author: Andrews, J.

text:
    The People ex rel. Eagle Fire Insurance Co. v. The Commissioners of Taxes and Assessments.

      (Supreme Court, Special Term, New York County,

      Filed January, 1894.)

    1. Taxes—Certiorari.
    If the error sought to be reviewed, under chap. 269 of 1880, is founded upon an illegal exercise of power by the assessors, the writ will be quashed unless the petition specifies the illegality of which complaint is made.

      % Same.
    A writ of certioi'cvri, under this act, will not lie to review any other or different cause of alleged grievance than such as were submitted to, and urged upon, the assessing officers.
    8. Same.
    So, where the relator did not call the attention of the tax commissioners to the fact that it claimed exemption under the act of 1886, it cannot maintain this proceeding.

      4. Same.
    After the expiration of the fifteen days’ limitation provided by section % of the act of 1880, a defective petition cannot be amended.

      5. Same.
    A corporation may waive the observance by officials of a statute made for its benefit.
    Hearing on a writ of certiorari brought under chapter 269 of the laws of 1880, to review the assessment of the personal property of relator made by the commissioners of taxes and assessments in the year 1889.

      Brownell & Lathrop (JBJseJc Cowen and ¡Silas B. Brownell, of counsel), for relators; Wm. 1:1. Clark, counsel to the corporation {James M. Ward, of counsel), for resp’ts.
   Andrews, J.

This is a proceeding brought under chap. 269 of the laws of 1880, to review the assessment of the personal property of the relator made by the commissioners of taxes and assessments in the year 1889. A writ of certiorari was duly issued to the respondents, who filed their return thereto, and the relators thereupon served notice of trial and brought the proceeding to a hearing at special term. When the proceeding was reached in its order on the day calendar, the relator’s counsel moved to strike out certain portions of the return, and the counsel to the corporation resisted such motion upon the ground that it was made too late, and also upon the merits. Such motion was thereupon argued upon both of said grounds, and, the court having temporarily reserved its decision upon the motion, further argument upon the merits of the case was then had, the counsel to the corporation claiming that the petition upon which the writ was issued was fatally defective upon its face, and that the writ ought to be quashed, and the counsel for the relators contending that the petition was sufficient, and that whether the motion to strike out portions of the return should be granted or not, the relators ought to have judgment in their favor entirely vacating the assessment, and the court then took the whole matter under advisement.

It is doubtful whether the objection that the motion to strike out portions of the return, and the motion to strike out copies of certain affidavits and of a letter attached to the return, are made too late can be sustained, but I am of the opinion that such motion should be denied upon the merits. The portion of the return which the relator seeks to have stricken from the record is, briefly and in substance, as follows: “Thatin the year 1886, a bill was introduced in the legislature which related to the taxation of insurance companies; that such bill was opposed by the public authorities of the city of New York, upon the grounds that if it became a law it would exempt such companies from all taxation for local purposes; that the representatives of such companies at Albany thereupon assured the representatives of such public authorities that the bill, if it became a law, would not have such effect, and that the companies would never claim before the tax commissioners that it did have such effect; that thereupon the attorney general of the state, having given a written opinion that the bill, if it became a law, would not have the effect of releasing such companies from taxation for local purposes, the public authorities of the city of New York withdrew their opposition to the bill, which was passed by the legislature and signed by the governor.

It is not necessary, for the purposes of this proceeding, to decide whether the then representative of such insurance companies did make such an agreement as is above described, or whether the same, if made, was binding upon the relators or other insurance companies, and operated to prevent the relators and other such companies frdm afterward setting up the claim that under such law they were totally exempt from taxation for local purposes. Whether that be so or not, I think the facts so set up in the'return may be competent and material evidence upon the question whether the relator did afterward claim, before such tax commissioners, that, under the provisions of said act of 1866, it was wholly exempt from taxation for local purposes, and also upon the question, whether, under all the circumstances of the case, the relator must be regarded as having waived all claim to such exemption. The motion to strike out such portions of the return will, therefore, be denied, and, as the copies of affidavits and of the letter are made portions of the return, the motion to strike those out will also be denied. If, however, the relator desires a reference to take testimony as to the truth of the allegations of the return which it is sought to have stricken out, an order for such a reference will be granted.

Irrespective, however, of the portions of the return which the relators seek to have stricken out, it seems to me that the writ of certiorari should be quashed, for several reasons:

First. It appears by the return that the relators never claimed before the tax commissioners that it was exempt from taxation for local purposes by reason of the provisions of chapter 677 of the laws of 1866. After the passage of chapter 542 of the Laws of 1880, the relators and other insurance companies claimed that they were exempt from any assessment upon their personal property for the purpose of local taxation. His claim was decided against the insurance companies in the case of the People ex rel. Westchester Fire Insurance Company v. Davenport, 91 N. Y.; 574, decided in March, 1883. It has never been claimed that between 1883 and 1886 any statute was in existence which exempted the relators from assessment for the purpose of local taxation. It appears that upon petitions identical in form with the petition now before the court, the relators and other insurance companies sued out writs of certiorari to review assessments made by the tax commissions during the years 1883, 1884, 1885, 1886, 1887, 1888, 1889 and 1890. It also appears that the statements, filed by the relators with the tax commissioners from 1880 to 1883, when the above mentioned Westchester Fire Insurance Company case was decided against the company by the court of appeals, and from 1883 down to date, including the years 1883,1884,1885 and 1886, when there was no law in existence upon which a contention for total exemption could be based, contained in the same words the same claim that had been made before the tax commissioners when the true construction of the act of 1880 was in controversy. The claim made in the statement submitted by the relators in the year 1889, was as follows: “ Said corporation insists that all personal property of the said corporation was, on the said second Monday of January, 1889, by the laws of the state of New York, exempted from assessments or taxation.” Now this is precisely the claim which the relators made under the said act of 1880, and also during the several years that followed the decision in the Westchester Fire Insurance case, and during which years it is not claimed that, any statute exempted the relators from taxation, and during several years after the passage of said act, chapter 679 of the laws of 1886. It thus appears that while the relator during the entire period from 1880 to 1890 claimed before the tax commissioners that it was exempt from taxation for local purposes, such claim was always made in the same general terms ; and that, after the passage of said act, chapter 679 of the Laws of 1886, the relator did not call the attention of the tax commissioners to the fact that it claimed such exemption under that statute. If it be true, as alleged in the return, that the relator and other insurance companies had -agreed not to claim exemption from local taxation under said act of 1886, that fact would tend to explain why such claim was not specifically made, and to show that the claim to exemption made in general terms in the statements presented to the tax commissioners after the passage of the act of 1886 was not intended to include a claim to exemption under that statute. It has been held that where a corporation sought to review an assessment, under the provisions of chapter 269 of the Laws of 1880, on the ground of overvaluation, or of irregularity it could not succeed, because it had omitted to apply to the tax commissioners for relief under the statute of 1859. People ex rel. Mut. Union Telegraph Co. v. Commissioners of Taxes, 99 N. Y., p. 257 ; People ex rel. the C. P. N. E. R. R. Co. v. The Commissioners of Taxes, 21 St. Rep., 360. It seems to me that, under the doctrine laid down in these cases, as the relator did not call the attention of the tax commissioners to the fact that it claimed exemption under said act of 1886, it cannot maintain this proceeding.

Secondly. If the allegations of the return, as to the agreement made by the representative of the relator with the representative of the public authorities not to claim exemption from taxation for local purposes under the act of 1886 are to be considered as true, such agreement, taken in connection with the failure of the relator to specifically claim exemption under the act of 1886 would seem to warrant the inference that the relator intended to waive, and did waive, all claim to exemption from taxation for local purposes under that statute, and that the proceeding cannot, therefore, be maintained.

Thirdly. The writ must be quashed upon the ground that the petition upon which the writ is based does not set up, as a ground of the alleged illegality of the action of the tax commissioners, the fact that the property of the relator was totally exempt from taxation for local purposes, either under said chapter 679 of the Laws of 1876, or under any other statute.

Section 1, chapter 269 of the Laws of 1880, provides as follows: “A writ of certiorari may be allowed by the supreme court on the petitition duly verified of any person or corporation, assessed and claiming to be aggrieved to review an assessment of real or personal property for the purposes of taxation, made in any town, ward, village, or city of this state, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal, etc.” The petition upon which this writ was issued, as above stated, wholly fails to specify as a ground of illegality of the assessment that the property of the relator was exempt from taxation for local purposes, under said act of 1886, or under any other statute. The said petition, which is upon a printed form, contains the following: “ That prior to the 1st day of May, 1889, the said corporation petitioner duly protested, claimed, insisted and demanded from said commissioners of taxes and assessments that all the personal property and bank shares of said corporation were on the second Monday of January, 1889, by the laws of the state of New York, exempted, and now are exempt, from assessment or taxation, and that the said commissioners of taxes and assessments omit and strike from the book of annual record of the assessed valuation of real and personal estate of the city of New York the name of said corporation, and the amount inserted therein as the valuation and assessment of the personal property and bank shares of said corporation for the year 1889, upon the ground that all the personal property and bank shares of the said corporation is exempted from assessment or taxation by the laws of the state of New York,; and also that said commissioners make no assessment or valuation of the personal property or bank shares of said corporation for the purpose of taxation for said purpose.”

