequently by selling the lands. Thus the State takes on itself the business and risk of collecting this class of taxes, which taxes are really chargeable to the county.
    .By chapter 65, Laws of 1878, a modification was introduced' in respect to three counties. By this statute the county was to pay the whole of its' State tax, without regard to these uncollected taxes, and was not to be credited with the same. The county treasurer was to proceed and sell the land substantially as the ■comptroller had done. By chapter 200, Laws of 1879, passed April nineteenth, the county of Ulster was included in the provisions of the statute last mentioned.
    By the general system, in case no person bid on the tax sale, the comptroller is to bid in for the State. (1 R. S. [5th ed.], p. 935, § 102 [66].) This duty under the two statutes last cited is devolved on the county treasurer by section twelve.

      Thus it will be seen that, in regard to Ulster and some other counties, the advantages and disadvantages of paying these unpaid taxes, of selling the lands therefor, and (as might be the case often), of buying in the lands and thus making a profit, were transferred from the State to the county. The statutes of 1878 and 1879 had provided for future arrears and sales. But a tax sale by the comptroller had taken place in 1877, and in order to bring the proceedings which had taken place under that sale into harmony with the new system in these counties, chapter 382 of the Laws of 1879’ was passed May twenty seventh, and after the passage of the act which added Ulster county to the counties under the special system. By this statute the comptroller was directed to transfer to the counties, respectively, the certificates of sale owned by the State for lands bid in in 1877, and to cancel unpaid bids not made by the State, and issue certificates of sale for the lands covered by such bids to the respective counties. He was to charge the county with the amounts for which the parcels of land were sold.
    Chapter 402, Laws of 1881, amended the general tax law, viz., that of 1855, above mentioned, among other things, in section 66 of that act (1 B. S. [5th ed.), 935, § 102), and made it the duty of the comptroller at tax sales to bid in for the counties, as to which there were special laws as above stated, lands in those counties respectively on which there were no bids; and required the counties respectively to pay the amount, receiving from the comptroller the certificates of sale.
    Chapter 516, Laws of 1883, required the comptroller, in respect to these same counties, to assign to them respectively certificates of sale of land therein, bid in by him for the State at the sale of 1881, and to cancel bids, etc., and required the counties respectively to pay the amounts. This law was substantially the same as to the tax sale of 1881 that the law above cited of 1879 was as to the tax sale of 1877. The comptroller has complied with the requirements of these three laws of 1879, 1881 and 1883, and an amount is payable under each of those laws by the county of Ulster to the State, which the county has refused to pay. The county has, in each of the years from 1879 to 1883, inclusive, caused a sale of lands returned for unpaid taxes to be made, according to chapter 65 of the Laws of 1878, and on such sales various sums have been received. Most of the lands sold have been bought by the county, and certificates have been issued to the county.
    The county treasurer, in his reports for 1880, 1881 and 1882, credited the county with the amount received from State certificates, and he also made a full report in 1880 of the subject to the supervisors. The people obtained from the Special Term an order that a peremptory mandamus issue requiring the supervisors to raise by taxation the amount due as aforesaid to the State. And the defendants appeal. The ground of appeal is that the laws are unconstitutional.

      JD. O'Brien, attorney general, for the People.

      J. Newton Fiero, for the appellant.
   Learned, P. J.:

No law can be pronounced invalid for the reason simply that it violates our notions of justice, is oppressive and unfair in its operations. * * * If it violates no constitutional provision it is valid and must be obeyed.” (Bertholf v. O'Reilly, 74 N. Y., 516.) What constitutional provision is violated by these statutes ? It is not enough to show (if this indeed be shown) that they are oppressive and unfair.

These three statutes authorize the comptroller to charge certain amounts against the county, and the statutes of 1877 and 1881 declare that the amounts shall be payable in the same manner as the State tax. Is there anything in the Constitution which forbids this charge of certain amounts upon a certain county ? The language of the decisions of our courts most forcibly states that the taxing powers of the legislature “ for public purposes is unlimited, except as specifically restrained by the Constitution. Not only is the power unlimited as to the extent of the taxation to be imposed, but as to the manner. * * * It is not improbable that the safety of the public may require that some constitutional restrictions shall be interposed, but nntil this is done the judiciary cannot control its exercise.” (Matter of Van, Antwerp, 56 N. Y., 261.) This only reiterating the doctrine of People ex rel. Griffin v. Brooklyn (4 id., 419), and Town of Guilford v. Supervisors (13 id., 143). The only qualification which has been made to this strong language is in the case of Weismer v. Douglas (64 id., 91), in which it was held that the legislature could not compel the raising of money by taxation for the mere benefit of private individuals. Thus it may be seen that that decision, while it held the power of the legislature in respect to taxation to be limited by the purpose for which it is exercised, did not question that the power was unlimited when the purpose was public. We have thus far spoken of these statutes as if they had arbitrarily imposed a certain charge upon the county of Ulster. But such is by no means the case. It is apparent from the statement already given of the tax laws that the statutes in question are ■only a modification of the general system, placing the duty of selling lands for unpaid taxes on the county, instead of the State, and with that duty charging the county with the unpaid tax, instead of having such tax assumed by the State.

