text:
    JAMES MEEHAN, Appellant, v. THE HARLEM SAVINGS BANK, Respondent.

      Answer — denials in — when sufficient— Code, § 149.
    Where defendants in their ánswcr “ say that they have no knowledge or information sufficient to form a belief,” etc., and “ aver the truth to be that they are entirely ignorant and uninformed, and have not any knowledge or information sufficient to form a belief,” etc., the answer is sufficient in form to put in issue the facts so denied.
    Appeal from an order denying a motion made to strike out portions of the answer, as defective, irrelevant, redundant, immaterial, and frivolous.

      James A. Jeering, for the appellant.

      Ira A. Warren, for the respondent.
   Daniels, J.:

The action was for money deposited in the Harlem Savings Bank, in the name of and to the credit of the plaintiff’s wife. It was averred in the complaint that she had money on deposit in the bank to her credit before her marriage, and soon afterward drew it out. That after her marriage the plaintiff gave her small sums of money for safe keeping, which were the proceeds of his earnings, and that she had .deposited the same in her own name with the defendant. The answer admitted the balance claimed to be on deposit, as alleged in the complaint, but denied that the plaintiff’s wife had drawn out the account existing in her favor at the time of her marriage, or that the plaintiff had delivered money to her for safe keeping, which was the proceeds of his earnings. These denials were, in form, that the defendants “ say that they have no knowledge or information sufficient to form a belief as to the truth of,” etc., and “aver the truth to be that they are entirely ignorant and uninformed, and have not any knowledge or information sufficient to form a belief, whether or not,” etc. And quite an array of authorities have been cited for the purpose of showing the insufficiency of this form of pleading. But neither of them supports that conclusion.

In Elton v. Markham (20 Barb., 344) tlie denial wliicb was held insufficient was, that the defendant “ is not informed and cannot state,” etc. Otis v. Ross (8 How., 193) merely holds that both a general and specific denial should not be allowed. In Sayre v. Cushing (7 Abb., 371) the denial held bad, was, that the defendant “ does not know of his information or otherwise,” etc. And in Young v. Catlett (6 Duer, 437) the defect consisted in grouping and denying certain specific allegations together.

In the present case the denials are explicitly made of knowledge or information sufficient to form a belief of the truth of the specific allegations afterward mentioned. And that is sufficient to conform to what the Code has required, although in one instance it is preceded by the additional statement that they are entirely ignorant and uninformed. That did not render the denial, when it was afterward made, any less effectual. And that it was sufficient in each instance, follows from' what the Code has required in this respect. It is not that the term, denies, or denial, may be made use of in the pleading, but simply that there shall be, when that form may be the one adopted, a denial in fact of any knowledge or information thereof sufficient to form a belief. (Code, § 149.) And that was the effect of the denials contained in this answer. There can be no essential difference between the statement that the defendant has not any knowledge, etc., and the one made that.it had no knowledge, etc., for the latter, equally with the former, is a denial of the existence, on the part of the defendant, of any knowledge or information sufficient to form a belief. The fact that the denial may be coupled with a further statement of the state of the defendant’s information, cannot be important, as long as the form prescribed by the Code may also be directly complied with. And that was done by the form given to the last denial of the answer. (Elton v. Markham, 20 Barb., 344, 348, 349; Flood v. Reynolds, 13 How., 112.)

The effect of these denials was to put in issue the plaintiff’s right to the money; and if well founded, which can only be now determined by a trial, then the money sued for was the property of the plaintiff’s wife, and subject to the rights and claims of her creditors.

The answer, then, contained a statement that proceedings supplementary to execution had been taken upon a judgment against her, and a receiver of her property appointed, who claimed the money on deposit, for the recovery of which this action was brought. It was further alleged that the defendant had been enjoined not to pay over the money, and that the plaintiff had notice of the orders made in the proceedings. If the averment had been made in the defense designed to have been alleged in this part of the answer, that the plaintiff’s wife owned the money, it would have been entirely complete. But it should not be stricken out for that defect, as long as the fact itself has been put in issue by the portions of the answer denying the plaintiff’s title to the money. If it does not belong to him, it follows that it was hers, and liable for the payment of her debts. Taken together the answer discloses a complete defense. If more was in some respects alleged than was required, the plaintiff was in no just sense prejudiced by the excess. The motion should not have been made, and it was very properly denied.

The order should be affirmed, with ten dollars costs in addition to disbursements.

Davis, P. J., and Beady, J., concurred. .

Ordered accordingly.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    In the Matter of the Petition of THE HARLEM PRESBYTERIAN CHURCH, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, to Vacate an Assessment, Appellant. In the Matter of the Petition of THE SECOND A VENUE METHODIST EPISCOPAL CHURCH, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant. In the Matter of the Petition of THE RECTOR, CHURCH WARDENS AND VESTRYMEN OF THE CHURCH OF THE HOLY SEPULCHRE, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Property of religious corporations — not exempt from assessment for local improvements — % 7, chap. 326 of 1840 — not applicable to property exempt from taxation— chap. 313 of 1874, and chap. 580 of 1872 — faikire to publish resolution authorizing the improvement.

    The exemption from taxation accorded to the property of religious corporations, hy 1 Revised Statutes (5th ed.), page 906, section 5, does not include assessments made for local improvements required for the public convenience, and which directly tend to enhance the value of the property in the vicinity of which they are made.
    The provisions of section 7, of chapter 326 of the Laws of 1840, requiring that assessments for improvements should in no case exceed half the value of the property, as valued by the assessors of the ward in which it is situated, relate to and include only the property which is taxable for the ordinary purposes of government; and property exempt from taxation, and therefore not valued on the tax rolls, should nevertheless he assessed for the benefits resulting from local improvements.
    Under the provisions of section 7, of chapter 580 of 1872, and chapter 313 of 1874, an assessment cannot he set aside for a failure to publish the resolution authorizing the improvement,^except in case of fraud or of a repavement.
    The power of the legislature to cure defective assessments discussed.
    Appeal from orders vacating assessments made upon tbe petitioners’ property for tbe expenses of paving certain streets in tbe city of New York.

      E. Ddafield Smith and William Barnes, for tbe appellant.

      Elliot Sandford, for the Rector, etc., of the Church of the Holy Sepulchre. .

      Irving Ward, for the Second Avenue Methodist Episcopal Church and the Harlem Presbyterian Church.
   Daniels, J.:

At the time when the improvement and the assessment were made, the petitioner was and still is a religions corporation existing under the laws of this State, and owned and used the assessed property for the sole purpose of public worship. Under the general law of the State, it was therefore expressly exempted from taxation. (1 R. S. [5th ed.], 906, § 5, sub. 3.) But that exemption extended no farther than to relieve it from the common obligation of property owners for the payment of taxes, properly so called, and they included only that yearly recompense which is paid for the support of the municipal, county, and State governments, for the security and protection afforded in the enactment and execution of the laws.

The exemption did not include assessments made for local improvements required for the public convenience, and which directly tend to enhance the value of the property in the vicinity of which they may be made. For the expenses of improvements of that nature, the law expressly required an estimate and assessment to be made among all the owners or occupants of all the houses and lots of ground intended to be, or by the commissioners deemed, benefited thereby. (Davies’ Laws of the City of New York, 419, § 16, 596, § 1.) These provisions are general, and without exception, and include real estate owned by religious corporations, as well as that owned by individuals. (People v. Mayor of Syracuse, 9 S. C. [2 Hun], 433.) They render all the property liable for the expenses, which may be benefited by the improvement for which the assessment shall be made.