This is not a statement of the grounds of illegality required by § 1 of chap. 269, the Laws of 1880, but is a mere recitalof what is alleged to have taken place before the tax commissioners at some time before the second Monday of January and the 1st of May, 1889. In a subsequent portion of the petition the grounds of the alleged illegality are stated as follows: “ And your petitioner shows that the said assessment upon the said valuation of said personal property and bank shares for the purpose of taxation, is illegal, invalid and void and erroneous, and that your petitioner will be injured by such illegal and erroneous assessment, and your petitioner specifies the following grounds of illegality and error: That the said commissioners have overestimated the valuation of capital and surplus for the purpose of taxation, and illegally and erroneously included in their valuation of the personal property of the said corporation on said roll the following sums, to wit:

First. The sum of $173,000 overvaluation upon its real estate, which is assessed and valued on said roll by the commissioners at the sum of $276,000, and in the valuation of the capital and surplus at the sum of $449,000.

iSecond. The sum of $94,450 overvaluation, upon premiums in course of collection, which were included in the valuation and assessment of the capital and the surplus at $18,890.

Third. The sum of $391,634, overvaluation of the capital stock and surplus which the said commissioners assessed and valued at $976,534, when it was in evidence and proved before them at the time of said assessment, and for the whole preceding year, the actual highest market value of the capital stock of said company, including its surplus, was the sum of $585,000.

Fourth. That the said corporation is also entitled to a deduction and allowance upon the valuation for taxation of bank shares belonging to it for such sums as should have been allowed or deducted from the net valuation of the capital and surplus for taxation if the said bank shares had been excluded therein and assessed as part of such capital and surplus.

That the said commissioners have not allowed the following items of deduction, or some part thereof, upon the statement and valuation on the gross assets of said corporation, to wit: (Then follows nine items, aggregating over a million of dollars, which, it is claimed, should have been allowed.)

The above quotation includes all the specifications of grounds of illegality and error which are contained in the said petition. It is contended by the learned counsel for the relator that the above quoted recital of what is alleged to have taken place before the commissioners is to be regarded as a specification of a ground of illegality within the meaning of § 1 of said chapter 269 of the Laws of 1880. It seems to me too clear for argument that this contention has no foundation whatever. Such recital, upon its face, is not a specification of a ground of illegality or error. It does not purport to be, and is not, a specification of such a ground. It is merely a history of what is alleged to have taken place before the tax commissioners, prior to the time when the settlement was made. The draughtsman of the petition was evidently familiar with the provision of said § 1, chapter 269, and knew that it was necessary to specify in the petition the grounds of alleged illegality and error. Accordingly, after reciting what was purely matter of history, he proceeds to specify the grounds as above stated. It would be easy to conjecture why the alleged exemption from taxation for local purposes was not specified as a ground of illegality if such conjecture were'permissible. The relator, as well as other companies, had for years filed statements in which they did formally state that they were exempt from taxation for local purposes; but they had not, since the passage of the act, chanter 679 of the Laws of 1886, made any specific claim that that statute totally exempted them from taxation for local purposes, and it was, therefore, entirely natural that, when the petition in question was drawn, the draughtsman should omit to specify the alleged total exemption from taxation for local purposes under said act of 1886 as a ground of illegality. But whatever may have been the reason for the omission, the fact is patent that the alleged total exemption from taxation for local purposes is not specified as a ground of illegality, and the mere fact that the petition states in its preamble that a claim of total exemption was made before the tax commissioners, does not, and cannot, make such alleged exemption one of the grounds of illegality upon which the rights to the writ of certiorari was claimed. The relator might have'presen ted any number of claims to the tax-commissioners, either for entire or partial exemption from taxation, and then it could have elected to abandon a portion of the same when it came to present its petition to the court, and to ask for the issuance of a writ of certiorari to review the action of the tax commissioners.

Fourth. The counsel for the relator asks that if the court sustains the objection that total exemption from liability is not specified as a ground of illegality and error, the petition be amended by inserting a proper allegation to that effect This application cannot be granted. The act, chapter 269 of the Laws of 1880, made a complete revolution in the proceedings to review the assessments made for the purposes of taxation, and § 2 of said act contains a short statute of limitations. It is therein provided, among other things, as follows: “ The writ shall not be granted unless application therefor shall be made within fifteen days after the completion and delivery of the assessment roll and notice thereof is given as provided in this act.” Under the provisions of § 1, such writ may be allowed only upon a petition, duly .verified, of the person or corporation assessed and claiming to be aggrieved, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, etc. The foundation of the proceeding is the petition, which must specify the grounds of illegality or error, and the court has no more power to allow the petition to be amended in the manner asked for than it would have to permit a complaint in an action-to be amended so as to set up a new cause of action which was barred by the statute of limitations.

Fifth. It is strenuously insisted by the learned counsel for the relator that the objection taken by the counsel for the corporation that the petition is defective in not setting up total exemption from liability to taxation as a ground of illegality is highly technical, and that it would be very unjust to the relator to sustain the same and thereby compel the relator to pay taxes during years when its property was exempt by law from taxation for local purposes. On the other hand, it seems to me that the court should not be astute in endeavoring to construe the statute in such manner as to relieve the relator from the payment of the taxes in question, and that it would be very unjust to the city and to other taxpayers if the relator should succeed in avoiding the payment of the same. In considering this point I assume the truth, of the following facts, part of which are set up in the return and part of which are established by evidence, namely : At the instance of the relator and other insurance companies, in the year 1887 a bill was introduced in the legislature which provided for the taxation of insurance companies for state purposes, and such bill provided for a tax upon premiums, which has to be paid to the state treasurer. The public authorities in this city, through their representative at Albany, promptly objected to this bill, and claimed that it might be construed as relieving insurance companies from all taxation for local purposes. The representative of the insurance companies assured the representatives of the public authorities of the city that the insurance companies did not seek to avoid -taxation for local purposes, and that the bill in question, if it became a law, would not enable them to do so. The opinion of the attorney general was solicited and given, to the effect that if the bill became a law the insurance companies would still be liable to taxation for local purposes. Under these circumstances the public authorities of the city withdrew their opposition to the bill, and it was passed by the legislature and signed by the governor, although it is inconceivable that if such opposition had continued the bill could ever have become a law. Subsequently, the insurance companies filed statements similar to those' which they had filed for some years previously, but making no reference to the statute, and making no claim to exemption under it. The tax commissioners, believing that said companies made no such claim, and intended to make none, thereupon assessed their property, and in due course of time the taxes based upon such assessment were imposed upon said companies. Finally, after this method of procedure had gone on for several years, a company, which was not represented, at Albany, when the bill aforesaid was presented, instituted a proceeding to review the action of the tax commissioners, and it was finally held by the court of appeals in the year 1890, that the said act of 1886 did exempt insurance companies from all liability for local taxation. The very next year after this decision was made the legislature amended said act of 1886 so as to put an end to such unjust and unfair exemption. In the meanwhile, however, the relator and other companies who had made no specific claim to exemption under said act of 1886, suddenly awoke to the fact that they too might claim exemption from local taxation under said act of 1886, although prior to said last-named decision no such claim had ever been specifically made on their behalf. The practical effect of sustaining this claim will be to deprive the city treasury of a large amount of taxes which, if the present claim had been seasonably made, would have been imposed upon other property, and would have been collected and paid into the city treasury. Assuming the facts above set forth to exist, I fail to see how the case presented by the relator commends itself to the favorable consideration of the court, or how the ends of justice will be furthered by permitting the relator to escape the payment of the tax in question.

Sixth. The writ of certiorari will be quashed, Rut, as above stated, if the relator desires to take testimony with regard to the matters set up in the return which it moved to strike out, it may have an order of reference for that purpose. I have not considered it necessary or important, for the protection of the rights of the relator, to direct such a reference before disposing of this case, because I am of the opinion that, if such matters be wholly disregarded, the writ should, nevertheless, be quashed, for the reasons hereinbefore set forth; and any testimony, therefore, which may be taken upon such a reference would not have affected the result so far as the present hearing is concerned.

The order will be settled on notice.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Central Trust Co., App’lt, v. New York Equipment Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December, 1893).

    1. Evidence—PAlton.
    In order to ascertain the intention and meaning of the parties where different instruments in relation to the same subject-matter are executed at the same time, such instruments are to be read together.
    2. Same.
    The literal form of instruments, not containing an express promise to pay, may be controlled by a contemporaneous document which contains a promise to pay and terms such instruments “promissory notes.”
    Appeal from judgment of special term sustaining defendant’s demurrer to the complaint.

