author: Danforth, J.

text:
    In re Petition of Kings County Elevated Railway Co., to Acquire Lands of Ernest Natan. Same to Acquire Lands of John O’Brien. Same to Acquire Lands of Mary Duane.

      (Court of Appeals,

      Filed March 22, 1887.)

    1. Eminent domain — Laws 1875, chap. 606 — Application for commissioners TO BE SWORN TO BY ONE OE THE SUBSCRIBERS.
    The application on which commissioners are to be appointed to determine the necessity of a proposed, road under chapter 606, Laws 1875, requires only to be verified upon oath before a supreme court judge, that is,»by a .witness upon oath before him to have been really signed by the persons whose names are thereto appended.
    2. Same—Organization of corporation.
    Petitioners publicly invited plans for construction, etc., of their railway, and the commissioners performed all the duties prescribed by said act, and a copy of their report, certificate and articles of association and affidavit, filed January 6, 1869, certified by the secretary of state, was in evidence. Held, that the company on that day acquired the franchise of being and acting as a corporation.
    3. Same—Consent of common council.
    Where it has been determined that a steam railway is necessary, and commissioners have fixed its route through a street and determined the manner and time of its construction, and it remains to' find a company willing to build the road, and for the common council by its consent to enable them to do so: Held, that neither the company when organized nor the common council could add to or take away from the terms or the conditions before provided and imposed by the commissioners.
    4. Same—Giving conditional consent.
    If the common council could qualify their consent by a condition imposing the payment of a certain sum yearly to the city (as to which qumre), it is nevertheless a condition which could not be performed until after the road was constructed and in running order, and a bond for its payment is not required to be given by the company before it has acquired the right of way.
    5. Same—Cannot decide as to damage to property owners.
    A resolution that a railway shall receive the consent of the common council, provided “that it shall consent that the city assessors shall arbitrate all damages caused to property owners by the construction of the road,” is repugnant to the statute.
    6. Same—Failure to complete road.
    The commissioners provided that delays caused by pendency of legal proceedings, the delays or interference of the public authorities “or otherwise,” should not be taken as a part of the time within which the road must be completed. Held, the “ otherwise ” included the time between the date of the resolution of the commissioners and the incorporation of the company and should not be counted against it, nor the time used in obtaining consent of property holders or its equivalent, that of the common council.
    7. Same—Forfeiture to supervisors.

      Held, that as the legislature had not annulled or dissolved the incorporation of the petitioner as they might have done, and no judgment of forfeiture has been rendered in any suit, nothing has yet passed from the company to the supervisors under Laws 1875, section 7.
    Appeal by petitioner, from an order of the supreme court, general term, second department, affirming an order of special term, Kings county, refusing to appoint commissioners of appraisal.

      George F. Comstock, George Shea and Leslie W. Russell, for app’lt; George W. Wingate, for resp’t.

       Reversing 1 N. Y. State Rep., 512.

   Danforth, J.

The appellant by proceedings instituted April 8, 1886, sought to have an easement or interest appurtenant to certain lands abutting on Fulton street, in the city of Brooklyn, appropriated to its use for railway purposes; and to that end applied by petition to the court at special term for the appointment of commissioners of appraisal. It was there denied, not in the exercise of discretion, but upon the ground as stated in the order, “that the petitioner had never obtained the consent of the local authorities of the city of Brooklyn to the construction of its road in Fulton street.”

Upon appeal to the general term, the order appears to have been affirmed upon the further ground that by reason of certain defaults on its part, or non-compliance with conditions imposed by its articles of association, the petitioner had lost its corporate powers, including the right to take proceedings for the condemnation of private property for public use.

The petitioner was organized as a railway company, under chapter 606 of the Laws of 1875, which provides for the construction and operation of a steam railway or railways in the counties of this state, and on the performance of certain conditions imposed by that act, is permitted to exercise the power of eminent domain over lands, or any interest therein necessary for the construction or operation of its road, in the manner or by special proceedings prescribed thereby. Section 17.

For that purpose there must be a company duly incorporated, and which, having complied with the conditions named in the act, has the power and the intention in good faith to construct and finish a railroad to and from the places named in its articles of association; Section 18; and unless these facts are alleged, and upon hearing found to exist, the petition cannot be maintained.

It is not denied that the petition at the bottom of these proceedings was in the form, and set out all the facts, made essential by statute; but the question raised by the answer to the petition in each case, and now relied upon by the learned counsel for the respondent, includes not only those on which the special and general terms of the court below put their decision, but one going to the very existence of the petitioner.

So we have before us three material propositions; 1, that the company never acquired a corporate existence; 2, that it never performed the conditions imposed by the act of 1875 (supra), and therefore lost its franchises; 8, that it never obtained the consent of the local authorities having control of that portion of Fulton street upon which it was proposed to construct the railway.

First. The act relating to the formation of these corporations (Laws of 1875, supra), prescribes that whenever it shall be made to appear to the supervisors of the county or the mayor of the city, as the case may be, by the application of fifty reputable householders and taxpayers, verified upon oath before a justice of the supreme court, that there is need in their county of a steam railway, commissioners shall be appointed, who, if they find such railway necessary, shall fix and determine its route or routes, “ provided that the consent of the owners of one-half the property bounded on (or in lieu thereof, the consent of commissioners appointed by the supreme court), and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railway, be first obtained.” Sections 1 and 5.

In this case the application on which commissioners were appointed to determine the necessity of the proposed road is conceded to have been signed by the requisite number of qualified persons, and to have been sufficient in form. But it was verified by one of the subscribers only; and therefore it is contended by the learned counsel for the respondents that it was insufficient to give jurisdiction to the mayor to entertain and pass upon the application, his claim being that each subscriber should have made oath.

We think the statute was satisfied. It requires only that the application shall be verified upon oath, before a supreme court judge, that is by a witness upon oath before him to have been really signed by the persons whose names are thereto appended. Sixty names appear, upon the application. One affiant stated that he knew each of the persons represented by those names, save five, and saw them sign it; another said the same as to four of these five; and a supreme court judge certified that these statements were sworn to before him.

The application was therefore duly verified, and the order appointing the commissioners justified.* It was made on the 23d of March, 1878, and it is conceded that the persons thus appointed, duly qualified as required by law (section 4) , and entered upon and executed their duties. They, thereupon, by public notice, invited plans for construction and operation of such railway “upon the route or routes, and in the locations there'tofore determined by them ” (section 5) , and many other things relating to the running of the road and the amount of capital stock of “ the company to be formed for the purpose of constructing, maintaining and operating such railway. Section 9.

It is by the act {supra) made the duty of the commissioners to prepare articles of association for a company to be formed and to set forth therein the particulars, requirements and conditions imposed by the commissioners, pursuant to the sections above referred to, and which the statute says “ shall provide for the release aud forfeiture to the supervisors of the county, of all rights and franchises acquired by such corporation, in case such railway or railways shall not be completed within the* time and upon the conditions therein provided. Section 7.

It should be observed that up to this time no company was in existence to profit by the necessity which had been declared to exist for a steam railway, or which could claied the right to construct or maintain it. The next statutory step is in that direction, and the scheme was completed when, after notice, capital stock had been subscribed for and the subscribers met for organization and the election of directors. Sections 8 and 9.

The commissioners were then required to deliver to the directors a certificate, setting forth the articles of association, theretofore prepared by them, and the organization of the company, which when filed with an affidavit, showing the subscription and payment in of stock, and “ that it is intended in good faith to construct, maintain and operate the railway or railways in such articles of association mentioned,” constituted the persons who had subscribed them a corporation by the name specified therein, with the powers and privileges, and subject to the duties and restrictions of corporations (section 9); and a copy of such certificate and affidavit duly certified is made “presumptive evidence of the incorporation of such company, and of the facts therein stated.”