The petitioner’s property was benefited by the improvement for which the assessment was designed to pay. But it is claimed, in favor of its exoneration from payment, that the assessment was irregularly imposed, and that was the view which was taken of it by the court at the Special Term. This irregularity consisted alone • in the fact, that the petitioner’s property had not been valued in conformity with what it was contemplated should be done in order to determine the amount beyond which the assessment should not extend. (Section 7, of chap. 326, of the Laws of 1840.) • That required that the assessments for improvements, authorized by law to be assessed upon the owners or occupants of houses and lots, improved and unimproved lands, should in no ease exceed half the value, as valued by the assessors of the ward in which it might be situated. (Laws of 1840, 273, § 7.) The petitioner’s property was not valued by the deputy tax commissioners, nor by the tax commissioners themselves, who succeeded to the powers, and were required to discharge the duties, of the assessors of the ward. (Laws of 1857, vol. 2, 498, § 5; Laws of 1859, vol. 2, 679, § 2.) In making the roll as they were required to make it, they made no valuation whatever of it, but simply noted it as exempt; and that was all which lawfully could have been done with it. For it was only taxable property which could, either by the general laws of the State,, or those relating to the city of New York, be included in the assessment roll, or valued. (1 R. S. [5th ed.], 909, §§ 7-10; vol. 2, Laws of 1859, 680, § 7, 682, § 12.) Property of the description of that owned by the petitioner, could be neither included in the roll, nor valued by the officers making it, and it consequently could not be within section 7 of the act of 1840. That section made no change in the property which should lawfully be assessed for the expenses of local improvements. It exempted nothing from such assessments, which, by previous legislation, had been rendered liable to them, but simply prohibited the extension of the assessment beyond half the valuation fixed by the assessors. And it could only have the effect of controlling that action in cases where a valuation was by law required to be made. By necessary implication, therefore, it related to and included only the property which was taxable for the ordinary purposes of government, and for that reason could be inserted in the assessment roll. That was as far as the act of 1840, by its terms or reasonable construction, extended upon this subject. The prohibition made had no relation to exempt property, but must have been designed to exclude that, because it.could not lawfully be valued by the tax commissioners; and the act containing it, in no respect undertook to restrict the provisions, previously enacted, rendering all property benefited liable to contribute to tbe expenses of local improvements. For these reasons, the omission of the valuation required to be-given to property not exempt from taxation for ordinary purposes, did not render the assessment of the petitioner’s property irregular. As it could not be valued, as the section contained in the act of 1840 contemplated, the property it applied to should be, and it had been rendered liable to assessment for the benefits secured to it by means of local improvements; it was the duty of the commissioners to assess it notwithstanding the omission to value it. In making such assessment, it was undoubtedly their duty to govern their action by the equity of the provision of the act of 1840, by not extending it beyond half the valuation given to taxable property, for the purpose of taxation. And that seems to have been observed in the assessment of the petitioner’s property, for it was not claimed that it had been made on any greater valuation than half that placed upon other taxable real estate in its immediate vicinity for the purpose of taxation. The board exercised its discretion equitably and in strict conformity to the powers which had been given to it. (Laws of 1859, 682, § 15 ; Matter of Church street, 49 Barb., 455; Matter of Anderson, 51 id., 411; Matter of Palmer, 31 How., 42.)

The resolution providing for the improvement was finally adopted on the 16th day of March, 1869, and for that reason it should legally have been published according to the provisions contained in the act of 1857. (Yol. 1, Laws of 1857, 886, § 37.) But as this was not a case of fraud, and the improvement was not a repavement, the omission to make the publication was insufficient to justify an order vacating or setting aside the assessment. For, at the time it was confirmed and the proceedings to set it aside were instituted, the act 1874 had taken effect, forbidding that to be done on account of such an omission. It was at first enacted that assessments should be vacated for fraud or substantial error. (Laws of 1874, chap. 312.) But this provision was so far limited and restrained by the next succeeding act, as to prevent the omission to publish, as well as other enumerated defects, from being held to be substantial errors. These acts were passed upon the same day, and each related to the same subject and should therefore be considered together. And when so considered, they clearly support the conclusion that' it was designed to take away the remedy previously existing, so far as it was dependent upon the defects complained of in this case. That was within the power and control of the legislature, which has in effect provided that neither the omission to publish, previously required, or to value the petitioner’s property, should constitute a substantial error in these proceedings. The last act, in terms, declared that no assessment previously made, or after- • ward to be made, for any local improvements in the city of New York, for work then completed, or then being made, or afterward to be performed, should be vacated or set aside for any omission to advertise, or irregularity in advertising, any ordinance or resolution relative to or authorizing the improvement, except in cases of fraud and repavement. (Laws of 1874, 367, § 7.) This section went farther even than that, for it prohibited the vacation of the assessment on account of an omission of the nature of that relied upon in favor of the petitioner under the terms of the act of 1840. No construction is required to support this conclusion. The act provides for it in plain terms, by declaring that no assessment shall be vacated, that may be made for a local improvement previously completed, or being made, or afterward to be performed, for the omission of any officer to perform any duty imposed upon him, or any defect in the authority of any department or officer to perform any duty imposed upon him, upon whose action the assessment shall be, in any manner or to any extent, dependent, or for or by reason of any omission to comply with or carry out any detail of any law or ordinance, or for any irregularity, unless the case be one of fraud, or an assessment for repaving. It was then provided that all property benefited by any improvement already made, or afterward to be made, unless the cases were included in the preceding exceptions, should be liable to assessment for the improvement, and that the assessment should be valid and binding notwithstanding any such omission, irregularity, or defect of authority.

These provisions very clearly render it the duty of the court to sustain this assessment, and distinguish it from the case of the First Presbyterian Church v. City of Fort Wayne (36 Ind., 338), relied upon in support of the petitioner’s application.

All the reasons assigned in support of this conclusion require that the same disposition should be made of the application of the rector, church wardens, and vestrymen of the Church of the Holy Sepulchre, to vacate the assessment for paving Seventy-fourth street, from Third to Fifth avenue. The resolution providing for the improvement was finally adopted on the 25th day of October, 1872, and the assessment for its expenses was confirmed on the 21st of July, 1874. The ease is in all substantial respects the same as the preceding one, except that the laws in force when the resolution ■ was adopted, did not require its publication in all the newspapers employed by the corporation, but simply a three days publication before either board acted upon it, and a publication of the yeas and nays, with the names of the persons voting upon it, before it was sent to the last board, or to the mayor. (Laws of 1870, vol. 1, 369, § 20.) There was no proof in the case of a non-compliance with this requirement.

The application made by the Second Avenue Methodist Episcopal Church, to vacate two assessments upon its property for paving Second avenue from Eighty-sixth to One Hundred and Twenty-fifth street, and One Hundred and Nineteenth street from Third avenue to avenue A, differs from the case first considered in the circumstances that the- assessments were finally confirmed on the 15th of January and the 25th of August, in the year 1873, which was before the enactment of the laws already referred to, confirmatory of similar proceedings. But those circumstances require no different disposition to be made of the case, because a law equally as effectual for the correction -of the omission to publish, and the other omission complained of, as the act of 1874, was then in existence, and applied to the ease. (Yol. 2, Laws of 1872, 1416, § 7.) When the assessment was made and confirmed, it was valid and binding under the provisions of this act, notwithstanding the failure to publish the resolution or value the petitioner’s property, even if the case was within the act of 1840. (Lennon v. Mayor, etc., 55 N. Y., 361.)

The laws render the petitioner’s property liable for the benefits received by it from the improvements made; and it was subjected to no additional burden, nor deprived of any substantial right by the act of 1872, which was amended and continued in force by chapter 313 of the Laws of 1874. That act confirmed and ratified the proceedings taken, by providing that such irregularities as were the foundation of the application should not invalidate them.; and that was within the power of the legislature, which could in direct terms have provided for making the assessment without any reference to the proceedings previously had for the performance of the work. (Lennon v. Mayor, supra; Matter of Van Antwerp, 56 N. Y., 261.) From the time when the act took effect, those proceedings became valid and effectual. That was their condition when the assessments were made, and no reason exists for setting them aside.