      A. IT. Joline, for app’lt; T. Thacher, for resp’t.
   Van Brunt, P. J.

This action was brought upon eight instruments in writing, being declared upon separately. The complaint alleges as to each the plaintiff’s incorporation and that of the defendant; and that, on the 1st of April, 1889, the United States Rolling Stock Company and the defendant made and executed a certain agreement of lease, a copy of which is annexed to the complaint, and at the time of the execution and delivery of said agreement said defendant made and executed its twenty certain promissory notes in writing, in accordance with said agreement of lease, and that on or about the 1st day of April, 1889, said defendant made its certain promissory note, being one of the twenty promissory notes in writing above referred to, dated on the last mentioned day, wherein and whereby, for value received, it promised to pay without grace on the 1st day of J une, to the order of itself, at the office of the plaintiff, in the city of New York, forty-five hundred dollars, and said promissory note is then set out in haec verba.

The complaint then alleges that said note was thereupon duly indorsed in blank by the defendant, and as so indorsed duly transferred to the plaintiff, before maturity thereof and for value, and the plaintiff is now and ever since has been the holder thereof; that, at the maturity of said note, the same was duly presented for payment at the place therein specified and payment demanded and refused, and that the whole amount thereof, with interest from July 1, 1891, is now due and payable to the plaintiff from the the defendant.

The lease referred to in the complaint between the United States Eolling Stock Co. and the defendant The N. Y. Equipment Company, so far as it is necessary to state the same for a proper consideration -of the question presented upon this appeal, is as follows:

“ Equipment leased by the United States Eolling Stock Company, hereinafter called the lessor, to the New York Equipment Co., hereinafter called the lessee.

“ The lessee above named hereby acknowledges that it has leased from the lessor for a period of five years, and has taken into its custody ait Memphis, Tenn., the following railroad equipment and rolling stock, to wit: Three hundred (300) box cars, marked ‘Central Eailroad & Banking Company of Georgia,’ and numbered 2600 to 2899, both inclusive, and in consideration of the use of said property and the stipulations hereinafter contained said lessee agrees with said lessor as follows :

The said lessee agrees to pay the said lessor, as rent for the use of said property, the sum of $4,500 per quarter, which rent is evidenced by the twenty promissory notes, executed by said lessee for the sum of $4,500 each, payable, respectively, on the first day- of each successive quarter on and after the first day of July, 1889. Said railroad equipment and rolling stock were, at the time of the shipment, and still are, the exclusive property of said lessor, and said lessee agrees to hold the same until the determination of this lease, on or before the first day of April, A. D. 1894, at the lessee’s own risk, and on said first day of April, 1894, or the prior determination of this lease, the lessee shall and will return the same to the lessor in their present good order and condition, reasonable wear and tear alone excepted, and without excuse for non-delivery on account of any accident, unavoidable or otherwise, unless the same shall have been purchased by the said lessee from the lessor within the time and in the manner hereinafter specified.”

The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained, upon the ground that the written instruments set up in the complaint were not negotiable promissory notes, there being no promise on the part of the defendant to pay.

It is a familiar rule in the intepretation of statutes that the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute, as well as other circumstances. .A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although, by a technical interpretation, it is not within its letter. It is the spirit and purpose of a statute which are to be regarded in its interpretation, and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some of the provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers. People ex rel. Wood v. Lacombe, 99 N. Y., 43.

The same principle obtains in the interpretation of contracts. Contracts are to be construed so that they may have effect according to the intention of the parties, if that can be done consistent with the rules of law. Parshall v. Eggert, 54 N. Y., 18.

Many other cases might be cited sustaining this proposition, which, seems to be so self-evident as not to require the support of adjudications.

There is another familiar rule that, in order to ascertain the intention and meaning of the parties where different instruments in relation to the same subject matter are executed at the same time, these instruments are to be read together. Marsh v. Dodge, 66 N. Y., 533.

Applying these rules of construction to the instruments declared upon in the complaint, can it be for a moment doubted that it was the intention of the parties to the lease, out of which the instruments particularly declared upon arose, and which were executed at'the same time, that these latter instruments should be treated as promissory notes ? By the terms of this lease they say that the rent which is to become due is evidenced by the twenty promissory notes executed by said lease for the sum of $4,500 each, payable respectively, etc.

How the parties' to the lease having declared that these evidences of rent shall be promissory notes and considered as promissory notes, how can one of the parties to that instrument recede from the definition which it has put upon its own contract?

It is not necessary to go to law books and to quote adjudications in order to understand what the intention of the parties to this contract was. The defendant has declared what these instruments are, and has induced the other party to the contract to take them in that form, declaring them to have a certain legal effect, and when called upon to pay it says its declaration is untrue. We do not think for a moment that the defendant can stand in a court of justice and be permitted to raise such a plea.

It is urged, upon the part of the respondent, that these writings are not promissory notes because they do not contain any promise to pay; and that they are not acknowledgments of anything which is due, but of something which is to become due. But referring to the instrument out of which these papers grew, there is an express promise to pay the sum evidenced by these twenty promissory notes. The lessee, the defendant, agrees to pay to the lessor, as rent for the use of said property, the sum of $4,£>00 per quarter. The lessee is recited to be in possession of the property, which, is recited to have been leased from the lessor for the period of five years, and that the lessee has promised to pay the rent evidenced by these promissory notes. Here is a promise to pay, if nowhere else; although wé think it is a forced construction that, in the instruments themselves, a promise cannot be inferred when they are construed in connection with the instrument of which they formed a part. It seems to be clear, therefore, that the claim that these writings are mere statements that amounts will be due to the signer cannot for a moment prevail. This seems to be another absolutely convincing consideration that these parties supposed that they were making negotiable promissory notes to evidence the amount of rent which would fall due under the lease, and for the use of the property of which the lessee, the defendant, was in possession.

We are of opinion, therefore, that the judgment should be reversed, with costs, and with leave to the defendant to answer over upon payment of the costs below and of this appeal.

O’Brien and Parker. JJ., concur.


author: O’Brien", J.

text:
    Elizabeth D. De Lancey, Resp’t, v. Henry Piepgrass, Impleaded, etc., App’lt. Same, Resp’t, v. Same, App’lt. Same, Resp’t, v. Same, App’lt.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Appeal—Discretion.
    An order, which is addressed to the court below, is not reviewable in the court of appeals.
    2. Same—Void order.
    The latter court may not review a void order in an action when it does not affect a substantial right.
    8. Order—Correction.
    Where a party has, by using an order of the court for a purpose contrary to its intent and spirit, obtained an undue advantage which could and would have been guarded against had the unlawful purpose been disclosed when the order was made, the court has power to modify or amend the order, or grant a new order to correct the abuse of the former order.
    á. Ejectment—Restoration.
    Where, after such correction in an action of ejectment, the defendant again resumes possession of the premises and excludes plaintiff therefrom by force, the granting of an order, upon the application of the latter, that the former forthwith restore such possession, and thereafter desist from any physical resistance or interference with the latter’s possession, is within the power of the court.

      Appeal from an order of the general term of the supreme court in the second judicial department, made December 6, 1893, which affirmed an order of special term made on application of defendant..
    The order vacated a prior order setting aside a judgment herein and granting a new trial under § 1525 of the Code.

      George A. Black, for app’lt; Walter D. Edwards and John Hunter, Jr., for resp’ts.

       Dismissing appeal in 56 St. Rep., 181.

   O’Brien", J.