All these prescribed duties on the part of the commissioners and acts on the part of the directors were performed and a copy of their report, certificate and articles of association, and affidavit certified by the secretary of state, was in evidence. It showed that the originals were filed January 6, 1869, and thus it appeared that the company on that day acquired the franchise of being and acting as a corporation.

Its right to build and operate a railway in the streets of Brooklyn was, however, limited, not only by the constitution of the state, but as we have seen, by the statute of 1875, supra, and also by the very terms of the articles of association. The routes over which it might construct and operate its road were, as fixed by the commissioners, fifteen in number, and among others,* one on or through Fulton street. They directed that certain specified portions of the railway should be constructed and ready for operation at specified times, one within one year from the first of August, 1878, two within three years of the first of August, 1878, one within one year and six months from the first of August, 1878, but at the same time provided, that the time, if any, unavoidably consumed by the pendency of legal proceedings or by the delay or interference of the public authorities in refusing or neglecting to give their consent to the use of the streets and avenues as required in section 4 of chapter,606 of the Laws of 1875, or otherwise, should not be deemed a part of any period of time 'within which the construction and completion of the railway or railways is required to be made, but be added to each of the periods otherwise limited for such construction and completion. Arid as they were authorized to do by statute (Laws 1875, § 7, supra), the commissioners declared that, in case the several portions of such railway or railways shall not be completed each within the time and upon the conditions hereinbefore; and as to such portions provided for, the rights arid franchises acquired by such corporations shall be = released and forfeited to the supervisors of the' county of Kings.

The work through the route in question was not completed within the time mentioned, and so it is said that a forfeiture is incurred, and the company made incapable of going on. The right to do so under any circumstances was dependent upon the consent of a certain proportion of the abutting owners, or its equivalent, and the consent also of the local authorities.' It appears that the necessary consent of property owners had been obtained before the institution of these proceedings, and various action had been taken on the part of the municipal authorities. The sufficiency of that action is a material and difficult question in the case.

On the 30th of June, 1879, the common council of the city of Brookly by resolution declared “ that this common council do hereby consent to the construction and operation of an elevated railway or railways, over, along and through the following routes, fixed, determined and located by the rapid transit commissioners” (meaning the commissioners whose action has already been referred to) and describing the routes specified in the articles of association, and among others the one in question; following this resolution were two others, not important here. Then come these words: “ Provided, That the consent of the common council is hereby given upon the following conditions: noncompliance on the part of the company with all or any one of which shall render this consent void.”

So far as the respondent deems them material as bearing upon this controversy, they are: 1st, that the company shall enter into good and sufficient bond to the city in the sum of $200,000, that it will pay into its treasury, semi-annually for the benefit of the city, 2 per cent of its gross receipts; 2d, that it shall consent that the city assessors shall arbitrate all damages caused to property owners by the construction of the road; 3d that portions of the railway shall be completed at certain times specified, the latest of which is June 1, 1881.

On the part of the appellant the claim is made that the consent embodied in the first resolution became at once valid and effectual, and fixed the municipal authorities of Brooklyn so effectually that the company must be deemed to have thereby met and satisfied the requirement of the constitution and _statute, and the exaction of the articles of association, each of which requires the consent of the public authorities to the use of the streets and avenues for railway purposes. . In effect its contention is that all of the matter set forth in the resolution of June 30, 1879, save that consent was ultra vires the power of the common council; and therefore that the decision of the special term, in which a contrary conclusion was reached, should have been reversed.

On the other side it is insisted that a municipality whose consent is necessary to the construction of a railway in the public streets may impose such conditions as it thinks necesssary in granting its consent, and that the company to which it is given cannot enjoy the benefit while it rejects the conditions. This claim treats the transaction as a contract between parties having full power to treat, assumes that the commissioners had no other power than to determine the character of the railway structure, and that it was left to the local authorities not only to decide whether they would consent to its erection in their streets, but if so, upon what terms. This seems to me to be a very imperfect view of the scheme formulated by the act of 1875.

In pursuance of it, before the organization of any company was possible, it had been determined that a steam railway was necessary; and, acting under an exclusive power given to them, commissioners had fixed its route through the street in question, and determined the manner and time of its construction. All this was done because of the ascertained public necessity for such a railway; and after that it remained to find a company willing to. build the road in the manner and at the time prescribed, and for the common council of the city by its consent, to enable them to do so.- But neither the company, when organized, nor the common council, could add to or take away from the terms or the conditions before provided and imposed by the commissioners. The company, by its formation, accepted them; the common council need not consent, but if it did, the company, so far as the city was concerned, could proceed with the undertaking according to the charter, which the state, through its agents, the commissioners, had prepared for them.

I find nothing in the cases or the statutes cited by the respondent which calls for a different interpretation of the act of 1875; and to hold otherwise would enable the common council to put itself in the place of the commissioners, and assume a function which had been delegated by the legislature to the commissioners as independent public officers. It is, I think, a sufficient answer to say that such power of substitution is not within the language nor the intent of the statute; and to interpolate. it would greatly weaken, if it did not altogether destroy, the utility and force of its provisions which have relation to the public necessity for means of transportation “for passengers, mails or freight.”

The franchises conferred upon the city by the legislature were public property, and remained subject to its control. It follows that the power contingently conferred by the legislature to construct the railway became absolute, for the conditions imposed upon its exercise had both been performed. The abutting owners had consented, and so had the municipal authorities. To that extent the object, which the legislature had declared to be one of public necessity, was accomplished.

Subsequent legislation is not without importance as throwing light upon this question. The act of 1884, chapter 252, dispenses with the freeholders’s petition, requires no determination as to the necessity, for rapid transit, but, on the other hand, provides that the local authorities, before .acting upon an application for their consent, shall give public notice thereof, and of the time and place where it will be considered, and when granted, it shall be upon the express condition that the conditions of the statute shall be complied with, or the local authorities, at their option may provide for the sale of the franchise at public auction, subject to all the provisions of the act as to construction, operation, etc., of the railway.

It then declares that every corporation formed under the provisions of that act (1884), in cities having 250,000 inhabitants or more, shall pay annually into the city treasury a percentage, at first five per cent, and afterward of three per cent of its gross receipts, and that in other cities or villages the local authorities shall have the right to require, as a condition to their consent to the construction and operation of the road under that act, the payment annually of such percentage of gross receipts, not exceeding three per cent, into their treasury as they may deem proper. A failure on the part of the company to make payment of the sum prescribed involves a penalty of five per cent additional each month on such percentage until it is paid. Sec. 8.

These provisions would have been entirely unnecessary if under an act, that of 1875, which contains none of them, the local authorities could, at their pleasure, impose payment of such sum as they thought proper as a condition of giving consent. But if it be otherwise, if the common council can qualify their consent by such reasonable conditions as they think necessary for the protection of the interests and well being of the city (and we need not and do not decide that they cannot) and that such condition as the one I have considered is of that character, it is nevertheless a condition which could not be performed until after the road was constructed and in running order; and it is not required that the bond for its payment should be given before the company had acquired the right of way.

But however it may be with this condition, the others are neither reasonable nor lawful. They relate to matters over, which the legislature and the commissioners have entire control. The statute determines how the damages of the land owner shall be ascertained, and confers upon the commissioners sole power and jurisdiction to determine when the various portions of the road shall be completed. Their action is as the action of the legislature, and can neither be superseded nor in any way affected by that of any other body. But here the resolution of the common council is wholly repugnant to the statute in one case, and to the condition imposed by the commissioners in the other. The statute requires the appointment by the supreme court of commissioners of appraisal, defines the mode of procedure,' and gives effect to their decision, both as respects the company and the land owner.' The common council requires the company to consent, at the option of the land owner, to have his damages ascertained by the assessors for the city, and to abide by their decision as to damage or injury, including depreciation in value to any property abutting upon and along the line of the road.