The orders in these cases should be reversed, with ten dollars costs besides disbursements, and orders entered denying the motions, with costs.

Davis, P. J., and Beady, J., concurred.

Ordered accordingly.


author: Beady, J.: DANIELS, J.: Davis, P. J.:

text:
    PETEN H. WALSH and others, Respondents, v. SOLOMON MEHRBACK, Appellant.

      Pleading.

    In an action on a bond, the complaint alleged that, by the terms of the bond, damages for the breach of the contract referred to in it were duly liquidated at $5,000. The answer denied each and every allegation in the complaint not admitted. It admitted the execution of a bond, with the condition mentioned in the complaint. Held, that the answer put in issue the allegation of the complaint, that, by the terms of the bond, the'damages were liquidated at $5,000.
    Appeal from a judgment entered on verdict directed by the court at Circuit.

      Thomas 'Ey slop, for the appellant.

      Qeo. A. Blade, for the respondent.
   Beady, J.:

This action was commenced to recover the damages sustained by the plaintiffs, in consequence of the violation by one Thomas H. Smith, of bis agreement with them, thato he would not, for the period of three years, directly or indirectly engage in the business of unloading any marble vessel, or sailing craft of any hind,"that might come to the port of New York from any other port or place, etc.

The defendant is sued because he executed a bond in the sum of $5,000 to the plaintiffs, the condition of which was, that Smith would well and truly keep and perform all the terms and conditions of the contract, already mentioned. The bond was not set out in, and no copy of it was annexed to, the complaint. It was alleged that, by the terms of the bond, damages for the breach of the contract referred to in it — that is, the contract of Smith — were duly liquidated at $5,000. The answer denies each and every allegation in the complaint, not admitted. It then proceeds to admit the execution of a bond, with the- condition mentioned in the complaint, and to allege a defense growing out of the contract with Smith. The effect of this answer was clearly to put in issue the allegation that, by the terms of the bond, the damages were liquidated at $5,000. The allegation itself is as well the statement of a conclusion of law, as of the literal contents of the bond expressly relating to that subject. The word term ” has a great variety of definitions, as we find by consulting the lexicographer, and among others, condition, stipulation ; but in its legal signification, as applied to any instrument, it is generally employed to state a result or conclusion, and not the condition or stipulation. For example, it is frequently found in points, arguments, and pleadings, thus: the agreement, though it does not expressly, yet in terms it does, etc.; thus giving the effect of all its provisions. Hence it can be said that when the pleader uses it, it may have a doubtful signification. It may mean that by the contract a certain thing was agreed upon, or that the whole agreement considered together in effect, that is by its terms, contained the avowed condition, stipulation, or contract. The precise character in which it is thus used, is of no consequence when the instrument to which it refers is produced, which is always done unless it be lost, because the court then determines the meaning of its covenants, conditions or agreements. The plaintiffs herein were bound to attest the allegation, therefore, that the bond liquidated the damages. If that averment were a conclusion of the pleader, it was necessary that the papers should be exhibited, because the defendant was under no obligation to deny a legal conclusion. If it were intended as the asservation of a fact, then it was denied, because it was not admitted, and what was not admitted was denied by the answer. The plaintiffs were duly advised of this, for upon the opening of their case, the defendant’s counsel moved to dismiss the complaint upon the grounds, that the action was brought on a bond of indemnity and contained no allegation of damages, and that the damages were not liquidated by the contract as set out in the complaint.

The word, contract, was perhaps infelicitous, because the contract set out. in the complaint was one made with Smith; but a bond is a contract, and was the defendant’s contract, and the allegation as to liquidated damages in the complaint, referred not to the contract, but to the bond eo nomine. The objection stated clearly meant that instrument. The subject presented for the consideration of the court, was the omission in the complaint of all allegations of damages.

The bond was one of indemnity. Its object was to secure the plaintiffs, in case Smith failed faithfully to perform his engagement with them. The motion to dismiss the complaint was renewed upon the same grounds, when the testimony was closed, and overruled. The plaintiffs had given no evidence of damages sustained, and had not produced and proved the bond of the defendant. It is said by the plaintiffs, that the cause was tried upon the assumption that the pleadings admitted the allegation that the damages were liquidated by the bond at $5,000, but such is not the fact. The motions of the defendant show that this was an error, and the converse of the proposition is apparent from the answer itself.

The objection considered being fatal to the judgment, it is not necessary to consider any' other point.

DANIELS, J.:

I agree with the conclusion arrived at by Mr. Justice Bhady, for the following reasons: The answer puts in issue the allegation that the bond, by its terms, liquidated the damages for a breach of the contract, at the sum of $5,000. And proof to sustain the averment was not given by the plaintiffs. Their case therefore stood simply on the bond, as one conditioned for the performance by Smith of the contract he had entered into with the plain riffs. And they should have shown the damages sustained by them for the breach, if any breach was in truth established in the case. (3 R. S. [5th ed.], 661, §§ 5-7.) The evidence given proved nothing of that kind. If it established any thing at all in the plaintiffs’ favor, it was that Smith had violated his agreement, without proving any consequential loss, by means of the breach, to the plaintiffs. The bond, as it appeared in the case, was conditioned for the performance of the contract made by Smith. If he failed to perform the contract he became liable for damages, and his surety in the bond bound for their payment, but for nothing more than that. The damages should have been proven to justify a recovery, if they were not liquidated, and that they were, was not shown. (Patterson v. Parker, 2 Hill, 598; Shaffer v. Lee, 8 Barb., 412.)

Whether there had been any breach of the contract depended upon the view to be taken of conflicting evidence. That presented a question of fact for the jury. And the exception to the direction of a verdict by the court, was therefore well taken. The case was a proper one for the jury, and the defendant did nothing waiving his right to have it submitted to and determined by them. There should be a new trial of the action.

Davis, P. J.:

There should be a new trial because no damages justifying the verdict were shown, and the pleadings cannot properly be construed as asserting and admitting that the damages were in fact liquidated at $5,000. There should have been an assessment of damages upon proof, of a breach of the agreement, unless upon production of the bond a plain and clear contract of liquidation appeared upon its face. Besides the case should have gone to the jury on the question of breach.

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


author: Daiiiels, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM FLOYD and WILLIAM FLOYD, Appellants, v. ALFRED T. CONKLIN, Respondent.

      Injunction — what justifies granting it against officers of corporations — want of title to office in de facto 1/i'ustees not sufficient — not appropriate remedy in action of quo wa/rranto.

    The fact that an improper investment of the funds of a savings hank has heen made by its trustees, does tu't justify a court in continuing an injunction restraining its president from exorc'sing or performing any of the duties or privileges of the office of trustee or of president, unless it be shown that some further misuse of the corporate funds is threatened, or that some other act in violation of the plaintiffs’ rights is conten plated.
    A court of equity will not intei f j-e by injunction in matters relating merely to the internal government of a corporation, so as to restrain directors de facto from acting as such, on the sole ground of the alleged invalidity of their title to their offices. (Mozley v. Alston, 1 Phillips [19 Eng. Oh.], 790; Angelí & Ames on Corp., § 312.)
    In an action, brought in the name of the people, for the removal of a person from an office into which it is alleged he has unlawfully intruded, and for the recovery of such damages as he may have become liable to pay by reason of his usurpation, an injunction is not an appropriate remedy.
    If, for any reason, the continued exercise of his authority shall appear to endanger the interests of the corporation, the action to restrain him must be of a different nature, and be brought by some person whose interests will be jeopardized by the misconduct apprehended,where such action is not brought by the corporation.
    Appeal from an order denying a motion made for the continuance of an injunction.
    The action was brought to determine the right of the defendant to the office of trustee and president of the Mechanics and Traders’ Savings Institution. Both he and the relator claim to have been regularly elected to the office of president, and the defendant has held it, discharged its duties and exercised its authority, and still continues to do so. The injunction restrained him from exercising or performing any of the duties or privileges of the office of trustee of the institution, and from intermeddling with its affairs, and from performing any of the duties, or exercising any of the privileges, of the office of its president, or any control over its funds, property or effects.