The rights of the parties to this action have been determined by this court when it was here on a former appeal, in so far as their claims were then presented. 138 N. Y., 26; 53 St. Rep., 930. In carrying out the judgment which was the result of that appeal, further controversies have arisen, and we are now asked to review three different orders made after judgment in the case. While there are three distinct appeals, yet the orders are all so related to each other that they can be more conveniently considered as one. The facts in the main case and the legal questions involved are very fully disclosed in the elaborate opinion on the former appeal. Our judgment, then rendered, having been remitted to the supreme court, the parties appeared before the special term, in pursuance of a notice, and. the court then inserted in the judgment the modification required by the decision, not in the words of the royal grant to Palmer, but, as was held, according to its substance and legal effect. Final judgment having been entered on the 19th day of June, 1893, amexecution requiring the sheriff to put the plaintiff in possession of the real property, which was the subject of the controversy, was issued and delivered to him on the 26th of June, 1893, and on that day the sheriff executed the process by delivering the possession to the plaintiff. On the 3d of July, following, the judgment was vacated, upon the application of the defendant, for the purpose of a new trial under the provisions of § 1525 of the Code. This order permitted the defendant to re-try every question involved in the issues, including the one which he now seeks to settle in a motion. The judgment and .execution had then been fully executed, the plaintiff had been put into possession, and the way was open to the defendant for another trial. It is to be inferred from what took place subsequently, that about this time the defendant’s counsel reached the conclusion that the judgment and execution, under which the plaintiff had recovered the property, were unauthorized by our decision, and that the proceedings of the sheriff in dispossessing the defendant were irregular. On the 17th of July he applied to the court for leave to vacate his own order granting him a new trial and to reinstate the judgment in order to enable him to apply for a modification of the judgment, conforming it, as he claimed, to the decision of this court, and also to vacate the execution, and all the proceedings, under it, as irregular and unauthorized. If this motion had been successful, the result would be to restore the property to the defendant, and thus practically to reverse all that had been done. The court was not only asked to do all this, but when done to again vacate the judgment for the purpose of another trial under § 1525. This application resulted in the first order which we are now asked to review. The court set aside the prior order vacating the judgment and granting a new trial. It modified and amended nunc pro tunc the judgment of June 26th by inserting in ipsissimis verbis the proviso in the Palmer patent. It amended the execution nunc pro tunc by conforming it to the amended judgment, and denied the other relief with leave to apply again to vacate the amended judgment for the purpose of another trial. The question that the learnee counsel for the defendant has pressed here with great earnestness is this, as we understand it. He claims that the defendant, notwithstanding the judgment, has still certain easements or riparian rights in or over the land which was the subject of this action that were ignored by the sheriff in delivering absolute possession to the plaintiff. In other words, he contends that the defendant, in virtue of his ownership of the uplands, has still, in respect to the premises in question, all the rights which this court has held pertain to riparian proprietorship. Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y., 79; 44 St. Rep., 248. This question was involved in the issue, and could have been litigated at the trial, but it was not, nor was it presented upon any of the appeals. There would be serious objection to the consideration of such a question in the way that it is now presented, and at this stage of the controversy, even if the defendant was not entitled to another trial. But as a party to an action for the recovery of real property is entitled to such a trial, it would be manifestly unwise to determine questions of such importance upon a motion in advance of the trial, even if our jurisdiction in this respect was conceded. The motion which the defendant made, resulting in the order appealed from, was one addressed to the discretion and favor of the court. It was an application to vacate his own order granting another trial, asserting at the same time that when the judgment and execution were disposed of in the manner requested, he would again apply to set aside the vacating part of the order. The court was not bound to grant such a motion. It could entertain it or not in the exercise of discretion. It granted the favor asked with certain amendments, qualifications and conditions which are not open to review in this court. The only power that this court has must be found in the second and third subdivisions of § 190 of the Code. We have power to review certain orders there specifically mentioned when they involve some substantial right and do not rest in discretion, but we can review no others. It would be difficult to show that this order involves a substantial right or a question of practice, or that it was made upon a summary application after judgment. But, however that may be, it was clearly one which resulted in the exercise of discretion, and that fact renders the decision of the general term final. In re Waverly Water Works, 85 N. Y., 478; Tyng v. Halsted, 74 id., 604; Quimby v. Clafin, 77 id.. 270.

The next order was made by the court on the 22d of July, 1893, under the following circumstances: It appears that after the defendant secured the amendment to the judgment and execution above referred to, he again resumed the possession of the premises embraced in the judgment, and excluded the plaintiff therefrom by force, and upon the application of the plaintiff he was ordered, forthwith, to restore such possession, and in the future to desist from any forcible or other physical resistance to or interference with the enforcement of the execution, or the officers of the court, or the plaintiff’s possession. It is urged that the court in making such order exceeded its powers. It is true that the ordinary way to enforce the mandate of the court in such case is through the sheriff, who may call to his aid the power of the county. Code, § 104. But where resistence is made to the execution of the process the resistors may be punished as for a contempt. § 105. The supreme court has general jurisdiction in law and equity, and possesses inherent power for the purpose of enforcing respect for and obedience to its judgments, not necessarily expressed in fixed precedents or statute law. It may be difficult to define this power, and it might be dangerous to apply it arbitrarily or in doubtful cases. The parties to the action were still subject to its jurisdiction, and the conduct of the defendant, as disclosed by the record, was such as to justify the court in using all the power it had to uphold its dignity and authority. It had the power to punish the defendant for contempt in case of resistance, and if so, the power to employ some milder .method of correction would seem to follow as a reasonable implication. If the defendant in an action of ejectment may, after the plaintiff has been put in possession, return and resume the possession by force, after a short interval of time, in defiance of the judgment, and the plaintiff has no remedy except a resort to some new and independent action or proceeding, then there is at once revealed an obvious defect in our methods of administering justice in such cases. The power of the court to prevent and punish resistance to the execution of its judgments and decrees is not exhausted until the purpose for which the judgment was rendered has been completely attained. It is true that a judgment for the recovery of the possession of real property is to be enforced under the Code by execution, but the question as to the power of the court to interpose in aid of that process while resistance is made or threatened to the duty imposed upon the sheriff is not neecessarily excluded. It is a fair inference from the facts disclosed that the real purpose of the defendant in applying for an amendment of the judgment and execution, was to establish some ground for resuming the possession under a claim of some easement or riparian right. It is not now important to determine whether his claim was well founded or not, as he had no right, even if it was, to assert it by excluding the plaintiff from possession or by such a mode of procedure.' Whatever may be the general rule with respect to the power of the court to aid by order the action of the sheriff in delivering possession to the successful party; and making such delivery effective and complete, in such cases, it is apparent that this case stands upon peculiar facts and circumstances. The defendant took advantage of a favor granted by the court in amending the judgment and execution by forcibly resuming the possession in contempt of the judgment. Had this purpose been disclosed when he was before the court asking the favor, it might well have been refused or granted, only upon the condition that no attempt would be made to disturb the plaintiff’s possession, which had been awarded to her by the judgment and secured by the exedution. When the real purpose of the amendments was disclosed to the court, it had power to amend or modify its former order, and insert in it any conditions which might have been inserted in the first instance. In short, before granting the favor which the defendant asked, it had the power to incorporate into it as a condition all the substantial provisions of the mandatory order appealed from, by forbidding any attempt to resume possession and directing that possession be restored if then resumed. Whatever power the court had originally it could exercise and make effective subsequently, when informed that its favor amending the judgment and execution had been abused by the forcible exclusion of the plaintiff from the possession in defiance of the judgment. The court had been induced to make an order which was used for a purpose never intended, and which would have been forbidden if that purpose of the defendant had been disclosed. Under such circumstances the court, in vindication of its own dignity and for the protection of the rights of the parties, had the power to undo all the mischief resulting from the modification of the judgment and execution which .it had been induced to make, and the order appealed from may be regarded as made for that purpose and under this general inherent power. It cannot, I think, be doubted that when a party obtains an undue advantage by using an order of the court for a purpose contrary to its spirit and intention, and which could and would have been guarded against had the unlawful purpose been disclosed when the order was made, that the court has power to deprive him of this advantage, resulting from an abuse of the order, by modifying or amending it, or granting a new order to correct the abuse. It seems to me that the power of the court to make the order in question can be upheld'upon this principle, and, having the power, the manner of its exercise was in its discretion.

But if it be conceded that the order was made without power, it would not follow that this court can review it. We cannot review even a void order in an action unless it affects a substantial right. How, what substantial right of the defendant did this order affect ? He certainly had- no right to resume possession by a strong hand after he had been removed by force of the execution, nor had he any right, by the use of force or threats, or any other device, to attempt to nullify the purpose of the judgment, and the order only commands him to submit to the decree of the court and to the action of the sheriff in carrying it out. If it be true, as urged by the learned counsel for the defendant, that such an order finds no warrant in any statute or rule of law, the fact still remains that it commanded nothing that the defendant was not bound to do without it. Granting that there was no power in the court at this time, or any other stage of the action, to command the defendant to obey in good faith the judgment and the execution, what possible harm, in any just or legal sense, has it done defendant ? It interfered with no right that he had or that he now claims, and if void, as contended, it was wholly ineffectual for any purpose. The only effect that it could have, under any circumstances, would be to suppress unlawful and wrongful resistance to the process of the court on the part of the defendant, but surely this does not affect any substantial right. On the defendant’s theory it was not even effectual for that purpose, unless he conóluded to obey it, and adopt the line of conduct that it suggested, which he was bound to do if it had never been granted. The third order was made on August 3, 1893, upon the defendant’s application to the special term held by another judge, to vacate the order last considered, and which application was denied. This order, therefore, must stand or fall for the same reasons as the preceding one. If the court had the power to make the prior order, then the necessity or propriety of setting it aside was matter of discretion. If it was without power, and no attempt having been made to enforce it by proceedings for contempt or otherwise, or if the defendant has elected to obey it voluntarily, it cannot be said that it affects any substantial right. We are, therefore, of the opinion that none of the orders appealed from affect a substantial right not resting in discretion within the meaning of § 190 of the Code, and that all the appeals should be dismissed, with one bill of costs in this court.

All concur, except Earl, J., who dissents as to the second order.

Appeal dismissed.


author: Finch, J.

text:
    Henry H. Isham, as Trustee, etc., Resp’t, v. Mary E. Post, as Adm’rx, etc., App’lt.

      (Court of Appeals,

      Filed January 23, 1894.)

    1. Bankers—Diligence.
    A banker, where a loss results from his failure to exercise ordinary skill and knowledge, is liable, though the services are gratuitously rendered by him.
    3. Same—Burden.
    After proof of delivery of money to.be loaned and returned on demand, and refusal to return on proper demand, the burden is upon the banker of affirmatively establishing that the loss was without his fault.
    3. Same.
    Where a loan is made by him for a customer upon certificates, on whibh the number had been raised, he is liable for an omission to inquire as to the solvency of the borrowers, who were reputed to be solvent and responsible, if there is no proof that such inquiry could or would have developed1 any different information from that which he already had.
    4. Same.
    In ordinary cases, at least where the official signatures are genuine, and nothing in the body of the certificates reasonably awakens suspicion, it is not evidence of negligence that the stock was taken as collateral without verification at the company’s office.