These two schemes are inconsistent and cannot stand together. The resolution of the common council, if effectual, nullifies the statute. As to the other condition, the statute (§ 6) requires the commissioners, within ninety days after their organization as a board, to fix and determine the time within which “the railway or railways, or portions of the same, shall be constructed and ready for operation,” and this was done, as we have seen, before the plan was submitted to the public as one to be carried out by such company as might be formed.

They prescribed for one portion the 1st of August, 1879, subject to an enlargement by reason of certain named contingencies hereinafter referred to. The common council for the same portion fixed the arbitrary time of the 1st of June, 1879. For another portion, the commissioners, subject to the same contingencies, fixed August 1, 1881. The common council named December 1, 1880, with no allowance in either case for the delays allowed for by the commissioners.

Again, it may be observed of these conditions imposed by the local authorities, or accompanying their consent, as was said of the other and much more obvious terms, that they are in no sense conditions precedent, to be performed before the consent takes effect, and so become a component part of the scheme, but are conditions subsequent, the nonperformance of which in the future shall, in the language of the resolution, “render the consent void.” The power to recall a consent is not given by the act of 1875; neither can it by the operation of any cause set on foot by the local authorities, when once given, be annulled.

It is claimed, however, by the respondents that the time fixed in the articles of association for the completion of that portion of the railway which includes Fulton street expired before the commencement of these proceedings, and that, therefore, the petitioner’s corporate existence has been terminated. This raises a very different question. As the legislature is the final judge as to what the public interest required to be done, so it could declare the consequences of a default. It could itself fix the time for completing the railway, or leave that matter to be determined by the commissioners. Both events were provided for in the articles of association, and it is necessarily conceded by the appellant that the date specifically named for the completion of the work had passed before these proceedings were commenced (it expired August 1, 1881), but the contention is that this period of limitation was extended by the proviso above set out, which suspends the running of time during the pendency of legal proceedings, or delays or interference of the public authorities, “or otherwise.”

The charter provision must have a reasonable construction; and it is plain that the time during which, and without fault on its part, the company had no legal ability to commence or carry on the work should not be deemed to form any part of the allotted period. It appears, by article 1 of the articles of association, that the resolution of the commissioners limiting the time for the completion of the work in question was adopted on the 30th of June, 1818, and fixed the time as August 1, 1819, or thirteen months from the adoption of the resolution. But the work of the commissioners was not completed until the articles were filed; nor was there until that event any company with corporate existence to carry out their direction.

It may properly be held, therefore, that the time intervening between the date of the resolution, June 30, 1818, and the incorporation of the company, should not be counted against it. For that delay the company was not chargeable; and the intention of the resolution in consideration of the object in view, and the language even of the statute (§ 6, supra), which gave authority to the commissioners in this respect, must be deemed to give a certain length of time after the company received its charter, in which that object should be accomplished. It had no power or being even until January 6,1819. Immediately after that date it made efforts to obtain consent of the property owners, and failing in that, applied to the supreme court under section 4 of the Act of 1815 {supra), for the appointment of commissioners, whose determination, if in favor of the construction of the railway, after confirmation by the supreme court, “should,” the statute says, “be taken in lieu of the consent of the property owners.” The report of the commissioners was made on the 26th of April, 1819.

It was favorable to the road, and on the same day an application was made for its confirmation. It was opposed, and remained undecided until February 10, 1880, when confirmation was refused. In different courts the controversy between the company and its opposers continued until September, 1880, when it ended in a decision adverse to the company. Since that time the affidavits show continuous efforts on the part of the company, among other things, to obtain the necessary consents of property owners, which was accomplished December 2, 1885. It appears, therefore, that without fault on the part of the company, the intervening time was unavoidably consumed in part by legal proceedings, but also by the impossibility of obtaining the consent of the property owners, or its equivalent; and that time may, therefore, be added to the specified period named in the articles of association for the completion of so much .of the road as is now in question. This effect should be given to the word “otherwise,” as it stands in the article already quoted (art. 7, § 6).

Whether we look at the general scheme of the act which has regard to an undertaking promoted by the law-making power of the state because of an ascertained public necessity for its completion, or at the rights of the parties who accepted the proposition of the commissioners appointed to carry out the scheme, as those rights are regulated by the statute, we are required to give effect to this general clause by which the scheme is regulated. In doing this we must take into account the conditions upon which alone the work could proceed: First, the consent of the citizens, property owners; and, second, the consent of the local authorities.

Until the consent of each was obtained nothing could be done by way of construction; and the time necessarily and in good faith employed in obtaining either may properly be deemed to have been unavoidably consumed. The commissioners anticipated that some time would be so consumed, and enumerated certain causes calculated to have that effect, as the pendency of legal proceedings, the delay or interference of the public authorities; but to those words they add “or otherwise,” apparently having relation to the danger guarded against in the untimely expiration of the period limited. The word might indeed be applied to some act or interference on the part of ' the public authorities other than those mentioned, but it is not necessarily so limited; and as the manifest intention of the provisions of the sentence was to secure to the compai y the full time before specified for the completion of the work, it should be deemed to relate to both of these conditions and include anytime “ unavoidably consumed ” in án effort to obtain either, and so make it legally possible to commence the work which was to be completed at a given period, after the time began to run. This construction would not excuse a delay not involuntary, nor an incapacity to proceed caused by the company itself, and would satisfy the rule which requires a court to be “ guided by the intent of the legislature * * * * taken according to the necessity of the matter and to that which is consonant to reason and good discretion” (Stradling v. Morgan, Plown 204), and which makes it necessary to construe a statute in accordance with the circumstances to which the act was intended to apply.

That the commissioners did not exceed their authority by providing for these contingencies, and that notwithstanding the qualifications, the time within which the railways should be constructed was fixed and determined by them as required by statute, was in effect held by us in the Matter of the Cable Railway, decided December 17, 1886 (ante, 56), and requires no further discussion.

The appellant claims also that by various acts of the legislature the time for the construction of the railway has been extended (chapter 350, Laws 1879; chapter 405, Laws 1832); but the views already expressed make it unnecessary to consider the argument by which it is enforced. If correct, they answer also the position of the respondents, that the franchises of the corporation have been lost. That contention has no other basis than the assumption that the time given the company to construct its road expired before the present proceedings were commenced.

I have endeavored to show that upon the papers before us the fact is otherwise. But if mistaken in this, it would not follow that the appeal should for that reason fail. Section 7 of the act of 1875 {supra) provides that the commissioners shall, in the articles of association, “ provide for the release and forfeiture to the supervisors of the county, of all rights and franchises acquired by such corporation, in case such railway or railways shall not be completed within the time and upon the conditions therein provided.”

This, as we have seen, was done in the very language of the act; and, assuming with the respondent, that the default existed, we are to inquire whether the property right or franchise then in the company was by that circumstance and without further act done by anyone, or judgment of any court, transferred to the supervisors of Kings county, or at least diverted from the company. It is certainly well settled that a non-performance of the conditions of an act of incorporation will forfeit the grant, even at common law; and like effect is given to such omission by the statute under which the petitioner came into existence; but I am not aware of any case holding that such default does of itself work a forfeiture, or that it can take effect except upon some proceeding where the question is brought directly before the court, unless the statute otherwise provides.

The principal cases relied upon by the respondent were within this exception. Re Brooklyn, etc., R. R. Co., 72 N. Y., 245; 75 id., 335. The company then before the court was organized under an act which declared that upon omission to do the thing in question, “ its corporate existence and powers shall cease.”

And in Brooklyn Steam Transit Co. v. Brooklyn (78 N. Y., 524), the charter then before the court provided that upon such omission, “this act and all the powers, rights and franchises herein and hereby granted shall be deemed forfeited and terminated.” In the last case the other two were reviewed; but the same principle was said to apply to. each.