      H. E. Davies, Jr., for appellant. A. J. Vanderpoel, for respondent.
   Opinion by

Daiiiels, J.

Beady; J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


author: Daniels, J.

text:
    ISAAC BAER, Respondent, v. JOHN LEPPERT and another, Appellants.

      Indorser — promise of, to pay note not duly protested, — when valid.

    In order to render valid the promise of an indorser to pay a note, which lias not been duly presented for payment, it should be shown that it was made after notice or knowledge that he was not liable on the note on account of the defective nature of the notary’s proceedings. (Claim v. Colville, 8 Johns., 382; Trimble v. Thorne, 16 id., 152; Jones v. Savage, 6 Wend., 658; Tebbeits v. Dowd, 23 id., 379; 1 Parsons on Bills and Notes, 595, 601, and cases cited in notes.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Henry Wehle, for appellants. J. H. Hildreth, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Beady, J., concurred.

Verdict and judgment set aside and new trial granted, with costs’ to abide the event.


author: DaNibls, J.

text:
    GEORGE V. N. BALDWIN, Administrator, Respondent, v. JOHN C. T. SMIDT, Appellant.
    Mmdenee— Oode, § 899.
    In this action, brought upon a promissory note, the defendant interposed a counterclaim for rent due from the plaintiff’s intestate. Upon the trial the defendant was asked whether he had ever received any money from the intestate, or any one representing him. Held, that the question was properly excluded as inadmissible under section 399 of the Oode.
    Appeal from a judgment in favor of the plaintiff^ entered upon the verdict of a jury.

      Allan Lee Smith, for appellant. Geo. V. JST. Baldwin, for respondent.
   Opinion by

DaNibls, J.

Davis, P. J., and Brady, J., concurred.'

Judgment affirmed.


author: Beady, J.

text:
    THOMAS HARBISON, Respondent, v. PHILIP VON VOLKENBURGH and others, Appellants.

      Discovery of boohs and papers — when denied.

    Appeal from an order directing a discovery of books and papers.
    The plaintiff brought this action to recover a balance which he claimed to be due under contracts, by which he was to receive a certain per centage on the gross receipts realized bj' the sale of designated goods. The entries in reference to the transactions covered by the agreements, were made in the defendants’ books, used by them for their general business, of which these sales formed a part. The papers relating to the merchandise were also kept by the defendants, necessarily, it would seem, because they were the sellers, the plaintiff being in their employment as a salesman.
    It appeared from the answer and the admissions of the plaintiff, that he was furnished, during the continuance of his employment, with semi-annual accounts, and with weekly statements as well, to which he objected in one respect only, and then, about the 1st of July, 1873, but not prior thereto. It also appeared that he accepted these accounts and statements, the verity of which he had the opportunity to test by an examination of the books and papers relating to them, and received the payments or credits of the balances which 'they evidenced; that he did not deny the accuracy of these accounts and statements, nor did he deny the possession of these documents. It further appeared that when the demand for an inspection of the books and papers was made, though it was refused as to the person making it, it was not denied to the plaintiff; to whom it was then said that the privilege would be extended. The General Term held, that due consideration of all these elements, with proper reference to the rules which govern applications of this character, rendered it necessary to vacate the order granted by the court below. (Campbell v. Hoge, 2 Hun, 308.) That it was not a matter of right to inspect books and papers, and the privilege is not given, except in extreme cases, where the refusal may involve the loss of a claim or defense ; in other words, unless it is, as already stated, indispensably necessary, and therefore essential to accomplish the administration of justice.

      A. J. Vcmderpoel, for appellants. Amos G. Hull, for respondent.
   Opinion by

Beady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs, besides disbursements.


text:
    In the Matter of the Petition of THOMAS RAE, Respondent, to Vacate an Assessment for Grading Willis avenue.
    Assessment— ehap. 383, 1870, not repealed by chap. 312, 1874.
    Appeal by the mayor, etc., of the city of New York, from an order of the Special Term, vacating an assessment.
    The assessment of which the petitioner complains, was averred to be in excess of the amount of the expense (as per contract) for grading the street, $6,666.50; and it was alleged that the board of trustees of the town of Morrisania had so declared by bringing an action against the contractor to recover from him that sum, paid, they say, by mistake. He denied the claim thus made, insisting that he was entitled to the charges of which the item was composedj and that the plaintiffs were indebted to him. The court held, that the issue thus presented must be tried in that action, and should be determined adversely to the defendant before it could say that the sum named was paid in excess. If the defendant should succeed, then there would be no excess; if he should not, then there would be, and the assessment, so far as it included that sum, would be illegal and should be so declared. If this court, on this application, which is summary and without the valuable forms of trial on issues joined, should hold the contractor to have been overpaid, it might, upon a more elaborate and therefore more satisfactory examination, be pronounced that' he had not been overpaid, and the petitioner would then have escaped a just burden, lawfully imposed upon him. That the order made in the court below should be reversed, and the proceedings remitted to Special Term, there to remain m statu quo, until the decision of the action herein mentioned, the order to be made providing that until then the petitioner’s property should not be sold. That if the appellants fail to prosecute diligently, the attention of the court could be called to it by a proper application, and the necessary relief given.
    The court further held, that, under chapter 383 of the Laws of 1870, it would not vacate the assessment absolutely, but only to the extent of the overcharges, there being no pretense of fraud in this matter. That there could be no doubt that the act of 1870 (supra), relating to the act of 1858, by which proceedings of this character were made a part of the remedial laws of New York city, had not been repealed, the statute of 1874, amendatory of that act (Laws of 1874, chap. 312) being amendatory only of the sections thereof, and not expressly or by implication repealing the act of 1870 {supra), which enlarges the powers of the court, and declares in effect that although the assessment may be erroneous, yet, in the absence of fraud, where it shall appear that the alleged irregularity is an unlawful increase of the expense of the improvement, the court may order the assessment modified.

      Wm. Barnes, for appellant. Irving Wan'd, for respondent.
   Opinion by

Beady, J.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.


author: jDavis, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. IRA M. CLAPP v. THE DEPARTMENT OF POLICE and THE MAYOR, Etc., OF THE CITY OF NEW YORK.

      Boa/i'd of police — power of to remove patrolmen — when proceedings of, not reviewed on cen'twra/ri.

    Ceetioeaei to review the action of the board of police commissioners in removing the relator, a patrolman, from the police force.
    The police commissioners were clothed with power to remove policemen, on charges, notice and trial. In this case the formal proceedings were all taken. A citation was issued and duly served, containing the charge of “ conduct unbecoming an officer,” with specifications of the particular grounds of offense, and summoning the relator to appear for trial on a day specified. The specifications were, in substance, that the relator was acting as, and 'exercising the powers and wearing the uniform of, a patrolman of the police force, without warrant or authority of law. That when appointed he was ineligible and disqualified by law, because he was more than thirty years of age. That the action of the board, in attempting to reappoint him, did not conform to the statute in such case made and provided. The relator, when duly called, did not appear.
    On the trial, which proceeded with due formality, evidence tending to prove the specifications contained in the citation was given, and the relator was found guilty of the charge, and the commissioners adjudged the facts to be sufficient grounds for removal. The court held, that it could not review this proceeding on certio-rari, unless there was a defect, or plain excess, of jurisdiction. (People v. Oholwell, 6 Abb., 151; People v. Board of Police,. id., 162; People ex rel. Platt v. Stout, 19 How. Pr.,-171.)
    The court further held, that the really important question seemed to be, whether the board had power to inquire into the truth of those grounds, and formally remove the relator on finding them well founded, and concluded that they had that power; that dhe commissioners bad power to inquire whether any acting member of the police force was so acting without lawful authority, and, if the board concluded that such was the case, to remove him formally by resolution or order.