      5. Same.
    If a fair and reasonable examination of the papers will disclose the fraud to the skilled eye of an experienced banker, or awaken a suspicion which will lead to a verification, a finding of negligence is justified.
    6. Evidence—Bbokeb.
    In an action against a broker for negligence in loaning money upon forged certificates, an offer on his part to show that he lent §50,000 of his own money on similarly raised certificates as collateral, and that the certificates in question had deceived the skill of a large number of bankers and brokers who took and held them as collateral without suspicion, is competent.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made July 28, 1893, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special ■ term.
    This action was brought by plaintiff, as trustee, to recover of Augustus T. Post the sum of $25,000 alleged to have been placed in his hands to be loaned for plaintiff and to be returned on demand. After the death of Post the action was revived and continued against his administratrix.
    The facts, so far as material, are set forth in the opinion.

      Alfred My, for app’lt; Frederic A. Ward, for resp’t; Clarence D. Ashley, for cestuis que trustent, resp’ts.

         Reversing 54 St. Rep., 232.

   Finch, J.

The relation between the parties to this controversy must be regarded as that of principal and agent. Post was a banker; not a member of the Stock Exchange and so bound by its rules, but familiar with its customs and usages and controlled by them to some extent whenever dealing with stocks in the "Wall street market. He held himself out to the business world in that character. By his circulars he advertised himself as dealing in “ choice stocks ” and promised his customers “ careful attention ” in all their financial transactions. Those who dealt with him contracted for and had a right to expect a degree of care commensurate with the importance and the risks of the business to be. done, and a skill and capacity adequate to its performance. That care and skill is such as should characterize a banker operating for others in a financial center, and different in kind from the ordinary diligence and capacity of the ordinary citizen. The banker is employed exactly for that reason. Without it there might cease to be motives for employing him at all.

Isham was the trustee of an express trust, but in this dispute must be regarded simply as an individual, and without reference to his trust character. For the trial court has found as a fact that, in employing the banker to loan for him twenty-five thousand dollars, he gave no notice of the trust character attaching to the money, contracted apparently for himself, and left Post to believe and be justified in believing that the money was his own. The evidence on the subject admits of some difference of opinion, but on this appeal the finding must control.

In the same way the question whether Post’s services in making the loan were or were not to be gratuitous must be deemed settled. The finding is that those services were to be without compensation ; and on that ground the appellant claims that Post . was a gratuitous mandatary and liable only for gross negligence. But, while no compensation as such was to be paid, it does not follow that the banker was freed from the obligation of such diligence as he had promised to those who dealt with him, or was at liberty to withhold from his agency the exercise of the skill and knowledge which he held himself out to possess. Nothing in general is more unsatisfactory than attempts to define and formulate the different degrees of negligence, but even where the neglect which charges the mandatary is described as “gross,” it is still true that if his situation or employment implies ordinary skill or knowledge adequate to the undertaking, he will be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge. Story on Bailments, § 182a ; Shiels v. Blackburne, 1 H. Black., 158; Foster v. Essex Bank, 17 Mass., 479; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y., 295. In the latter ease it was said that ordinary care as well as gross negligence, the one being in contrast with the other, must be graded by the nature and value of the property and the risks to which it is exposed. Post, therefore, was required to exercise the skill and knowledge of a banker engaged in loaning money for himself and for his customers, because of the peculiar character and scope of his agency, because of his promise of careful attention, and because the contract was made in reliance upon his business character and skill.

We should next consider upon whom rested the burden of proof. The plaintiff alleged and proved that he put into Post’s hands, as his banker and agent, to be loaned upon demand at the high rates of interest prevailing and in the mode approved by custom and usage, the sum of twenty-five thousand dollars, which sum Post had not returned, but refused to return upon proper demand, and so had converted the same to his own use. That made out plaintiff’s case. Judgment for him must necessarily follow, unless Post in answer has established an affirmative defense. That which he pleaded and sought to prove was that the money was- lost without his fault and through an event for which he was altogether blameless. In -other words, he was bound to show that he did his duty fully and faithfully and without negligence or misconduct, so that the resultant loss was not his, but must justly fall upon the plaintiff. Marvin v. Brooks, 94 N. Y., 75; Ouderkirk v. C. N. Bank, 119 id., 267; 29 St. Rep., 573. With that burden resting upon him, we must examine his defense and the evidence given in its support, and determine whether or not it is our duty to sustain the adverse conclusion, to reverse which he brings this appeal.

The trial court has found that Post was negligent in making the loan upon the security of the certificates of stock taken as collateral, which had been raised by a forgery to indicate a larger number of shares than was the actual truth. Negligence is usually a mixed question of law and fact, and is never purely one of law unless the facts are wholly undisputed and admit of no conflicting ing inferences. Filer v. N. Y. C. R. R. R. Co., 49 N. Y., 47. In the face of the finding referred to we cannot reverse this judgment unless it clearly appears that upon no possible view of the facts, and upon no inferences deducible from them, can proof of negligence be found, or unless, in reaching the result, some material error in the admission or exclusion of evidence has affected the judgment rendered.

The finding of negligence, by its terms, rests upon three omissions. The admitted cause of the loss was a forgery of the number of shares of the stock given as collateral on the loan by raising that number in one certificate from seven shares to seventy, in another from eight to eighty, and in the third from three to ninety-three. The certificates were the genuine and lawful certificates of the company when issued, signed and attested by the proper officers, and defective only in the forgery which raised the number of the shares. The loan was made to Mills, Robeson & Smith, who were in good repute and standing at the time, but failed two days later for a very large amount. The trial court asserted Post’s liability upon the ground that he took the certificates without examination, without presenting them for verification at the office of issue or of registry, and without inquiry as to the solvency of the borrowing firm.

Assuming, as the court held, and as the facts of the agency appear to justify, that Post was bound to exercise in making the loan ordinary care, such as belonged to his business, as a banker, and to the duty he attempted to perform, we must consider the alleged omissions upon the facts disclosed in the record. In so doing we may dismiss the claim of negligence as inferred from the omission to inquire as to the solvency of the borrowers. There is no proof that inquiry would or could have developed any different information from that which Post already had. There is no hint of any unfavorable rumors preceding the failure, or of any doubt in any quarter of the solvency of the borrowing firm; but, on the contrary, the undisputed evidence is that they were reputed to be solvent and responsible when the loan was made. There is no indication that inquiry would have yielded to Post any different information from that vrhich he already possessed, or would have furnished the slightest reason for refusing the loan. There was certainly no negligence in omitting a new and further inquiry.

Nor do I think that ordinary care required Post, before accepting the certificates, to have presented them for verification, if there was nothing on their face calculated to arouse suspicion. They had been issued, as appears by their dates, more than six years before the loan was made, but had been issued directly to Smith, who was one of the borrowing firm, and of course knew that they were genuine when the stock was transferred to him on the company’s books. He had executed the usual blank assignment which enabled them to pass from hand to hand, and which had been attested by his firm, and no suspicion could attach to them except upon a doubt of Smith’s integrity, which no known fact warranted. There is no proof that it was ever a habit or custom for bankers or brokers to present such certificates for verification, and it is quite obvious that the business methods of Wall street do not admit of such a custom, suggest no necessity for its existence, and would be badly hindered and hampered by such a regulation; so that I am of opinion that, in ordinary cases, and at least where the official signatures are genuine, and nothing in the body of the certificates reasonably awakens suspicion, it is not evidence of negligence that the stock was taken as collateral without verification at the company’s office. Where there is nothing in the surrounding facts or on the face of the paper to create a doubt, it would be an instance of great and extraordinary care to present them for verification, and much beyond the degree of diligence required of Post in the present case.

There remains only the alleged omission' to give the certificates a reasonable examination. I am inclined to regard that question as sufficiently debatable to prevent our treating it wholly as a question of law. And that is true partly because of some serious conflict in the testimony, but mainly because of the inherent character of the inquiry, which is much more one of fact than of law. The evidence fairly indicates that Post personally never saw the certificates when the loan was made. In all his correspondence with Isham and when standing on his defense he made no such claim, but himself said he trusted too much to his clerks. Isham in one of his letters reminds Post of his having made that remark, and the latter does not dispute it. And as matter of fact the loan was negotiated and consummated by his managing clerk, Shephard, who was fully examined as a witness, and did not claim or pretend that he showed the certificates to Post at all. But Shepard was not incompetent. Enough appears in the evidence to indicate that he possessed the necessary skill and knowledge to properly perform the duty assigned to him. He held a responsible position in Post’s office, had an extensive and valuable experience, succeeded to Post’s business on his death, and testifies that he was familiar with and had handled very many of the certificates of the company whose stock was taken as collateral. We are not justified in saying that he did not examine the forged certificates at all, and the finding of the trial court cannot mean that. What it must mean in view of the facts is that he gave them no close and careful scrutiny. He does not pretend that he did. He says only that they were brought to him by the messenger of the borrower, and that he took them and gave Post’s check in exchange. Undoubtedly he recognized the familiar signatures and noted the number of shares represented; but there was nothing like careful scrutiny or examination, but unhesitating trust in the honesty of the borrowers. I cannot say, as matter of law, that such was the full measure of his duty, and that he did not hastily withhold more or less of the very skill and knowledge upon which Isham relied in selecting Post to loan for him the money. The answer made would be sufficient if it had been proved. The answer is that the forgery was so skillfully and deftly executed that no ordinary skill, exercised upon a reasonable examination, would have disclosed the fraud or even aroused suspicion. But we do not know that. The certificates themselves were before the trial judge, and what inference he drew from their inspection we cannot say. What we do know is that one of them, raised from three to ninety-three, was so skillfully changed that when Shephard and Isham examined it critically, after knowledge of the forgery, the latter thought it genuine. What Shephard thought he did not tell us, and omitted to say that what would have deceived the inexperience of Isham would also have deceived him.