The general rule to which I have adverted was recognized; but the court held that the legislature had the power to provide that a corporation might lose its corporate existence without the intervention of the courts; and whether it had intended so to provide must depend upon the construction of the language used. In those cases the statute defined a single act and used unmistakable language. It was held that it executed itself. In the case before us, whether the omission has occurred depends upon a variety of circumstances, any one or all of which must be determined as matters of fact before a forfeiture could be found. It would be easy to say that the road was not completed at the end of thirteem months, or other fixed period, but whether in the meantime there had been delays from causes unavoidable, leading to loss of time, and to what extent, could be answered only upon an issue and after inquiry. Moreover, if there is a forfeiture, it is to the supervisors.

The company remains a corporation, and the property right or franchise of building this particular portion of railway, or receiving whatever the company has lost, goes to the supervisors. They have not claimed it, nor does it appear that they require or will accept it. If there is a cause of forfeiture, then there is no reason apparent why they may not waive it. But this point need not be decided. The legislature has not annulled or dissolved the incorporation of the petitioner, as they might have done (section 34, act of 1875); nor has judgment of forfeiture been rendered in any suit. We think ■ nothing has yet passed from the company, and that it is entitled, so far as any question before us is concerned, to proceed with the work for which it is organized.

Such was our conclusion upon all the points presented upon the argument, or embodied in the brief then submitmitted; but afterwards the case of The New York Cable Railroad Company was decided, and a new point suggested by it has been presented in behalf of the respondent as a conclusive answer to this appeal. It is argued that the organization of the company is not complete, because the commissioners, having located fifteen different routes, fixed the time within which five only of such routes should be completed, and omitted to determine any period within which the remaining ten should be finished. As a matter of fact the premises are truly stated.

Is then the omission of a prescribed time as to the completion of some routes fatal to the whole scheme? This question did not arise in the Cable Co. Case. The articles of organization of that company provided for the completion of the routes named; but the time within which it should be done was to begin to run only when the necessary consents should be obtained; and as no time was limited for obtaining them, it was contended by the opponents of the company that there was no actual limitation of the time within which the roads were to be constructed; but the court held that the commissioners substantially complied in this respect with the statute, and that the objection to the organization of the company, in the respect insisted upon, was not well taken. The effect of prescribing the time for the completion of some routes, ana altogether omitting to do so as to others, was not discussed. If it be conceded that as to those latter routes the company had no power or right of construction, then we are to see whether the authority given in legal form as to certain routes is avoided because the same charter includes other routes not so authorized. The general rule is that when the illegal part of a contract cannot be separated from the legal, the whole is void; but when they can be separated, the bad part may be rejected and the good upheld..

This is the case here. The routes to which no time has been affixed may be conceded not to have been legally designated for any railway, and the streets or avenues included in them to be open to occupation by another company. Section 4, act of 1875, supra.

As to those then the appellant cannot be said to have acquired any right of franchise; and the terms and intent of section 7, which requires the articles to provide for the release and forfeiture to the supervisors of the county, in case the railway or railways shall not be completed within the time therein provided, can be fully satisfied. The letter and intent of the act has been complied with, and upon default of the company, all its rights and franchises are to be released and forfeited to the supervisors.

In the Cable Co. Case it was held that under a necessary construction of the charter, that company was required to suffer no penalty, except the forfeitures of “the franchise of constructing the routes which they elected to abandon,” and was therefore not in compliance with the statute. In that case moreover the company was left at liberty to choose which of the twenty-nine routes covered by the articles it would complete, and for an indefinite number of years hold the privilege granted by franchise, to the exclusion of other organizations, neither building necessary roads themselves, nor permitting others to construct them. Such an option was to the public prejudice.

A different conclusion is required by the terms of the articles before us. The company is not at liberty to select their routes, and the omission in the articles of a fixed time for the completion of the railway over certain routes is not chargeable to the corporation, but to the commissioners, who as to these routes may be said to have failed, to act. The effort to designate those routes was futile, and the evil pointed out in the Cable Case could not arise in this.

In conclusion, we are of opinion that the petitioner, upon filing the certificate and articles as required by statute (Laws 1815, supra, § 9), became, and that it now is a corporation. So far, therefore, as any question has been raised by the respondents, the appeal should prevail. '

To that end, the orders of the special and general terms should be reversed, and the case remitted to the supreme court for the appointment of commissioners.

All concur, except Earl and Finch, JJ., who dissent.


source: Caselaw Access Project

author: Rapallo, J.

license: Public Domain

text:
    William C. Conner and ano., Ex’rs, etc., App’lts, v. Martin J. Keese and others, Resp’ts.

      (Court of Appeals,

      Filed April 19, 1887.)

    Sheriff—Action by on bond for false return by deputy—Evidence —Must prove return by deputy, unless admitted.
    Plaintiff, a sheriff, sued his deputy and his sureties for a false return upon an execution. Keese, the deputy, and his bondsman, Qatnpbell, admitted by their answers that the return was made by Keese, and endeavored to justify that they acted under the direction of the counsel for the sheriff, but the other bondsman, Johnstone, put in issue all the facts alleged in the complaint. Plaintiffs omitted to prove that the return had . been made by the deputy, and plaintiffs were non-suited. Held, that as to Johnstone the non-suit was right, but that as to the others it was incorrect, as that fact was admitted by their pleadings, and was not in issue.
    Appeal from supreme court, general term, first department.

      Henry Thompson, for app’lts; George W. Stephens, for resp’ts.

       39 Hun, 658, mem.

   Rapallo, J.

This action was brought by William C. Conner, sheriff of the county of New York, in his lifetime, against one of his deputies, and the sureties of such deputy on his official bond given to the sheriff. The sheriff having died, the action has been continued in the name of his executors. The condition of the bond was such as, among other things, to render the sureties of the deputy liable for any damage the sheriff should sustain by reason of any false return which the deputy might make to any process delivered to him for execution. The breach alleged was, in substance, that an execution in an action of replevin for the return of the replevied chattels to the defendant was issued to the sheriff, and by him delivered to his deputy, Keese, for enforcement, and that the deputy made a false return to said execution that the chattels could not be found, by reason of which false return judgment had been recovered against the sheriff, which he had paid, with costs, etc. On the trial the plaintiffs proved the issuing of the execution. Its delivery to the deputy, Keese, was admitted. The return that the chattels could not be found, etc., signed with the name of the sheriff, and the recovery of judgment against the sheriff for the falsity of this return, were also proved. For the purpose of binding the deputy and his sureties by this judgment, it was shown that he was a witness on the trial of the action against the sheriff for the false return, and also that, by the express terms of the bond, they waived notice of any action brought against the sheriff for any misfeasance or nonfeasance on the part of the deputy, and covenanted that a recovery against the sheriff in any such action should be conclusive evidence of then liability for the full amount recovered. There remained but one link to be supplied in the chain of facts necessary to establish the liability of the defendants. That was that the return, for the falsity of which the sheriff had been compelled to pay damages and costs, had been made by the deputy, or on his report to the sheriff or under-sheriff. That essential fact was not established by the evidence adduced on the trial of this action, and on that ground the plaintiffs were nonsuited.

As to the defendant Johnstone, the nonsuit was clearly right; for, by his answer, he put in issue all the facts alleged in the complaint bearing upon that question. The opinions of the majority of the general term are clearly right, so far as that defendant is concerned. But as to the defendants Campbell and Keese, the case is different. By their answers they expressly admitted that the return was made by the deputy Keese. The complaint alleges that Keese made the return, and that it was false, by reason whereof the sheriff was made liable. The answer of defendant Campbell, after admitting the formal allegations of the complaint, setting forth that the plaintiff was sheriff, that he appointed Keese, one of his deputies, the execution of the bond sued upon, and the waiver of notice therein contained, denied the other allegations of the complaint only so far as not thereafter specifically admitted, qualified or denied, and then proceeded to aver that the deputy Keese was willing and desirous faithfully to execute the process confided to him for execution, but that a third party claimed title to the property, and was in possession thereof, and that he made the return for which the sheriff was sued, under" instructions from the under-sheriff to consult the counsel of the sheriff, and to follow their advice in respect to levying upon the property; that such counsel having advised him not to execute the writ, but to make return that he could not find the property, he did make such return, contrary to his own judgment, but under the express direction of the sheriff through his, counsel. The answer of the defendant Keese was to the same effect, though less particular and explicit in detail.