      A. Oakey Kail, for relator. E. Delafield Smith, counsel to the corporation.
   Opinion by

jDavis, P. J.

Beady and Daptiels, JJ., concurred.

Certiorari dismissed, with costs.


text:
    JOHN S. GILES, Receiver, etc., Respondent, v. GILBERT R. SPAULDING and another, Appellants.

      Lease — breach of covena/nts — liquidated damages —penalty.

    Appeal from a judgment in favor of plaintiff, entered on the report of a referee.
    A lease, under which the defendants occupied the Bowery theater in the city of New York, contained covenants that the premises should not be let or underlet without the written consent of the lessor, and should not be used or occupied for any other purpose than theatrical or equestrian, operatic and magical performances, and, in reference thereto, it provided as follows: “Nor shall the said premises be underlet in any way without the written consent of the party of the first part had and obtained, under penalty (which is hereby mutually agreed upon) of immediate forfeiture of this lease; and the sum of $5,000 is hei’eby fixed as the liquidated damages against the said party of the second part for a violation of the above written covenants, and using the said premises for any purpose other than equestrian or theatrical, operatic and magical performances.”
    The court say: “ If it were necessary to consider whether this provision was in the nature of a penalty and not otherwise, it would not be difficult, on the authorities, to show that it was so designed; and if not, then that, under the established rules of construction, a forfeiture of the lease and a penalty of $5,000 in addition, for a violation of either of the covenants mentioned, might be regarded as grossly disproportioned to the actual damage, and rejected. (Demies v. Penton, 6 Barn. & Ores., 216; Ootheal v. Talmage, 5 Seld., 551.; Bagley v. Peddle, 16 N. Y., 469; Clement v. Cash, 21 id., 256; Colwell v. Lawrence, 38 id., 74.1 The other questions in the case related to matters of fact.

      Samuel G. Cowrt/ney, for appellants. Wesley Gleason, for respondent.
   Opinion by

Beady, J.

Davis, P. j., and DaNiels, J., concurred in the result.

Report set aside and a new trial granted, with costs to abide the event.


author: DaNiels, J.

text:
    JAMES M. HEATHERTON, Respondent, v. THOMAS HASTINGS, Appellant.

      Receiver of partnership — when he map complete woi'h begun by partnership under contract.

    Appeal from an order continuing an injunction and appointing a receiver in this action, which was brought to dissolve a partnership existing between the plaintiff and defendant.
    The parties to this action formed a partnership, on the 1st day of September, 1873, to carry on the plumbing, gas-fitting, roofing and steam-fitting business, for the term of three years, unless sooner dissolved by mutual consent, or by operation of law. On the 6th of May, 1874, they secured a contract from the United States for furnishing the plumbing materials and labor for the United States court-house and post-office,'in the city of New York. They were to receive for the same either $25,633.80 or the actual cost of their material and labor, with fifteen per cent additional thereto, at the option of the superintendent, at the Completion of the work. Ninety per cent was to be paid in monthly payments as the work progressed, and the residue on the full performance of the contract to the satisfaction of the superintendent. If the work failed to proceed with the required promptness, he had the right, on a further default, after eight days’ notice, to proceed with it himself, deducting the expense from the contract, together with the further sum of fifteen per cent, or to charge the parties fifty dollars per day for each day the work remained incomplete beyond the time designated for its performance. The contract provided that it should be forfeited if assigned without the consent of the secretary of the treasury. Security was given in the sum of $5,000 for its performance, each party furnishing one of the sureties on the bond. The plaintiff and defendant proceeded with the performance of their contract until some time in December, 1874, when it was suspended until further notice by the superintendent, because of the confusion which ensued from both parties assuming to direct the work. He required them to meet him the next day, to compose their differences before him, so that their work could be again commenced and prosecuted to completion. No reconciliation took place, and the work remained suspended.
    The plaintiff then brought this action to dissolve the partnership, and to have a receiver appointed, who should be authorized to complete the contract.
    The General Term held, that the court, in appointing a receiver and directing him to complete the contract, did the very best thing for both parties which the nature of the case at the time permitted. That although ordinarily a court of equity will not undertake to carry on the business of contending parties by means of a receiver, yet cases sometimes arise where the refusal to do that for a limited period would result in great loss to the persons interested. That such cases are exceptional, and justify, as well as require, the exercise of authority which, under other circumstances, would be plainly improper, and that a case of that description was presented in this action. (Marten, v. Van Sohaiele, 4 Paige, 479; Crane v. Ford, Iiopkin’s Oh., 114; Jacleson v. DeForest, 14 How., 81.)

      Ira Shafer, for appellant. Sami. Q. Cowrtney, for respondent.
   Opinion by

DaNiels, J.

Davis, P. J., and Beady, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    PATRICK SHEAHAN, Respondent, v. MICHAEL SHANAHAN, Appellant.

      Cause of action — tort — contract..
    Appeal from a- judgment in favor of the plaintiff, entered upon the verdict of a jury.
    ■ The defendant claimed that the judgment in this action was erroneously recovered, because the complaint was for a wrongful conversion of property, while the cause of action established by the evidence was on contract.
    It was alleged in the complaint, that the plaintiff, at the defendant’s request, delivered to him passage tickets and drafts in blank, to be filled up by him and sold, for which he agreed to make full- and correct returns of such as should be sold by him, with the moneys arising from the sales, after deducting his commissions; that in pursuance of the agreement, the defendant sold a large number of the tickets and drafts, and accounted for them to the plaintiff; that he afterward sold and disposed of other tickets and drafts, for which he failed, neglected and refused to account, and wrongfully converted the moneys arising therefrom to his own use, and neglected and refused to pay over the moneys arising from such sales, though often requested to do so. The General Term held, that the foundation of the claim made by the plaintiff was an express contract, alleged in direct terms to have been made.between himself and the defendant; and although the • breach of it was alleged in terms characterizing the defendant’s failure to perform, as wrongful, it was still no more than a non-performance of the agreement alleged to have been made; and that the allegation that he had wrongfully violated the agreement made, and had converted the proceeds, which he should have accounted for and paid over to the plaintiff, did not change the action from one on contract to one for tort. (Austi/n v. Rawdon, 44 N. Y., 63; Oonaughty v. Nichols, 42 id., 83.)

      A. T. Payne, for appellant. S. L. Rood, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Beady, J., concurred, holding that the plaintiff had the right to waive the tort, and that he did so by the form of the action brought by him.

Judgment affirmed.


text:
    In the Matter of WILLIAM N. LOEW, an Attorney and Counselor of this Court.

      Attorney — malpractice ly.