But at this stage of the case the defendant realized the necessity of proof that the forgery was deft enough to deceive the skill and knowledge of any ordinary banker dealing in such securities. As I look at it the point had become vital to the defense. If a fair and reasonable examination of the papers, in the room of a hurried and momentary glance would have disclosed the fraud to the skilled eye of an experienced banker, or awakened a suspicion which would have led to a verification, then I think a finding of negligence would be justified. But if, on the contrary, the forgery was such as to deceive any reasonable scrutiny of a fairly prudent banker, knowing the signatures, but not suspecting fraud in the body of the instruments, then scrutiny would have done no good and the deception suffered would be excusable. Just that the defendant sought to prove in two ways. He offered to show, first, that he himself had loaned $50,000 of his own money to the same borrowers, accepting in part similar raised collateral; and, second, that for several years the same identical raised certificates had been given and received on the street as collateral for loans, and deceived the skill and care of a great number of bankers and brokers, who took and held them without suspicion. Both offers of proof were refused and the evidence excluded. I think that was error. The proof would have shown, at least, the character of the forgery, and that Shephard was not in fault for not discovering it. It would have established Post’s absolute good faith in the transaction and that he took the same care of Isham’s money as of his own. Of course it was not admissible to show merely that some others were no more prudent than Post, or that his own fault was less because they did the same, but it was admissible to prove that Shephard was deceived by a forgery so perfect and skillful that it escaped for years the vigilance of the street. With that fact in the case added to what already appears, I should deem the defense sufficiently established. It was objected to this offered evidence that it might involve an examination of each separate transaction with others. That was not proposed or necessary. The witness testifying was Watson. He had been the.clerk of Mills, Bobeson & Smith for eleven years, and had charge of all their loan business. The offer was to prove by him that for years these raised certificates had been used on the street as collateral for loans without a suspicion on his part, and baffling the skill and knowledge of banks, brokers and business firms of experience and reputation. It seems to me, if that is the truth, that no fact could more conclusively establish the perfection of the forgery and more completely excuse and justify the failure of Shephard to discover it. What was permitted to be proved makes the existence of such a fact quite probable. The certificate raised from three to ninety-three was well enough done to have deceived Isham, and, as to the others, it was much easier to change seven to seventy and eight to eighty without attracting notice. If this occurrence has disclosed a new danger in the business methods of the stock market, it may serve at least as a warning, and tend to make more deliberate inspection and closer scrutiny an ordinary duty.

■ The judgment should be reversed and anew trial granted, costs to abide the event.

All concur, except Babtlett, J., not sitting.

Judgment reversed.


text:
    In the Matter of the Cancellation of the Name of Matilda Joslyn Gage on Registry List of Election District, etc.

      (Court of Appeals,

      Filed January 16, 1894.)

    Constitutional law—Female suffrage.
    Chapter 214 of 1892, conferring upon women the right to vote for school commissioners, is unconstitutional.
    Appeal from order of the general term of the supreme court in the fourth judicial department, made November 21, 1893, which affirmed an order of a justice of the supreme court, made at chambers, striking the name of Matilda Joslyn Gage from the registry list of the third election district of the town of Manlius, Onondaga county.
    The facts, so far as material, are set forth in the opinion.

      Louis Marshall, for app’lt; W. P. Qoodale, for Resp’t.
   Finch, J.

The question argued on this appeal is whether a woman may vote for school commissioner in her proper district within the state, and it arose in this manner: An act of the legislature, Laws of 1892, chap. 214, provides that “ All persons without regard to sex, who are eligible to the office of school commissioner and have the other qualifications now required by law, shall have the right to vote for school commissioner in the various commissioner districts of the state.” The act further requires that the persons so entitled to vote shall be registered “.as provided by law for those who vote for county officers; ” that the county clerk shall prepare and distribute the prescribed ballots, and the inspectors of election shall receive and count the same. Acting under this authority Mrs. Gage was duly registered in the third election district of the town of Manlius on October 21, 1893. The board of inspectors were formally requested to remove her name from the registry, but refused to comply with the demand, whereupon an application was made to a justice of the supreme court pursuant to § 37, chapter 680 of the Laws of 1892, to strike her name from the registry, on the sole ground that she was not a lawful voter by reason of her sex. That application was granted, the learned judge holding that the act conferring upon her the right to vote for school commissioner was unconstitutional. The inspectors obeyed the order. Mrs. Gage appealed to the general term, where it was affirmed, and from that affirmance brings her appeal to this court.

While it is true that the election of 1893 has passed, and the possibility of voting on that occasion is absolutely gone, it does not necessarily follow that the question involved has become purely abstract and divested of any practical results consequent upon its decision. The order made determined the status of the voter under the act of 1892, and settled her right for future elections ; and if a wrong has been done it is not easy to discover any practical remedy except through a reversal of the order which was granted. Both parties concur in seeking a final decision upon the constitutional question involved, and we are of opinion that the case presented requires of us its determination.

The learned counsel for the appellant states very frankly and accurately the sole inquiry upon which the decision depends. He concedes that under article 2, § 1, and article 10, § 2 of the constitution, no woman has the right to vote for constitutional officers, because the franchise is conferred explicitly upon male citizens; ” but he contends that school officers are not such constitutional officers, because the practical interpretation of that instrument has long and invariably been to the contrary. That is true and only true of the officers of the school district, as the fundamental unit of the school system. The trustees of such a district are the authorized business managers of the school within its boundaries, and the legislature has always assumed, and been permitted to assume, the right to determine who might vote for such trustees, and what qualifications should or should not be requisite and necessary. To that class of school officers intrusted with the government and control of the simple school district, by itself alone and within its own boundaries, the constitutional provisions have never been applied ; but I have yet to find an instance in the statutory history of the state prior to the act in question, where an officer whose authority was not confined to the school district, but extended over many of them, with a power of superintendence and control, has been regarded as anything other than a town or county officer and within the constitutional provisions. Under the Revised Statutes the superintending officers were three commissioners and three inspectors of common schools. 1 R. S., 340, § 3. These were town officers, to be chosen by the constitutional electors (§ 1) and by ballot. Id., 343, § 2. In 1843 these officers were abolished (chap. 133, § 1), and in their place was substituted (§ 2) a town superintendent of common schools, to be annually elected in the same manner as “ other town officers ” are chosen, and upon whom the duties of inspection and superintendence were imposed. He was also a town officer and chosen by the constitutional electors. In 1864 (chap. 179) the system was again changed by providing first for the appointment and then for the election of school commissioners. The terms of the statute show that they were still regarded as within the constitutional provisions, and were county officers, as their predecessors had been town officers. Where a county constituted a single assembly district the supervisors were to choose “ for their county ” an officer to be called school commissioner. § 1. Where a county had more than one assembly district a commissioner for each of such assembly districts was to be chosen. § 2. So far the office created pertained to the known constitutional divisions of the state, and its incumbent was clearly a county officer. The situation was not changed by the further provision allowing a single county constituting but one assembly district the selection of two commissioners, and dividing the county into sections for that purpose. § 4. No town was to be divided in the process, and the commissioner of one section could discharge his official duty in the other section upon the written request of its commissioner. § 7. Under the act of 1864, chap. 555, title 2, § 11, he is required to do so upon the command of the superintendent of public instruction. Under the law of 1856 the appointment by the boards of supervisors was but temporary. At the annual general election of 1857, the officers became elective, and it was provided that “ all the provisions of law relating to the mode of voting and of canvassing the votes for the county officers shall apply to and govern the election of such commissioners.” If it be a just criticism that this provision was merely model, that may have furnished a reason why, for a plainer exposition of the intended meaning, the language was changed in the general act of 1864. It there reads (§ 3, title 3): “ The laws regulating the election of, and canvassing the votes for, county officers, shall apply to such elections.” Who may vote for county officers is an essential part of the laws “ regulating ” their election, for it has been held that into those laws is to be read the constitutional definition of an elector as if it had been specially repeated therein. People v. Barber, 48 Hun, 198; 15 St. Rep., 601. It follows that there are two definite and distinct classes of school officers, which are those of the school district, the unit of the system, and those of superintendence over a larger or smaller number of such units aggregated; and that the latter are and always have been as clearly either town or county officers as the former have not been. I am unable to see, therefore, that any practical construction, prior to the act of 1892, has ever been given to the constitution which takes the elective officers charged with superintendence out of the category of constitutional officers, or puts a constituency behind -them having other qualifications than those necessary for the election of town and county officers.