The land which is taxed is the ultimate source from which the tax is to be obtained The county is charged with its whole proportion of the State tax. And it may justly remain so ■charged until the money has actually been received out of the land. And in this connection we may notice what seems to be an error on the part of the defendants. They object that the county is required to pay the amounts bid, and urge that it does not follow that the amounts bid were the amounts ■of the tax. Hence they say that the charge against the county is in nowise the collection of the tax on the property. But they overlook the provision of law that only enough of each parcel is to be sold as will pay the tax, interest and .charges. Hence, in fact, the bid is the amount of the tax, including the interest and charges. And, therefore, nothing is by these laws charged to the county except the amount (with interest and charges) of the tax which should originally have been collected. We do not see, therefore, how it can be said that the persons who bid on these sales may have bid much in excess of the tax. And so far as an argument is based on this assertion, tending to show that these statutes are not a part of the taxing system, it seems to us to fail. It is because the State has failed to receive the tax which was payable, in respect to these lands, that the matter remains in abeyance. The duty of paying the tax is thrown on the county, together with the means of enforcing it out of the land on which it was laid.

It is urged again that these statutes are unconstitutional under section 20,-article 3. , The defendants urge that if these statutes are connecting with the taxing power, then they either impose, continue or revive a tax, and that the tax and the object is not. stated. ¥e think that this position is not sound. These statutes-are not the imposition or the continuance or the revival of a tax. They are a mere modification in the process of collecting a tax already imposed. This is the evident meaning of the statutes. The State is entitled to have the money which it imposes by way of tax. The process of selling the land is but a step toward obtaining the money. The bidding in the land is but another step. Practically, the tax is not thereby paid in such sense that its subsequent, collection is the collection of a new tax.

Again, the defendants insist that the statutes are unconstitutional under section 16, article 3, in that the subject is not expressed in the title. On looking at the decisions upon this perplexing section of the Constitution and the attempts which have been made to give a reasonable construction to it, we are satisfied that this objection is not valid. It is of little use to discuss a question which, after all, must only be decided by comparing the title with the subject of the statutes and determining whether the former expresses the latter.

And once more the defendants urge that these statutes ar& unconstitutional as in violation of sections 1 and 6, article 1, in that they deprive a member of the State or a person of property without due process of law. These provisions, of course, do not take away the power of taxation. (Town of Guilford v. Supervisors, 13 N. Y., 145.) The legislature “ can, under the power to-levy taxes, apportion the public burthens among all the taxpaying citizens of the State, or among those of a particular section or political division.^

Towns and counties, although having certain corporate or quasi-corporate powers, are but political divisions organized for the convenient exercise of the political power. (Lorillard v. Town of Monroe, 11 N. Y., 392; People ex rel. Downing v. Stout, 23 Barb., 34; People v. Supervisors of Montgomery, 67 N. Y., 109.)

In Laramie County v. Albany County (92 U. S., 307), the legislature had organized two new counties and had included within their limits a part of an existing county, but had made no provision for apportioning debts or liabilities. It was held that the old county had no claim on the new for the old debts. The subject of the rights of towns and counties was discussed at length. It was shown that they are parts of the machinery for carrying on the business-of the State; that they are mere creatures of legislative will. It cannot then be said that there are any rights of the county as such which are taken away in violation of the Constitution. But it is said that, if not the rights of the county, at least the rights of the individual citizens are affected. Passing over the question whether it lies with these defendants to assert the rights of the individual taxpayers of Ulster, who make no complaint so far as appears, we return to the doctrine above asserted ; and that is that in the exercise of the right of taxation the legislature is limited only by the purpose of the tax, not by the manner of taxation or the inequality with which the tax is imposed. When the tax on a piece of land is not collected it is evident that the deficiency thus arising must be made up in some way. It may be by the whole State or it may be by the county where the land lies, or even by the town, and the legislature must decide.

We are of opinion uhat the order be affirmed, with costs.

Present — Learned, P. J.; Bookes and Landon, JJ.

Order affirmed, with costs.


author: By the Court :

text:
    WILLIAM O. DOUGLASS, Respondent, v. EDWIN B. LOW, as General Guardian, etc., of WILLIAM O. DOUGLASS, Appellant

      Settlement between guardian and ward — when set aside because of fraud — when a court of equity will set aside a decree entered in a Surrogate’s Court.