    Motion to strike the name of William N. Loew from the roll of attorneys and counselors of this court, and disqualifying him from acting as such.
    It was alleged that an answer was served by William N. Loew, as attorney in an action in the Marine Court, on the last day allowed for that purpose, with so defective a verification as to justify the plaintiff’s attorneys in refusing to receive it, and to enter up judgment by default. The words omitted were, “ to be true to his own knowledge,” from the form. prescribed by the Code; and their absence rendered the verification materially defective. The charge was, that after.the answer was returned, for the reason of the defect, an erasure was made between the lines where the clause might appropriately have been inserted, for the purpose of claiming that the answer had been correctly verified, and that clause erased by the plaintiff’s attorneys in the action, so that they could return the answer and enter judgment by default; and that use was made of the answer in the Marine Court by William N. Loew, on a motion to set aside the default taken in the case. Upon that hearing a reference was ordered to ascertain the facts, and upon the proceedings thereupon had, and the affidavits produced in support of and against the present application, the ease was heard without objection in this court.
    The General Term held, that the evidence was- sufficient to establish the charges, and that it presented a case of deceit and malpractice of a very gross description; that nothing less could consistently be done than the direction of an order that the name of William N. Loew be stricken from the roll of attorneys and counselors of this court; that he be disqualified from practising as such; that his license be surrendered to the clerk of this court and canceled; and that he pay the costs and expenses of this application.

      Geo. F. c& J. G. J. Lomgbein, for motion. Geo. F. Seymour, opposed.
   Opinion by

Daniels, J.

Davis, P. J., and Beady, J., concurred.


text:
    In the Matter of the Petition of MICHAEL CASEY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.
    Appeal from an order vacating an assessment for setting out the gutter stones on First avenue, from Sixty-fifth to Eighty-sixth streets, in the city of New York.
    The General Term, in this case, reaffirmed the doctrine laid down in Matter of Peugnet {ante, p. 434), that the certificate of the commissioners, appointed under chapter 580, Laws of 1872, cured any irregularity in the making of the contract; but set aside this assessment on the ground that the commissioners of assessment had omitted from the assessment roll one block, which should have been included therein.

      Wm. Barnes, for appellant. T. F. Neville, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements, and proceedings remitted to the board of assessors, for the purpose of having a new and corrected assessment made, as required by section 5, chapter 338, of Laws of 1858.


author: Gilbeet, J.:

text:
    THE FIRST SOCIETY OF THE METHODIST EPISCOPAL CHURCH IN IRVING, Respondent, v. STEPHEN BROWNELL, Appellant.

      Religious society — when may reincorporate und&>' § 16 of chapter 60 of Rmised Laws of 1813 — Identity of the new with the former body corporate— how det&rmined.

    Under section 16 oí chapter 60 of Revised Laws of 1813, providing for the reincorporation of the religious society of any religious.corporatioñ which has been dissolved by means of any non-user, or neglect to exercise any of the powers necessary for its preservation, a formal dissolution is not necessary; but such reincorporation may be had when the old corporation has become practically dissolved by a neglect to elect trustees.
    When upon such reincorporation the name of the corporation is changed, its identity is not thereby necessarily affected. The question of identity is one of intention.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The court found, among other things, that the defendant was in the possession of the lands in question ; the same being annually cultivated and inclosed with other lands owned by the defendant, which he also cultivated and occupied. That neither the plaintiff, nor its grantors had been in possession, or enjoyed any rents or profits, within twenty years preceding the commencement of this action. That in June, 1838, a religious corporation was created by filing a certificate in tbe Chautauqua county clerk’s office, as required by section 3 of the General Act of 1813. (R. L., chap. 60.) The certificate named six persons as the first trustees, and divided them into three classes.
    The corporate name given in the certificate was, “The First Society of the Methodist Episcopal Church in La Grange.”
    Afterward, and on the twenty-fifth of the same month, one McGregor conveyed the lands in question to the said trustees, naming each and every one of them, and describing them as “ Trustees of the First Methodist Episcopal Church of the village of LaGrange, Chautauqua county, New York, and their successors; ” following the granting clause in the deed, the party of the second part was described as follows: “And to their successors, heirs and assigns, forever, in trust for the First Methodist Episcopal Church of the village of La Grange.” This deed, being duly acknowledged, was recorded in October, 1850.
    That in 1851 a certificate, in form complying with the said third section, was filed in Chautauqua county clerk’s office, naming seven persons as trustees, and giving the name of the corporation as “ The First Society of the Methodist Episcopal Church in Irving,” which is the corporate name of the plaintiff as used in this suit.
    That the evidence established the fact that the place or neighborhood where this land is situated, was commonly called La Grange, when the society was organized and the deed executed, in 1838. That at that time another village or neighborhood, near by, was called Irving, and in 1851 the place first named was also commonly called Irving. '
    That in 1838, the members of the society organized in that year, erected a church building on lands other than those described in the complaint, but on the same street, and within a few feet thereof. That from 1838 to 1851, public and divine worship was held in the said building. That the persons who held the meeting, and made and signed the certificate in 1851, were the same body and society of persons who at that tirtie attended and worshiped in said church, and were the same body and society of persons who had so worshiped in said church from 1838 to the making of the certificate in 1851. That in the year 1851, the members of the society accustomed to assemble and worship in the said church, had decreased in numbers, and had been negligent in selecting trustees. On their own motion they held the meeting, elected the trustees, and took the corporate name mentioned in the certificate of 1851. That the defense of an adverse possession in the defendant and his grantors, was not maintained. That the entity and identity of the corporation formed in 1838, were preserved; the members of the corporation reorganized in 1851, by virtue of section 16, of the act of 1813, deeming the society dissolved by reason of non-user and neglect to exercise powers necessary to its legal existence.
    The counsel for the defendant claimed that the plaintiff was not the grantee named in the conveyance above referred to; and further, that the reorganization was attempted in pursuance of section 13, and, not being within six years after defect of organization, that the power of resuscitation was gone.

      Julius A. Parsons, for the appellant.

      F. 8. Edwards, for the respondent.
   Gilbeet, J.:

The defendant has shown no interest whatever in the lot in controversy, and his claim to hold it by virtue of an adverse possession thereof for more than twenty years, is, we think, unfounded. The conveyance to Newton, the defendant’s grantor, expressly excepted this lot from the premises granted, and declared that the same belonged to the Methodist church; and the conveyance to the defendant contained an exception, in the same words, of a lot belonging to the Methodist church; describing the lot, however, as running back from the street sixteen, instead of sixty-two feet, as in the deed to Newton, his grantor. The latter deed, however, was on record when the defendant took his conveyance, and the record operated as full notice to the defendant of the exception contained in it. Newton also disclaimed any interest in this lot when he sold the adjoining land to the defendant, and pointed the lot out as belonging to the church. It is apparent, therefore, that Newton did not enter upon the lot under a claim of title thereto, and that his possession was not adverse, but that the plaintiff is entitled to tbe legal presumption that such possession was under and in subordination to tbe legal title. (Code, §§ 81, 82; Rosseel v. Wickham, 36 Barb., 386.) It does not appear that the defendant entered under any claim of title to tbe lot in question; on tbe contrary, tbe evidence rather tends to repel any inference of such a claim. But it is immaterial whether bis entry was in hostility to tbe legal title or not, for bis possession began in 1867, and was not continued for a sufficient length of time to bar tbe right of entry of tbe plaintiff.