The Constitution, in article 2, § 1, prescribes the qualifications .of voters “ for all offices that now are' or hereafter may be elective by the People," and confines the franchise specifically to “ male citizens." The office of school commissioner was- one thereafter made “ elective by the people ” through the opération of the alternative given by article 10, § 2, which provides that “ all officers whose offices may hereafter be created by law shall be elected by the people or appointed as the legislature may direct.” That is, in such cases it may choose between election and appointment, and in the latter event may dictate the authority and mode of appointment. The legislature chose that the office should be elective, and becoming such, it fell within the scope and terms of the constitutional provisions applicable to elections by the people. The only possible answer was the one which was attempted and derived from a supposed practical construction. We have seen that the facts do not justify that answer. Indeed, the cases cited from other states do not go far enough to support the appellant’s argument. In Belles v. Burr, 76 Mich., 1, the question was over the election of a school district trustee. In Wheeler v. Brady, 15 Kansas, 26, the controversy concerned a school district treasurer. In State v. Cones, 15 Neb., 444, the voting was at a school district meeting. In Plummer v. Yost, 33 N. E. Rep., 191, the election was of members of the board of education. And the opinion of the judges,' 115 Mass., 603, related to the right of a woman to be a member of a school committee. On the other hand, when the question arose in Kansas, not of voting at a school district meeting, but for a county superintendent of schools, the court deemed it almost too clear for argument that a woman could not vote for the latter officer. Winans v. Williams, 5 Kansas, 133.

It seems to me needless to prolong the discussion. A constitutional convention may take away the barrier which excludes the claimed right of the appellant, but until that is done we must enforce the law as it stands.

The order should be affirmed, but, as stipulated, without costs. All concur

Order affirmed.


author: Gray, J.

text:
    Alfred T. White et al, App’lts, v. The Inebriates’ Home for Kings County, Imp’ld, etc., et al., Resp’ts.

      (Court of Appeals,

      Filed January 23, 1894.)

      1. Appeals—Court op Appeals.
    An order denying a temporary injunction in an action, in which there are no controverted facts, and the complaint presents simply a question of law is reviewable in the court of appeals.
    2. Inebriates’ Home for Kings County—Statutes.
    The provision of § 1, chap. 687 of 1872, as amended by § 4, chap. 169 of 1877, was not repealed by the city charter of 1888.
    3. Same—Local act.
    Such act is not a special or local act, within the meaning of the repealing clause of said charter.

      4. Constitutional law.
    Chapter 169 of 1877 is not violative of § 11, article 8 of the state constitution.
    5. Statutes—Amendment.
    An enactment, however amended in its provisions and however incorporated in the amendments, may be further amended by reference to the statute, in which it originally appeared.

      Appeal from order of the general term of the supreme court in the second judicial department, made December 5, 1893, which affirmed an order of special term denying a motion by plaintiffs for a temporary injunction.
    In the general term it was adjudged, as the ground for the affirmance, that chapter 169, Laws of 1877, was constitutional, has not been repealed and authorizes the comptroller of the city of Brooklyn to pay to defendant, the Inebriates’ Home for Kings county, fifteen per cent, of the moneys collected after April 1, 1887, for licenses.
    The facts, so far as material, are stated in the opinion.

      B. Burnham Moffat, for app’lts; James G. Church, for resp’ts.

       Affirming 56 St. Rep., 194

   Gray, J.

This is an action by taxpayers to restrain officials of the city of Brooklyn from paying certain moneys to the Inebriates’ Home for Kings county. An application for a restraining order was denied pendente lite, and that order was affirmed by the general term. An appeal was taken from the order of affirmance to this court. There are no controverted facts, and the complaint presented but a question of law, which was, in fact, determined adversely by the denial of the motion for an injunction. The form of the order below, by adjudging upon that question, and disposing of the issues, raises a question of law, which we can review here. Birge v. Berlin Bridge Company, 133 N. Y., 477; 45 St. Rep., 874.

The “Home” was incorporated under chapter 843, Laws of 1867, for the purpose of receiving inebriates, entering voluntarily or by order of the trustees. Its objects were declared to be reformatory, and its operation and powers comprehended the county of Kings. This act, and subsequent amendatory acts, provided for the raising of revenues by appropriating a certain proportion of the excise moneys of Kings county and of the city of Brooklyn.

By section IY of chapter 169 of the Laws of 1877, it was finally provided that the city comptroller shall pay to the treasurer of the “Home” fifteen per cent, of the moneys received for licenses granted, and that the board of excise commissioners of the towns of Kings county shall also pay to the treasurer fifteen per cent, of the moneys received for licenses granted by them. It is claimed that that act was repealed by chapter 583 of the Laws of 1888, commonly known as the city charter. That act provided, in section 35 of title XXII, for the repeal of “All local and special acts, passed prior to June 1, 1888, relating to the corporation of the city of Brooklyn, or to the administration of property and affairs of said corporation.” We think’ that the act of 1877 in question can only be said to be in a sense, and relatively to the rest of the state, local. The title was “An act to provide means for the support of inebriates for Kings county,” etc., and the scope of its action was over the whole county. It would be a misuse of terms to classify it with the local and special acts to be affected by the repealing clause of the city charter. Relatively to the county the act was general in its objects and provisions. Incidentally it touched the local administration of the city of Brooklyn. In the revision and combination of existing special and local laws affecting the city, which chapter 583 was designed to effect, it is but reasonable to suppose that the acts intended to be combined were such as directly, and only, concerned the municipal administration. We should not extend its operation of exclusion or repeal to acts, which affect the city only as it is part of a subdivision of the state; unless compelled to do so by express language. It is further insisted that § 4 of the act of 1877, referred to, is a nullity. That result is reached by the appellants by comparing the provision of a prior act amendatory of the original act. In 1872 an act was passed (Laws, chap. 687), which, in its first section, provided with respect to the appropriation of certain percentages of city and county excise moneys. In 1875 (Laws, chap. 627, § 3) section 1 of the act of 1872 was amended “ so as to read as follows,” etc.; and by the use of that language and because of the amendment containing all the provisions of the amended section with other new ones, it is, in substance, claimed that § 1 of the act of 1872 was so merged and lost in the amending section as to be incapable of the reference and amendment contained in the act of 1877. In support of this the case of People v. Wilmerding, 136 N. Y., 368; 49 St. Rep., 651, is relied upon. But that case is no authority for any such proposition. There the question was as to the effect of the repeal of a statute, which had incorporated by amendment an earlier enactment, upon that earlier enactment, and it was held that it also was repealed. The principle of the decision, upon that point, was that the repeal of the amending act did not operate to revive the earlier or original act. But here there was no case of repeal. The act of 1877 simply further amended a legislative provision for raising revenues for the “ Home,” contained in the act of 1872. That the provision was amended by the act of 1875, so as to read as in that act stated, did not prevent a further amendment of the original statute by the legislature in 1877, so that the section, in course of amendment, should read as prescribed in the changed form. There is good reason for holding, as we did in the Wilmerding case, against an indirect revival of a statute once repealed, by a repeal of the repealing act; but none for holding that an enactment, however amended in its provisions and however incorporated in the amendments, may not be further amended by reference to the statute, in which it originally appeared.

The only remaining point to be noticed is that the provisions of chapter 169 of the Laws of 1877, respecting the payment of the excise moneys by the city, violates § 11 of article 8 of the constitution of the state. That section forbids the giving by a city of moneys or property in aid of persons, associations, or corporations ; but makes an exception in the case of “ aid or support of its poor as may be authorized by law.” We think the objects of this legislative enactment do comprehend an aid and a support of a very necessitous and helpless class of the poor of the city. In the performance of its charitable and reformatory duties, the trustees of this corporation are empowered to receive and care for drunkards in jails or penitentiaries. Thereby the community is relieved of the burden of caring for them, pro tanto. The case of Shepherd's Fold v. Mayor of New York, 96 N. Y., 137, is sufficient authority upon the point. There the corporate objects were to receive, support and educate orphan, or friendless, children. The decision asserted the obligation of localities to provide for their poor, and held that the constitutional inhibition did not prevent carrying out designated charities through the instrumentality of private corporations; but the giving away of the moneys of the state, or of its counties, or local divisions; except for the designated purposes for which each is authorized to provide. That this act comprehends a provision for the poor of the city and of the county is evident. In terms, the 4th section of the act of 1877 provides that the excise moneys “ shall be paid to the treasurer upon the presentation of a * * * resolution * • * * declaring that it is necessary for the care and maintenance of the indigent poor treated therein,” etc. We can see no violation of the constitution; but, rather, an effectuation of a municipal duty to aid the poor through a duly authorized instrumentality.

For the reasons given, we think the order below was right and should be affirmed, with costs.

All concur.

Order affirmed.


text:
    The People, Resp’t, v. Charlotte Ewer, App’lt, In the Matter of the Petition of Charlotte Ewer for writs of Habeas Corpus and Certiorari, etc.