Of course, if the matters thus set up in defense had been proved, they would have afforded a complete justification for the action of the deputy, and would have absolved bim and his sureties from any charge of misconduct which could have rendered them hable upon the bond. But no such proof was given or offered, and the defendants on the trial of this action rested their defense solely and singly upon the point that it had not been proved that the deputy made the return which was found to have been false, and on that sole ground the general term sustained the nonsuit. We do not think that, as to the defendants Campbell and Keese, that fact was in issue, and that the counsel for the appellants is right in his contention that it was admitted by the pleadings. ■ The answers of those defendants were in confession and avoidance, as would have been said of a like pleading under the common law system, and should be held now, so far as the substance is concerned. They admitted that the deputy made the return which rendered the sheriff hable, but set up as a justification that they did so pursuant to the direction of the sheriff himself, through his authorized agents. The affirmative of that issue was with them, and to sustain their defense it was necessary that they should prove their allegation. If they failed to . do so, the averment of the complaint stood admitted. The case is devoid of any evidence throwing light upon the merits of the case, and we must decide it on the record.

The judgment should be affirmed, with costs as to the defendant Johnstone, and reversed as to the defendants , Campbell and Keese, and a new trial ordered as to them, with costs to abide the event.

All concur.


author: Andrews, J.

text:
    Elizabeth R. Cogswell, Resp’t, v. New York, New Haven and Hartford Railroad Company, Appl’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    .1. Nuisance—Action fob abatement op, and damages.
    The legal remedy by writ of nuisance, for the recovery of damages, and the abatement of a private nuisance, allowed at common law, was retained by 2 R. S., § 232, and though the proceeding by writ of nuisance has been abolished, the same relief may be now had in an ordinary civil action, under Code, § 454 (Code Civ. Pro., § 1662).
    2. Same—Action fob legal and equitable belief—Right to juey.
    Where a plaintiff brings an action for both legal and equitable relief in respect to the same cause of action, the case presented is not one of right triable by jury under the constitution; the plaintiff by such election submits to have the issues tried by the court, or by the court with the aid of a jury, as the court in its discretion may determine, according to the practice in equity cases.
    3. Same—Code Crv. Pbo., §§ 968, 1660.
    An equitable action to restrain the continuance of a nuisance, or an action for a nuisance in which equitable relief is also demanded, is not an action for a nuisance within section 968, Code Civil Procedure.
    Appeal from general term superior court of the city of New York.

      Ii. I~I. Anderson, for app’lt; Lewis Johnston, for resp’t.

       See 3 N. Y. State Rep., 56, for statement of case and opinion on previous appeal.

   Andrews, J.

The complaint demands both legal and equitable relief. It prays judgment for damages and an abatement of the nuisance, and also for an injunction restraining the defendant from continuing the nuisance, and from permitting its lands to be used for the purpose of carrying on any operation thereon which shall injure the plaintiff in the enjoyment of her property. The remedy for damages and for the abatement of a private nuisance could at common law be obtained in a legal action, technically known as an assize of nuisance. It was a part of the judgment that the nuisance be abated. 3 Bl. Comm. 220; Waggoner v. Jermaine, 3 Denio 306. The legal remedy by writ of nuisance for the recovery of damages, and an abatement of the nuisance, was retained by the Eevised Statutes, (2 Rev. St. 332;) and, though the proceeding by writ of nuisance has been abolished, the same relief may be now had in an ordinary civil action under the Code. Code Pro. § 454; Code Civil Pro. § 1662.

It was held in Hudson v. Caryl (44 N. Y., 554), that as, by the common law, an action for damages and for the abatement of a nuisance was triable by jury, the defendant could not be deprived of the right to a jury trial upon these issues, although the plaintiff in his complaint also demanded equitable relief. In the present case the plaintiff is the party insisting upon the right to a jury trial, notwithstanding the fact that she framed her action asking, not simply the relief which could be obtained by a writ of nuisance at common law, but also relief by injunction, which a court of law was not competent to grant. The constitution (section 2, art. 1) secures to a party the right to a jury trial in all cases where before its adoption this mode of trial was used.

This is not a case which as a whole, and in both aspects, was triable by jury at the adoption of the constitution, nor is it one where, under the present system, the plaintiff is compelled tó unite her claims for both equitable and legal relief in the same action. Eights may be waived, or a party may by his own act preclude himself from asserting them. We think it is a reasonable rule, and one in consonance with the authorities, that, where a plaintiff brings an action for both legal and equitable relief in respect to the same cause of action, the case presented is not one of right triable by jury under the constitution, and that the plaintiff by such election submits to have the issues tried by the court, or- by the court with the aid of a jury, as the court in its discretion may determine, according to the practice in equity cases. See Davison v. Associates of Ferry Co., 71 Y. Y., 333; New York and N.H. R. Co. v. Schuyler, 34 id., 46; Baird v. The Mayor, etc., 74 id., 382.

This is not, we think, an action for a nuisance within section 968 of the Code of Civil Procedure. The action of nuisance is mentioned in the section, together with other common law actions, all of which must, the section declares, be tried by jury, unless a jury is waived or a reference is directed. Beading the section in connection with section 1660, it is clear, we think, that an equitable action to restrain the continuance of a nuisance, or an action for a nuisance in which equitable relief is also demanded, is not an action for nuisance within section 968.

This leads to a reversal of the orders of the special and general terms, but, as the courts below decided the motion on the question of power solely, the case should be remitted to the special term for the exercise of its discretion.

All concur.


author: Peokham, J.

text:
    Charles F. Holly, Resp’t, v. Metropolitan Life Insurance Co., Appl’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Insurance (life)—Forfeiture—Conditional acceptance of premium: NOTES BY COMPANY.
    On the 16th of February, 1877, a semi-annual payment of a premium became due to defendant from plaintiff, which he was obliged to pay to keep his policy alive, or he could have made default in payment and demanded his paid up policy for the proper amount. He had thirty days from that date in which to pay the premium due, or to make his demand for a paid up policy. He waited until March 14, and then went to defendant’s office to ask them to take his note for the premium due. The company took it, and renewed it, giving a receipt, providing that “all claims to further insurance and all benefits * * * shall become immediately void and be forfeited to said company, if this note is not paid at maturity. ” Held, that by failing to pay the note the forfeiture provided for therein immediately attached, and the plaintiff thereby lost the right which he would otherwise have had to further insurance, according to the tenor of his policy.

      Wm. H. Arnoux, for app’lt; James M. Fish, for resp’t.
   Peokham, J.