We are of opinion that tbe plaintiff’s title was clearly established. It is not susceptible of dispute, nor is it disputed, that tbe fee of tbe lot in controversy vested in tbe corporation which was formed in 1838. Tbe only question is, whether tbe plaintiff has succeeded to that title. Tbe evidence precludes all doubt that tbe body, or society, incorporated in 1851, is the same as that incorporated in 1838; and that fact is found by tbe judge below. Tbe proceedings in 1851 to reincorporate tbe society, are expressly authorized by tbe sixteenth section of tbe “ Act to provide for tbe incorporation of religious societies,” passed April 5, 1813 (3 Edm. Stat., 695), which provides that “ whenever any religious corporation shall be dissolved by means of any non-user, or neglect to exercise cmy of the powers necessary for its preservation, it shall be lawful for the religious society which was connected with such corporation, to reincorporate itself in the mode prescribed by this act, and that thereupon all the real and personal property which did belong to such dissolved corporation at the time of its dissolution, shall vest in such new corporation, for the said society.” This statute completely covers the case. The old corporation had become practically dissolved by means of a neglect on the part of its members to elect trustees. It was so regarded by those who were, members of the society at the time it was reincorporated ; and a revival of its corporate existence was all that was intended by that proceeding. The statute does not require a formal dissolution as a condition to the right to reincorpórate, but specifies a neglect to exercise any of the corporate powers necessary for its preservation, as in fact a dissolution, upon the happening of which the corporation might be revived. The change of name does not necessarily affect the identity of the corporation. In Colchester Cor. v. Seaber (3 Burr., 1866) Wilmot, J., laid down the rule, that whenever a corporation, accepts a new charter, it remains, to every intent and purpose, as it did before, though the name be altered ; and he cites Haddoeh's Case (Sir T. Raym.) as in point on this head. In this case it is found, as a fact, that the society which became incorporated in 1851, was the same society which was incorporated in 1838. The latter was therefore superseded by the former. It is also found as a fact, that the name of the place where the church is located had been changed from Lagrange to Irving. It was to conform to this alteration, evidently, that the change of the corporate name was made. The question of identity, says Story, J. — that is, whether the new act creates a new body politic or corporate, or merely revives an old one — is one of intention. (Bellows v. Hallowell and Augusta Bank, 2 Mason, 43.) The intention in this case is unequivocally manifested; and we have found nothing in the record to support the monstrous doctrine that the religious society before us has lost the title to its property by a change of its corporate name. By the express provisions of the statute cited, upon the incorporation of the society, in 1851, the lot in question vested in the new corporation.

The judgment must, therefore, be affirmed, with costs.

Present — Smith, P. J., Gilbert and Merwin, JJ.

Judgment affirmed.


author: Gilbert, J.:

text:
    ESTHER A. JOHNSON, Respondent, v. JACOB SPIES and others, Appellants.

      Gifts inter vivos and, causa mortis — difference between — when assignment necessary to pass title to ¿hoses in action — Code, § 399 — what inadmissible undm\ ■
    The difference between a gift inter vtvos and one causa mortis pointed out, and the question whether or not mere delivery, without an assignment, is sufficient to pass the title in a gift inter vivos, of a chose in action, considered.
    Any fact as to which a party is prohibited from testifying by section 399 of the Code, cannot be established inferentially from his testimony.
    In the case of a gift inter vivos, of a chose in action, it is incumbent upon the alleged donee to show not only declarations by the former owner importing a gift, but an actual or constructive delivery.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to foreclose a mortgage, made by Jacob Spies and Effa, bis wife, to Kebecca Smalley, deceased, and duly recorded in Erie eouuty.
    The plaintiff claims to own the mortgage by gift from Mrs. Smalley in October, 1868. No assignment by the mortgagee to plaintiff was ever made. Mrs. Smalley died July 10th, 1871, leaving a last will in which the defendant Erb was made executor. The evidence given upon the trial, tending to establish a gift, was the declarations of Mrs. Smalley, which the plaintiff was allowed to prove, and the fact that the mortgage was found in the possession of the plaintiff after the death of Mrs. Smalley, who died at plaintiff’s house.

      Thayer dc Benedict, for the appellants.

      P. G-, Parker, for the respondent..
   Gilbert, J.:

If the question were a new one, I should say that a gift inter vivos of a bond and mortgage, or of any other chose in action, cannot be made by delivery only, but that an assignment, or some other act of transfer sufficient to pass the legal title, or an act which amounts to a declaration in writing on the part of the donor that he holds the subject of the gift in trust for the donee, is requisite to complete such a gift. Such is the rule in England. (See May on Voluntary and Fraudulent Alienations, part 5, chap. 2, where this subject is discussed and the authorities are collated.) Chancellor Kent, in his Commentaries, lays down the same rule. (2 Kent Com., 439.) He says: “ The donor must part not only with the 'possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed.” In Gray v. Barton (55 N. Y., 73), this language of the late chancellor is quoted by Grover, J., in delivering the opinion of the Court of Appeals, as containing a correct statement of the rule of law upon this subject. There are good reasons for dispensing with an assignment in cases of gifts causa mortis, which are not applicable to gifts inter vivos. The former are generally made under circumstances which preclude the formal transaction of business, and they are always made subject to the condition that if the donor does not recover, the gift shall take effect from his death, but that if he does recover, it shall be void. An assignment, therefore, would not accord with the nature of the transaction, for it would import an absolute instead of a conditional gift. (Veal v. Veal, 27 Beav., 303; Coutant v. Schuyler, 1 Paige, 316; Harris v. Clark, 3 Com., 93.) But a gift inter vivos takes effect immediately. It is a voluntary transaction, without consideration. When a chose in action has been delivered to a purchaser in good faith, and for a valuable consideration, he acquires a good title in equity, although no assignment has been made; and he is entitled to the aid of a court of equity to compel a transfer of the legal title to him. But a donee has no such right. He has paid nothing for the thing given, and is a mere volunteer. It is a general principle that a court of equity will not aid such a person to perfect an incomplete gift. The distinction in this respect between gifts causa mortis and inter vivos, as it seems to me, is a clear and solid one. It is distinctly pointed out in the English cases, and by this court in Harris v. Clark, supra (2 Barb., 99). The danger of allowing a gift of a chose in action, which is to take effect presently, to be completed by a delivery only, is manifest. It opens a wide door to fraud and perjury, and is therefore opposed to sound public policy^-. Nevertheless, there are decisions which declare that such a gift may be effectually made by delivery merely, without an assignment. One of them is Westerlo v. De Witt (36 N. Y., 345). That, however, was a case of a donatio causa mortis, and the remark of Mr. J. HuNt on this subject was obiter. Moreover, the eases cited by him were all of gifts of the same class. Another is Hackney v. Vrooman (62 Barb., 670), where it was held that the legal as well as the equitable title passed by delivery only, whether the gift was inter vivos or causa mortis. No doubt there are other cases holding that the distinction I have pointed out between these two classes of gifts is without foundation, and probably such an impression widely prevails among the profession. This case can be disposed of without deciding this point, and the question was not presented on the argument. We shall, therefore, content ourselves with having called attention to the conflict of authority on the subject, in the hope that it may lead to a definite and conclusive adjudication upon the question.

Assuming that a complete gift inter vivos may be made by a delivery without assignment, we are of opinion that the evidence in this case is insufficient to establish such a gift. There is no evidence of a delivery. The plaintiff was examined as a witness, and a delivery might perhaps be inferred from her testimony, if she was competent to prove the- fact. But she was not, for the reason that the Code (§ 399) prohibited her from testifying to any personal transaction with the deceased. A fact that she could not prove directly, cannot be established inferentially by her testimony. (Grey v. Grey, 47 N. Y., 554; McCotter v. Lawrence, 11 S. C. [4 Hun], 107.) The evidence respecting the alleged gift may be summed up as follows : In the course of her testimony, the plaintiff was permitted to prove a conversation between the deceased and Mrs. Butler, on the occasion when the first payment on the bond and mortgage was made, viz., October 17th, 1868, in which the deceased said that she would give what was remaining to the plaintiff. Both the plaintiff and her husband testify that the plaintiff had possession of the bond and mortgage at this time, and that such possession had continued ever since. The husband testified that in the winter of 1868-69, the deceased told him that she had given the bond and mortgage to the plaintiff, and the latter was to pay her the interest of the money as long as she lived. How the plaintiff got' possession of the bond and mortgage, does not appear. The deceased was a member of the plaintiff’s family; the bond and mortgage had been kept there ever since they were made; and both the plaintiff and her husband appear to have had access to them always. The mere possession of the bond and mortgage by the plaintiff after her mother’s death, therefore, is a fact of little significance. While we will presume nothing against the plaintiff, we cannot, under such circumstances, presume a delivery of the bond and mortgage to her. It was incumbent on her to show-not only a declaration of the deceased importing a gift of the bond and mortgage, but an actual or constructive delivery thereof. A gift by words, without a delivery or something equivalent thereto, will not suffice, according to the loosest statement of the rule of law upon this subject. It appears that, after the time when it is stated the bond and mortgage came into the possession of the plaintiff, her husband, who is the only witness who testifies to the verbal gift, acted as the agent of the deceased, and in that capacity received payments from the mortgagor, to be applied on the bond and mortgage. The deceased died July 10th, 1871. For more than two years after the alleged gift was made, the title to the bond and mortgage remained in her; she gave directions to the mortgagor respecting the manner in which he should make payments thereon, and nothing whatever appears to have been done by her, indicating any change in the ownership thereof. Under these circumstances, it is impossible to infer an actual, consummated gift. On the contrary, we think the deceased would have been very much surprised, ifj when giving directions to the mortgagor respecting the payments he was about to make, she had been told she had parted with her interest in the bond and mortgage, and that she was- giving directions about her daughter’s property.