    In this action, brought by the plaintiff against his former guardian, the complaint alleged that, upon the plaintiff coming of age, March 26, 1879, the defendant represented to him that there was then in his hands, as guardian, $4,363.10 belonging to the plaintiff; that on May 14, 1879, he induced the plaintiff to take an assignment of a note for $3,200, secured by a mortgage upon lands in Illinois, payable in two years from March 29, 1879, which was executed by the defendant’s brother; that the defendant, with intent to •defraud the plaintiff, falsely represented that the lands were improved and furnished ample security for the note; that relying upon these representations, which were known to the defendant to be untrue, the plaintiff accepted the note and mortgage; that, upon discovering the falsity of the representations in November, 1880, he informed the defendant thereof, tendered to him an assignment and also a satisfaction of the note and mortgage, and demanded that the receipts and papers delivered by him be canceled, and that the defendant ■should pay to him the $3,300 and interest, and that the defendant assented to the said demand and agreed to make the said payment. That at the time when the defendant delivered the note and mortgage, the plaintiff was induced to sign, among other papers, a receipt for $3,200, a discharge of the defendant, And an authority to one Ross to appear for the plaintiff before the surrogate; that January 13, 1880, without notice to the plaintiff, the defendant and Ross ■appeared before the surrogate and procured a discharge to be entered. The ¡plaintiff offered in his complaint to reassign the note and mortgage to the defendant.

      Held, that the complaint stated facts sufficient to constitute a cause of action, and that a demurrer thereto was properly overruled.
    That the fraud, which was admitted by the demurrer, invalidated the settlement.
    That the plaintiff was not required to make a motion in the Surrogate’s Court to have the decree there entered set aside, as the case was one in which a court of equity would set aside a judgment or decree so fraudulently procured.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to tbe complaint.
    The facts admitted by the demurrer are : that defendant was the general guardian of plaintiff; that plaintiff came of age March 26, 1879; that about May 14, 1879, defendant represented to plaintiff ■that there was in his hands, as guardian, $4,363.10; that at least that amount was actually in defendant’s hands, as guardian; that about that time defendant gave plaintiff a note and mortgage of one Charles W. Low, a brother of defendant, for $3,200 and interest, dated March 29, 1879, payable to plaintiff in two years; the mortgaged lands being in Illinois; that said Charles W. Low was .then largely indebted to defendant, and was insolvent; that defendant, with intent to defraud plaintiff, falsely represented that the mortgaged lands, were improved farms and ample security; that plaintiff was ignorant as to the lands, and relied on defendant’s ■•statements, and believed them and so accepted the note and mortgage as payment of $3,200 owing him by defendant; that the representations were untrue, and known to be untrue by defendant; that plaintiff discovered the truth as to the lands in November, 1880, and immediately informed defendant and demanded the cancelling of the receipt and papers delivered by him, and the payment of $3,200 and interest; that defendant assented to plaintiff’s demands and promised to pay; that plaintiff is willing and offers to assign said note and mortgage to defendant; that at or about the time when defendant delivered the note and mortgage to plaintiff, plaintiff was induced by defendant to sign certain papers prepared by him; among them a receipt for $3,200 and a discharge of •defendant; and an authority to James B. Boss to appear for plaintiff before the surrogate and discharge the defendant of liability; that thereupon, on the 12th day of January, 1880, without notice to plaintiff; the defendant and said Boss appeared before the surrogate and a discharge was entered of record (which is set forth at length), said Boss appearing for plaintiff.

      Waldo dk Grover, for the appellant.

      Palmer, Weed, Kellogg dk Smith, for the respondent.
   By the Court :

Yery little need be said to show that this complaint sets forth a good cause of action.

The defendant insists that there has not been a sufficient rescission of the contract and offer to restore. But the plaintiff avers that he is ready and willing to assign or to cancel the note and mortgage, and that prior to the action he executed an assignment thereof to the defendant, and a satisfaction, and caused the same to be tendered to the defendant. He has done enough in this respect.

Next the defendant says that after he is of age a ward may settle with his guardian. (Kirby v. Taylor, 6 John. Ch., 242.) All which that case says is that a release given six months after a ward comes of age, freely and without any fraud, is valid. On the contrary, the demurrer admits the fraud in this case. Furthermore, the practice in equity was to allow a ward a year’s time to investigate the guardian’s accounts; ón the ground that when he first comes of age he is still too much under the guardian’s influence to protect himself. (Hylton v. Hylton, 2 Ves., 548; In re Van Horne, 7 Paige, 46.)

Next, it is urged that the decree in the Surrogate’s Court cannot be set aside for fraud in this action, and that so long as it stands it is a bar to relief in this court; that a motion should be made in the Surrogate’s court. It seems to us that the present is precisely one of those cases in which equity will set aside a judgment or decree. (Ross v. Wood, 70 N. Y., 8.) There was no trial before the surrogate. The plaintiff by fraud was induced to authorize an attorney to appear for him and to consent to a discharge. It is not that there was false or fraudulent evidence given. It is that the plaintiff was by fraud induced to consent to a decree without any trial. This case is like one where, by fraud, a party is induced to keep away from court; where the unsuccessful party has been prevented from fully exhibiting his case by fraud, by reason of which, there has never been a real contest before the court of the subject-matter of the suit.” ( U. S. v. Throckmorton, 98 U. S., 61; Johnson v. Waters, 111 U. S., 640; S. C., 30 Alb. Law Jour., 373.)

We think it unnecessary to cite further authority.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Landon, JJ.

Judgment affirmed, with costs.