      (Court of Appeals,

      Filed January 30, 1894.)

    1. Criminal law.—Exhibitions.
    The inalienable right of a child of immature years to pursue a trade is limited to such as the state, as parens patriae recognizes as proper and safe.
    2. Same.
    The provision of § 292 of the Penal Code applies to all exhibitions or shows.
    3. " Same.
    Such provision is not violative of any right secured by the constitution, but is within the police power of the legislature.
    Appeal from order of the general term of the supreme court in the first judicial department, made July 3, 1893, which affirmed an order of special term overruling demurrers of the relator to returns to writs of 'habeas corpus and certiorari, dismissing said writs and remanding her to custody.
    Charlotte Ewer was arrested, upon a police magistrate’s warrant, charged with a misdemeanor, in violating § 292 of the Penal Code, by exhibiting her child, Mildred Ewer, as a dancer at the Broadway Theatre in New York city. The examination before the magistrate sustained the charge and showed that she was of the age of seven years and went by the stage name of “ La Eegaloncita; ” that she was clad in the usual style of the ballet dancer, in a low-necked, sleeveless and short dress and wore purple tights; that she danced upon the stage to the music of an orchestra, elevating her legs, moving upon her toes, and posturing with her figure. Her mother, being held upon the charge, sued out writs of habeas corpus and certiorari; to which the magistrate made return of his proceedings etc. The prisoner demurred to the return; alleging that there were no sufficient grounds for holding her and that the statute, under which she was arrested, was unconstitutional.
    The provisions of the Code under which this arrest was made, read that “a person who * ■* * exhibits * * * a female child apparently or actually under the age of fourteen years, * * * or who, having the care etc. of such a child as parent etc. * * * in any way consents to the employment or,exhibition of such a child either as * * * a dancer * * * or in a theatrical exhibition * ■» * or jn any * * exhibition dangerous or injurious to the life, limb, health or morals of the child * * * is guilty of a misdemeanor.” At the special term, the writs were dismissed and the prisoner was remanded. The order of that court was affirmed at the general term and the defendant has appealed to this court.

      A. J. Hittenhoefer, for app’lt; JE lbridge T. Gerry, for resp’t.

      Affirming 54 St. Rep., 348.

   Gray, J.

The question we shall determine upon this appeal is, whether the statute, under which the appellant was arrested, violates any j ust and personal rights secured to her by the constitution of the state. If it is such an interference with the legal relation of parent and child as exceeds the limits within which the legislature, exercising the sovereign power of the state, may regulate and control that relation, then it is the duty of the courts to declare its unconstitutionality. But if it is within a proper and legitimate exercise of legislative functions, the courts may not interfere. This question falls within those which are classified under the head of the police power of the state. The extent of the exercise of that power, with which the legislature is invested and which it has so freely exerted in many directions, within constitutional limits, is a matter resting in discretion ; to be guided by the wisdom of the People’s representatives. It is difficult, if not impossible, to define the police power of a state; or, under recent judicial decisions, to say where the constitutional boundaries limiting its exercise are to be fixed. It is a power essential to be conceded to the state, in the interest and for the welfare of its citizens. We may say of it that when its operation is in the direction of so regulating a use of private property, or of so restraining personal action, as manfestly to secure, or to tend to the comfort, prosperity, or protection of the community, no constitutional guaranty is violated, and the legislative authority is not transcended. But the legislation must have some relation to these ends; for, to quote the expressions of Mr. Justice Field in the Slaughter House Cases, 16 Wallace, 36, “under the mere guise of police regulations, personal rights and private property cannot he arbitrarily invaded.” In People v. King, 110 N. Y., 418 ; 18 St. Rep., 353, it was well observed by Judge Andrews: ‘-By means of this power, the legislature exercises a supervision over matters affecting the common weal. * * * It may be exerted whenever necessary to secure the peace, good order, health, morals and general welfare of the community, and the propriety of its exercise, within constitutional limits, is purely a matter of legislative discretion, with which courts cannot interfere.” The assumption of the exercise of this extraordinary and very necessary power has been the subject of severe criticism in the opinions of judges, when it has been sought thereby to regulate and control in the interest of the public the conduct of corporate or individual business transactions. Munn v. State of Illinois, 94 U. S., 113, may be referred to as starting a current of authority in this country. But no such criticism can find just grounds for caviling at legislation, whose ends- clearly tend to promote the health or moral well-being of the members of society. To that class of legislation this statute belongs. By preventing the exhibition of children of tender and immature age upon the theatrical, or other public, stage, the legislature is exercising that right of supervision and control over the child, which, in every civilized state, inheres in the government, and which nothing in the legal relations of parent and child should be deemed to forbid. The proposition is indisputable that the custody of the child by the parent is within legislative regulation. The parent, by natural law, is entitled to the custody and care of the child, and, as its natural guardian, is held to the performance of bertain duties. To society, organized as a state, it is a matter of paramount interest that the child shall be cared for, and that the duties of support and education be performed by the parent or guardian; in order that the child shall become a healthful and useful member of the community. It has been well remarked that the better organized and trained the race, the better it is prepared for holding its own. Hence it is that laws are enacted looking to the compulsory education by parents of their children, and to their punishment for cruel treatment; and which limit and regulate the employment of children in the factory and the workshop, to prevent injury from excessive labor. It is not, and cannot be, disputed that the interest which the state has in the physical, moral, and intellectual well being of its members, warrants the implication, and the exercise, of every just power which will result in preparing the child, in future life, to support itself, to serve the state, and in all the relations and duties of adult life to perform well and capably its part.

In the brief of the able counsel, who appears for the People, and -whose earnest efforts, in behalf of the cause of humanity and of mercy have so distinguished him, the discussion of the subject upon these lines is quite full and interesting. Indeed the learned counsel for the appellant does not, in the main, contest the right and the duty of the staté to protect and to promote by adequate legislation the health and morals of its citizens; but bases his arguments here upon the proposition, substantially, that the legislature cannot take from parents the right to employ their children in any lawful occupation, not indecent or immoral, or dangerous to life, limb, health or morals. That proposition may be readily conceded. It is true enough that if the court could say that this legislation was an arbitrary exercise of the legislative power, depriving the parent of a right to a legitimate use of his child’s services; that, while ostensibly for the promotion of the well being of the children, in reality it strikes at an inalienable right, or at the personal liberty of the citizen, and but remotely concerned the interests of the community, it would be its duty to so pronounce and to declare its invalidity. But this legislation has no such destructive tendency or effect. It does not deprive the parent of the child’s custody, nor does it abridge any just'rights. It interferes to prevent the public exhibition of children, under a certain age, in spectacles, or performances; which, by reason of the place or hour, or the nature of the acts demanded of the child performer, and of the surroundings and circumstances of the exhibition, are deemed by the legislature prejudicial to the physical, mental or moral well being of the child, and, hence, to the interests of the state itself. Take the facts of this case, and they ■ seem sufficiently to warrant the interference of the law. It is not necessary to reason upon them. The scanty dress of the ballet dancer, the pirouetting and the various other described movements with the limbs and the vocal efforts cannot be said to be without possible prejudice to the physical condition of the child; while in the glare of the footlights, the tinsel surroundings, and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence, as to unfit it for the stern realities and ex-actions of later life. The statute is not to be construed as applying only when the exhibition offends against morals or decency; or endangers life or limb by what is required of the child actor. Its application is to all public exhibitions or shows. That any and all such shall be deemed prejudicial to the interests of the child, and contrary to the policy of the state to permit, was for the legislature to consider and say.

The right to personal liberty is not infringed upon, because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exceptionally endowed. The inalienable right of the child, or adult, to pursue a trade is indisputable; but it must be not only one which is lawful, but which, as to the child of immature years, the state, or soveriegn, as parens patriae, recognizes as proper and safe. It is not the strict moralist’s view, dictated by prejudice, but the view from the standpoint of a member of the body politic, which ranges the judgment in support of legislative interference to restrain the parent from permitting an employment of the child, under circumstances deemed unsuited to its proper mental, moral or physical development. In the judgment of the legislature, it was deemed as unsuitable for the youth of the community, under a certain age, to dance or perform in public exhibitions, in the ways mentioned, as it was deemed unsuitable for them to work in the factory, except under certain limitations as to age, hours, etc.

We have not overlooked certain cases, referred to by the appellant’s counsel, to show the invalidity of this legislation as an exercise of the police power of the state; or to show a violation of constitutional rights. They establish that the legislature has no right, under the guise of protecting health or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation. Such were the Matter of Jacobs, 98 N. Y., 98; People v. Marx, 99 id., 377; People v. Gilson, 109 id., 389; 16 St. Rep., 185; People v. Rosenberg, 138 N. Y., 410; 53 St. Rep., 1.

We are referred to some cases in Illinois; but they are neither applicable nor authoritative upon the question before us.

Further discussion is unnecessary. We might have remained satisfied with the able and clear exposition of his views by the learned justice at the special term, had not the range taken by the arguments of counsel seemed to call for a brief expression by us of our view of the principle of state interference.

The order should be affirmed.

All concur.

Order affirmed.