The defendant insured the life of the plaintiff, August 16, 1870, in the sum of $5,000, on payment of a premium of $247, and a premium of the same amount thereafter, payable on the sixteenth of August in each year. The policy was issued for the sole benefit of Charles F. Holly, Jr., and contained a clause of forfeiture if the premium were not paid at the time mentioned. It also contained a promise that if, after three annual payments of premiums were made, the assured should fail to make payment of any further premium when due, then, upon a surrender of the policy within thirty days after such unpaid premium should be due, the company would, in exchange, issue a paid-up policy for the amount of even dollars of premium received by it on the policy. The plaintiff had thirty days after a premium became due in which to pay it. By subsequent agreement, the payment of the premium was changed from annual to semi-annual periods, and as thus changed the premiums had been paid to February 16, 1877. The plaintiff did not pay the premium which became due on the date last named, and had not paid it on the fourteenth of March following. On that day he called at the office of the company in Hew York, and being, as he says, short of money, he asked for an extension of time, which resulted finally in his giving a note for the payment of the premium which had fallen due on the sixteenth of the previous February, and the note was payable in three months from its date (March fourteenth), and contained this condition: “ This note is given in part payment of the annual premium on policy numbered as per margin, with the understanding that all claims to further insurance, and all benefits whatever which full payment in cash of said premium would have secured, shall become immediately void and be forfeited to said company if this note is not paid at maturity.” Contemporaneously with this note, and as part of one and the same transaction, the defendant gave to the plaintiff the following receipt:

“Metropolitan Life Insurance Company. '/
319 Broadway, New York, March 14, 1887. j
“Note 3 mo. due June 14, 1877. Chas. F. Holly.
“Received from the owner of policy No. 9,609, $128 45-100, which continues said policy in force until the 16th day of August, 1877, at noon, in accordance with its terms and conditions. Not binding upon the company until the premium is paid, and this receipt signed by
“ Jno. R. Hegeman,
“(Prem. Receipt) Vice-President.”

When this note became due, the plaintiff, not desiring to pay it, asked for its renewal, and the result was that the plaintiff signed another note, containing a condition precisely similar to that set forth in the first one, and payable August 14, 1877, and the defendant gave up the first note to the plaintiff. When the second note became due, the plaintiff failed to pay it, and on the twenty-fifth or twenty-sixth of August thereafter called at the office of the company and offered to pay the note, which payment was refused, and the claim made that the policy was forfeited by the non-payment of the note when due. The plaintiff subsequently commenced this action to compel defendant to comply with its agreement, and give a paid-up policy for the amount of premiums paid by him (over $1,700) up to the time when he failed to pay the premium due August 16,1877.

The plaintiff has succeeded thus far. In the argument of the case here for the plaintiff much stress was laid upon the.rules governing the court in construing contracts between insurance companies and policy-holders, especially when any forfeiture is to be insisted upon by the former. A strict construction, it is said, must be insisted upon, and the contract resulting in a forfeiture cannot be extended beyond the strict and literal meaning of the words used. This is undoubtedly true. In cases where the meaning is not entirely plain, and where it is capable of two constructions, one involving a forfeiture, and the other being fair and reasonable, and supporting the obligation of the policy against the insurer, that construction is preferred by the courts which does not involve the forfeiture, not only because it is not so harsh, but also because, if the language be doubtful, it is that employed by the insurer, and should be taken most strongly against him. As is said by Finch, J., in delivering the opinion of this court: “If a construction so literal and severe is intended by the insurer, he should at least say so by plain and appropriate language, and not' ask the court to supply it by intendment.” See Burleigh v. Fire Ins. Co., 90 N. Y., 220. This was said in relation to the construction to be given the words “detached at least one hundred feet ” in a policy of insurance upon a lot of goods in a frame storehouse thus situated. The court held that a small office standing seventy-five feet away, which the trial court found was not an exposure, and did not affect the risk, did not constitute a breach of the warranty. But all the cases which use language of this nature as to the construction to be given words in a policy are cases where the words used leave the meaning in doubt. Where there is no doubt as to the meaning of the language used, such meaning must prevail with courts, for the simple reason that the parties have so contracted; and, in the absence of fraud or mistake, both must live up to their contracts, or take the consequences.

We entertain no doubt as to the- meaning of this contract. On the 16th of February, 1877, a semi-annual payment of a premium became due from the plaintiff, which he was obliged to pay in order to keep his policy alive, or he could have made default in payment, and demanded his paid-up policy for the proper amount. He had thirty days from the 16th of February in which to pay the premium due that day, ór to make his demand for a paid-up policy. He waited until the 14th of March before doing anything, and he went to the office of the defendant in New York to ask a favor, i. e., the postponement of the cash payment for a short time. This favor the company granted, but only upon one condition, which was put in writing and assented to and signed by the plaintiff. He thereby consented and agreed that, if he failed to pay this note at maturity, he should thereby, among other things, immediately forfeit all claims to further insurance.

The written receipt is to be read in connection with this note, and' the whole transaction then appears to be and it was simply this: The company acknowledged the receipt of the February premium, and continued the policy in force to August 16th, provided the note, which was given instead of cash in payment of the premium, was paid at maturity. If not, then the company had the right to immediately forfeit the policy and all claims to further insurance, which right of forfeiture includes the very claim in suit. When the first note became due, it was renewed by the execution of another, upon the same terms and conditions, due August 14th, and the first note was then surrendered. By failing to pay this last note when due, the forfeiture provided for therein immediately attached, and the plaintiff thereby lost the right which he would otherwise have had to further insurance according to the tenor of his policy, but which he had agreed to give up on condition of obtaining an extension of the time in which to pay his premium and by failing to pay it at the end of that time.

It is argued that taking the first note, had the effect of designating anew period from which the default in payment of the premium should afterwards be measured; and that as the premium only became due, finder the final arrangement, on the 16th of August, 1877, the plaintiff, by the policy, had the right to a paid-up policy within thirty days after that time. This reasoning wholly ignores the. condition contained in the note, and renders the language thereof meaningless. The note not only extended the time of payment of the premium, but it distinctly stated, not that failure to pay at maturity should be treated as a default, which perhaps might give the. thirty days thereafter in which to surrender the policy and demand a paid-up one, but the language used was entirely explicit and free from doubt, making an unambiguous agreement to absolutely and immediately forfeit all right to further insurance if the note were not paid at maturity. To that extent it was an alteration of the terms of the policy giving thirty days after a default in which to surrender and make a demand, and instead thereof it plainly provided for a total and immediate forfeiture if at maturity the note were not paid. If language as plain and unambiguous as this is not only to be twisted out of its natural meaning, but is to be wholly ignored by courts of justice, it will be useless in the future for companies to make any effort to bind policyholders to perform their contracts. The use of language is to express ideas, and writing is resorted to in order to furnish conclusive proof of what language was used. Being certain of the language used, and the case being free from fraud or mistake, if such language is plain ana susceptible of but one meaning, that meaning, even in cases of contracts regarding life insurance, must control, though a forfeiture should'be the result.

Punctuality in the payment of premiums in the case of a life insurance policy is of the very essence of the contract; and, when payment is not made at the time, the company has the right to forfeit if such were the contract. Attorney-General v. North America Life Insurance Co., 82 N. Y., 172-189; People v. Knickerbocker Life Insurance Co., 103 N. Y., 480; Insurance Co. v. Statham, 93 U. S., 24. Here the plaintiff failed to pay his premium on the sixteenth of February, and was accorded the favor of a postponement until the maturity of the first note in June, and then, on his failure, the company legally exercised its right of forfeiture. No stress is laid, and upon the evidence none can be laid, upon any alleged promise to renew or extend the payment of the second note. By plaintiff’s own evidence there was no such promise.

The judgment must be reversed, and a new trial granted; costs to abide event.

All concur.


text:
    The People ex rel. George W. Ostrander, Adm’r, Resp’ts, v. Alfred C. Chapin, as Comptroller, etc., App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Taxation—Jurisdiction of comptroller to cancel sale — Mandamus.
    The comptroller can be required by mandamus to hear and determine an application made to him by a purchaser at a state tax sale of real estate to cancel the sale and refund the purchase money, where the purchaser alleges that the tax was invalid, and presents proofs in support of his allegation.
    3. Same—Laws 1855, chap. 437, § 83.
    The power of the comptroller is not limited to cases where the invalidity of the sale appears upon the face of the proceedings, but he has power, under Laws 1855, chapter 437, to cancel the sale where the invalidity has to be established by extrinsic evidence, whether a deed has been executed or not.
    3. Same.
    The comptroller has legal authority to receive and act upon affidavits produced to him and the testimony of witnesses, for the purpose of deciding the question of the validity of tax sales as between the state and the purchaser, and may administer oaths to witnesses, and violation of such oaths is perjury, under Penal Code, section 96.
    Appeal from an order of the supreme court, general term, third department, affirming order of special term, Peckham, J., granting a peremptory writ of mandamus compelling the comptroller to hear and determine an application to set aside a tax sale.

      Dennis O’Brien, Att’y-Gen., for app’lt; Arthur L. Andrews, for resp’ts.
   Rapallo, J.

The question presented by this appeal is whether the comptroller can be required by mandamus to hear and determine an application made to him by a purchaser at a state tax sale of real estate to cancel the sale, and refund the purchase-money, where the purchaser alleges that the tax was invalid, and presents proofs in support of his allegations. Chapter 427 of the Laws of 1855, section 83, provides as follows: £l Whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever invalid or ineffectual to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the comptroller shall cancel the sale, and forthwith cause the purchase-money and interest thereon to be refunded, out of the state treasury, to the purchaser, his representatives or assigns.” Section 85 provides that, if the discovery that the sale was invalid shall not be made until after the conveyance, it shall be the duty of the comptroller on receiving evidence thereof, to cancel and refund, etc., and to re-charge the county from which the tax was returned with the amount refunded.

The tax sale in this case was made by the comptroller in 1871, for the unpaid taxes of the years 1861 to 1865, inclusive, upon certain lands in the town of Wells, in Hamilton county. The purchaser paid the purchase-money, and received the usual certificates of sale, and afterwards assigned them to the relators. No deed appears to have been given by the comptroller conveying the land sold. The relators claim that they have found that the board of supervisors of the county of Hamilton did not, in any of the years, for the taxes of which the lands were sold, estimate and set down in the assessment-rolls the sums to be paid as a tax upon the lands, as required by 1 Revised Statutes, 395, section 33, and this omission, the relators allege, rendered the sale invalid, and ineffectual to give title to the lands sold. On or about the.8th of December, 1885, they made application, by petition in writing, to - the comptroller for a cancellation of the sales, and the refunding of the purchase-money. Their petition set forth the sale, and the issuing of the certificates, and alleged that the supervisors of the several towns of Hamilton county and town of Wells failed to extend the tax on the several assessment-rolls as a board of supervisors, but delegated to each individual member to do the same, and did not subsequently ratify said extension. The petition was accompanied with the certificates of the sales, and the assignments thereof. In August, 1886, the relators, through their counsel, requested the comptroller to take action on their application, and produced to him, the affidavit of the clerk of the board of supervisors of Hamilton county, who wras in office during the years 1861 to 1865, both inclusive, and also the affidavit of one of the members of said board, substantiating the allegations of their petition, and at the same time offered to produce satisfactory evidence of the defect alleged from witnesses who knew the facts. On the 20th of August, 1886, the comptroller sent to the attorneys for the relators the following communication refusing their request.

“State of New York, Comptroller’s Office, )
Albany, August 20, 1886. )
“In the Matter of the Bequest to Grant Application 223 on the Production of Satisfactory Proof of Irregularities not Patent on the Face of the Becords.
“ Stedman, Thompson & Andrews, Albany, N. Y.—Gentlemen: While I do not question the force of the authorities cited by the applicant in making this special request, and while I have no reason to doubt his ability to produce before me evidence of the kind and force that would be required upon a trial in court, it nevertheless seems to me that his request is practically that I should assume judicial powers and functions not conferred upon me. The so-called common-law evidence which the applicant offers to produce before me would not, after all. be evidence in any technical sense. It would be such superficially, but it would not and could not be invested with the attributes, or expose the witness giving it to the penalties accompanying the giving of true or false testimony under legal oath before a duly-qualified tribunal. The applicants’ request is therefore denied.
“ Respectfully yours,
“ALFRED 0. CHAPIN,
Comptroller

The relators thereupon, on affidavits stating the foregoing facts, made a motion in the supreme court at special term for a writ of mandamus commanding the comptroller to proceed to hear, act upon, and determine the application made by the relators, and to receive such evidence, to be offered by the applicants, as would be competent in a court of justice, or such proof as is authorized by statute. In opposition to the motion, the comptroller presented his own affidavit, setting forth his letter of August 20th, and alleging that, in his belief, the statutes of this state did not clothe him with the power to examine, in a judicial capacity, evidence aliunde the record, for the reasons set forth in said letter. The position taken by the comptroller thus appears to have been that the act of 1855, authorizing him to cancel tax sales, and cause the purchase money to be refunded to the purchaser, or his assigns (Laws 1885, chap. 427, § 83), applied only to cases where the invalidity of the sale appeared upon the face of the proceedings, and that he had no power to cancel a sale where the invalidity did not thus appear, but had to be established by extrinsic evidence. The motion for a mandamus was granted by the court at special term, and the order was affirmed at general term, and the comptroller now appeals to this court.

- We are of opinion that the powers of the comptroller, under the statute of 1855, are not so restricted as he contends. The statute, so far from providing merely that he may cancel the sale on discovering that it is invalid for any cause appearing on the face of the proceedings, enacts that when he discovers that it is, for any cause whatever, invalid, or ineffectual to give title to the lands sold, he shall cancel the sale, and forthwith cause the purchase money, with interest, to be refunded to the purchaser. This statute was evidently intended to vest the comptroller with power to make restitution to purchasers at tax sales of the purchase money paid by them whenever it should be found that the sale was ineffectual, for any reason, to enable them to obtain title to the land which they had bought and paid for. This was just to the purchasers, who were entitled, under section 63 of the same act of 1855, to a title in fee, but who, at the time of the passage of the act of 1855, would have had no legal remedy to recover back their money from the state in case their title failed. It is not certain that they would have any remedy now unless one is afforded by the act of 1855. The remedial feature of that act is also supported by considerations of sound policy, as it was calculated to encourage persons to bid at tax sales, by the assurance that they would either get title to the land they bought, or a return of their money, and were not likely to lose both. It was beneficial to the land-owner, because it tended to make his land bring a better price at the sale, and also to the state, as it tended to enable it to collect its unpaid taxes, by encouraging purchases at tax sales. To restrict the comptroller, in this power of canceling sales, to cases where the invalidity appears upon the face of the proceedings, would not only do violence to the language of the statute, but would frustrate its intent. The intent was to protect the purchaser in case the sale was found to be ineffectual to give him title. This protection would be very inadequate if it left him to take the risk of all the many other defects which might exist in a tax title. "As to those, the purchaser would have had no remedy except by petitioning the legislature, in case his title proved invalid; for in 1855 there was no other mode of obtaining redress from the state, and it is at least questionable whether the subsequent statutes establishing the board of audit and the board of claims would afford a remedy.

Section 85 of the same act shows very clearly that by the words, “ for any cause whatever,” the intention was to provide for cases where the invalidity depended upon extrinsic facts, to be established by evidence, for that section provides for the cancellation of the invalid sale after the comptroller’s deed has been executed, and declares it to be the duty of the comptroller, upon receiving evidence that the sale was invalid, to cancel it, and refund the purchase money. It cannot be conceived that the legislature intended to draw a distinction between the two cases, and to provide that, where a deed had been executed, the comptroller should receive evidence, and that, where no deed had been executed, he was not empowered to receive evidence of the invalidity of the sale. Taking the two sections together, it seems plain that it was intended that in both cases the comptroller should receive evidence, and that it was implied that the purchaser, who was the party interested, should have the right to offer such evidence.

The act of 1873, chapter 120, referred to in the opinion of Peokham, J., at special term, is confirmatory of this view. That act provided for setting aside cancellations whenever they have been obtained by fraud, misrepresentation, or suppression of any material fact, or by a mistake of fact. This statute is entirely inconsistent with the theory that the comptroller was limited in his power of cancellation to defects appearing on the face of the proceedings, and could not consider extrinsic facts.

The comptroller objects that the affidavits produced to him, and the testimony of witnesses offered on the part of the relators, were not evidence in a technical sense, because he was not vested with judicial powers and functions, and such affidavits and testimony would not expose the witnesses to the penalties accompanying the giving of false testimony under legal oath before a duly qualified tribunal. This is one of the grounds upon which he bases his refusal to consider or act upon the proofs offered. We think the comptroller had legal authority to receive and act upon the proofs offered, and that they did constitute legal evidence. He was clearly authorized to decide the question of the validity or invalidity of the tax sales, at least as between the state and the purchaser, and for the purpose of determining whether the purchaser was entitled to have the purchase money paid by him refunded out of the state treasury. This was in the nature of a judicial function conferred upon him by law. It is a general principle that, where a power is given by statute, every thing necessary to make it effectual or requisite to attain its end is implied. 1 Kent, Comm., 464; Stief v. Hart, 1 N. Y., 20, 30. To enable him to decide whether or not the tax sales were invalid for any cause whatever, and ineffectual to give title, it was necessary that he should receive evidence of the facts showing their invalidity. The power to cancel, therefore, implies power to take proof of the defect. Indeed, in section 85 it is in terms made the duty; of the comptroller to receive evidence that the sales were invalid, and to act upon such evidence. That section says that “it shall be the duty of the comptroller, on receiving evidence thereof, to cancel the sale,” etc. If witnesses should be produced before him, he is expressly authorized by law to swear them (1 Rev. Stat. 185 § 1), and all the power required to enable him to conduct the investigation is conferred upon him by section 843 of the Code of Civil Procedure, which provides, among other things, that where an officer, board, or committee, to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose,” and the same section provides that whenever an officer, etc., is authorized to receive an affidavit, he may swear the deponent. The comptroller was thus vested,.at the time the application was made to him by the relators, with legal authority, not only to receive the affidavits tendered, but also to administer oaths to the witnesses who might be produced before him, and section 96 of the Penal Code is broad enough in its provisions to subject a witness or deponent to the pains and penalties of perjury for swearing falsely on such a hearing or inquiry by the comptroller.

The learned attorney general, in support of the comptroller’s appeal, takes the further point that the statute was intended to provide only for cases where the invalidity results from some defect in the proceedings of the comptroller himself in respect to the sale. We can find nothing in the statute to support this theory. The provision is that if, for any cause whatever, the sale should be discovered to have been invalid, or ineffectual to give title, the purchase money shall be returned, and the sale canceled. If the tax itself, which was the foundation of the power to sell, is found to have been void, the sale, however, regularly conducted, is ineffectual to give title to the land sold. The failure of title is the essential ground upon which restitution is to be made. The argument that the only invalidity which the comptroller can consider is a defect in his own proceedings, is conclusively answered by section 84 of the same act, which provides that, if the error originated with the town or county officers, the amount refunded shall be charged to the county and reassessed by the board of supervisors, and paid to the state treasurer.

Some criticism is made upon the language of section 83, viz., that if the comptroller shall discover that the sale was invalid, etc., he shall cancel it, etc. The statute could not have been intended to be confined to cases where the comptroller, by his own unaided researches, and without suggestion from any one else, makes the discovery. We think that the meaning was that where he shall find, or it shall be made apparent to him, that the defect exists, he shall act. When the purchaser satisfies him, by evidence, that he can get no title under the sale, we think that it is his duty to discover it, and to cause the purchase money to be refunded. Section 85 expressly provides that, “ oh receiving evidence ” of the invalidity, he shall act.

We are also of opinion that mandamus is the proper remedy to set the comptroller in motion where he refuses to entertain or act upon an application of this description. It is not claimed that he can be directed by that writ how to decide the question, but only to receive the evidence, and exercise his judgment upon it. Being vested by the statute with power to decide, the purchaser, whose money is in the state treasury, having a legal interest in having his right to a return of it determined, is entitled to apply for a mandamus to compel the exercise of the power. Besides, the statute is in terms mandatory, and declares that, on discovery of the defect, the comptroller shall cancel the sale, and cause the purchase money to be forthwith refunded. The relators presented to the comptroller prima facie evidence which, if true, showed that the taxes and sales were invalid, and that they were entitled to be refunded the purchase money, Bellinger v. Gray, 51 N. Y., 610, 617; People v. Hagadorn, 104 id., —, and they offered to produce further satisfactory evidence of the facts alleged. We think it was the duty of the comptroller to hear and decide the case, and that the mandamus was properly granted.

The order should be affirmed.

All concur.


author: Brady, J.

text:
    Richard W. Hurlburt, App’lt, v. Margaret J. Coman, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March, 1887.)

    1. Practice—Vacating a judgment—Within what time motion to be made—Code Civ. Pro., § 1390.
    Section 1390, Code of Civil Procedure, does not apply to a case where the motion to vacate a judgment is made upon the ground of fraud.
    .3. Same—When supreme court not restricted by.
    Section 1390, Code of Civil Procedure, was not intended to restrict the supreme court in the exercise of its jurisdiction to the limit therein contained, but to leave the asserted and certain inherent power of the tribunal in cases of fraud as it was and had been from its organization.
    Appeal from order vacating judgment in this action for fraud.

      W. W. Goodrich, for app’lt; S. Utermeyer, for resp’t.
   Brady, J.

The various statements made on behalf of the respondent, for the purpose of estabhshing fraud and imposition practised upon Mrs. Coman and the infant defendants, may be regarded as substantially admitted ahd without going into any detail here in their presentation, inasmuch as the whole matter must be the subject of a more formal investigation, it is sufficient to say that they fully justified the exercise of the power of the court in vacating the judgment. If, however, the suggestion that these allegations are substantially admitted is incorrect, it must be said that they are abundantly established and the result would be the same.

The only question of any significance which is set forth by the record is whether or not the limit created by section 1290 of the Code, is applicable to the motion from which this appeal springs. It provides that a motion to set aside a final judgment for error in fact not arising upon the trial shall not be heard, except as .specified in section 1291, after the expiration of two years from the filing of the judgment record. The exceptions contained in section 1291 relate to persons against whom the judgment is rendered and who, at the time of the filing thereof, are either within the age of twenty-one years or insane or imprisoned on a criminal charge, or under execution upon conviction of a criminal offense for a term less than for life. None of these exceptions apply to this case inasmuch as the motion was made upon the ground of fraud and granted for the reason that the charges made were established.

It might perhaps be instructive and useful to array the cases, in which the supreme court has asserted its power over its own records, to modify, amend or vacate them independently of any special authority conferred by statute. But it is not deemed necessary to do more than refer to a case in which the court of appeals have plainly intimated that section 1290 does not apply to a proceeding like the one in hand. Matter of Tiden, 98 N. Y., 444. • In that appeal various sections of the Code, limiting proceedings under them, were considered, and it was said that they would govern except in cases where fraud and collusion were made the ground of the proceedings. And the court then proceed to say: “An application to set aside a judgment on the ground of fraud or collusion, or as being void for any reason, or because the court has not acquired jurisdiction of the person against whom it is rendered, is of course not governed by those limitations. But when the ground of relief is the infancy of the party applying or the existence of irregularities in the course of proceeding, we think the application is analogous to that provided by section 2481, and is governed by the provisions of sections 1283 and 1290, and should therefore, if two years have expired from the entry of the decree, be made within one year after the minor arrives at the age of twenty-one.”

Starting, therefore, with the proposition asserted, that this court has an inherent power over its own records and could not be deprived of the right, especially where the parties remain the same, to correct a fraud perpetrated through its process and impressed with the various suggestions made in the case cited, there seems to be no other conclusion justifiable than that section 1290 was not intended to restrict the court in the exercise of its jurisdiction to the limit therein contained, but to leave the asserted and certain power of the tribunal in cases of fraud as it was and had been from its organization.

For these reasons, without going into any elaborate discussion of the subject, we think the order should he affirmed.

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