We are of opinion that the judgment is erroneous. There must therefore be a new trial before another referee, with costs to abide the event.

Present- — -Smith, P. J., Gilbeet and MeewiN, JJ.

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


author: GrILBERT, J. :

text:
    JOHN HONSTINE, Respondent, v. ANTHONY O’DONNELL, Appellant.

      Witness — impeachment of— Refreshing recollection — how previous statement made lyy him should he brought to his attention.

    Where, upon the cross-examination of one of defendant’s witnesses, Ms attention was called to an affidavit, and he stated tliat he had made it, and that he remembered all that was in it, held, that the plaintiff was entitled to read the affidavit, to show that it contained statements contradictory of those made by the witness upon the trial.

      Quare, whether the whole affidavit, or only that portion containing the contradictory statements, should be read.

      Some three years after the occurrence of the transaction in question, and shortly before the trial of the action, one of defendant’s witnesses, at the request of defendant’s counsel, signed an affidavit setting' forth the disputed facts. Upon the trial the witness contradicted some of the statements therein contained. Held, that the defendant could not show the witness the paper for the purpose of refreshing his memory.
    The proper course in such cases is to examine the witness in the usual way, and, if his evidence contradicts written statements previously made by him, to interrogate him respecting the latter for the purpose of probing his recollection and obtaining an explanation of his inconsistency.
    Appeal from a judgment in favor of the plaintiff, entered upon, the report of a referee. The action was brought upon a bond made by the defendant to one Amos B. Collins, and by him assigned to one Jones, and by Jones to the plaintiff. The defenses were, that the bond was without consideration, and that it was usurious. The plaintiff’s counsel, for the purpose of contradicting certain statements made by one of the defendant’s witnesses, offered in evidence an affidavit made by him in October, 1873, and at or about the time of the transfer of the bond from Jones to the plaintiff) which was received against the objection and exception of the defendant.
    During the examination of this witness by the defendant’s counsel, he stated that he had, at the request of defendant’s counsel, made a written statement and affidavit relating to the transaction in question, and that he knew the substance of it. The affidavit was dated November 28, 1874, some three years subsequent to the occurrence of the facts to -which it related. The defendant’s counsel offered to read this paper to the witness, to refresh his recollection, but the referee excluded it.

      Ha/milton Wa/rd, for the appellant.

      R. Bemis, for the respondent.
   GrILBERT, J. :

Upon the question of the admissibility of Jones’ declarations, the cases of Paige v. Cagwin (7 Hill, 361), and Tousley v. Barry (16 N. Y., 497), are conclusive authorities to sustain the decision of the referee, and the question can no longer be treated as an open one.

It was certainly competent for the plaintiff to prove that the defendant’s witness, Collins, had made written statements of facts contradictory of those made by him upon the trial. The attention of the witness was called to the affidavit made by him, dated October 1st, 1873. He stated ■ that he made it and remembered all that was in it. The only proper mode of establishing the contradiction, was by reading the affidavit, or such parts thereof as were relevant to the matter respecting which he had been examined upon the trial. The only question in such cases is, whether the party is not required to put the whole paper in evidence. It was held by the English judges, in the Queens Case, that he was, and that rule has been generally followed. The same objection, however would seem to be applicable to this rule, that has been held good in relation to verbal conversations or declarations, introduced for the purpose of contradicting a witness, namely, that it opens a door for the admission of statements which neither contradict, nor explain, nor qualify the testimony of the witness. (Rouse v. Whited, 25 N. Y., 170.) But in this case, no objection to. the reading of the whole affidavit was taken, and it is not plain that any part of it should have been suppressed according to the rule in 25 New York (supra).

With respect to the affidavit of November 28th, 1874, we are of the opinion that it in no sense belongs to the class of documents or memoranda which the law always permits, and sometimes requires, to be shown to a witness for the purpose of refreshing his recollection. It was not made contemporaneously with the transactions mentioned in it, but three years afterward. It is not a record or note of any fact or occurrence, but contains a mere statement that the disputed fact did not occur. Such a paper, when put before a witness by the party who calls him, can have no proper effect in refreshing his memory, and would be calculated to stimulate his courage, rather than his veracity. We think the practice of procuring such papers, and then using them ostensibly for the pm-pose of refreshing the recollection of a witness who appears to be adverse, but really to intimidate him, ought not to be encouraged or sanctioned. The proper course is to examine the witness in the usual way, and, if his testimony be in contradiction of written statements previously made by him, to interrogate him respecting the latter, for the purpose of probing his recollection, and of obtaining an explanation of his inconsistency. (Bullard v. Pearsall, 53 N. Y., 230.)

These remarks dispose of all the exceptions in the case worthy of consideration. Upon the merits, the case is not free from suspicion that injustice has been done the defendant. But we have no means of dealing with that on this appeal. The evidence is sufficient to sustain the finding of the referee, and none of the exceptions being good, the judgment must be affirmed.

Present — Smith, P. J., Gilbert and Merwin, JJ.

Judgment affirmed, with costs.


author: GILBERT, J.:

text:
    JOHN ROGERS and others, Respondents, v. MERRITT F. SMITH, as Supervisor of the Town of Greenwood, and others, Appellants.

      Chapter 638 of 1874 — power of legislature to renden' valid, bonds issued without compliance with statutory requirements — Article 8, § 11, of amended Constitution— not retrospective.

    Chapter 638 of 1874, providing that the bonds of the town of Greenwood, issued by the commissioners therein named, should be legal debts and obligations against said town, is constitutional and valid.
    Its validity is not affected by the fact that the Court of Appeals had previously decided that the county judge had acquired no jurisdiction of the proceedings in which the commissioners were appointed by reason of the petition’s being defective in not stating that the railroad company was a corporation in this State.
    Section 11 of article 8 of the amended Constitution, prohibiting any county, city, etc., from issuing bonds to any corporation, does not operate retrospectively.
    Appeal from an order continuing an injunction, in an action to restrain the commissioners and supervisor of the town of Greenwood, county of Steuben, from proceeding for the' purpose of levying a tax to pay coupons or interest on bonds issued by the town.
    On September 5th, 1872, the county judge of Steuben county, upon a petition duly presented to him, appointed the defendants Brundage, Ersley and O’Hargan, commissioners, and authorized and directed them to issue bonds of the town of Greenwood to the amount of $30,000, and to invest them or their avails in the stock of the Rochester, Hornellsville and Pine Creek Railroad Company. The commissioners, on 26th September, 1872, issued that amount of bonds, and they were, on the same day, registered in the office of the clerk of that county, and invested in and exchanged for an equal amount of the capital stock of said railway company. On the 30th September, 1872, upon the application of one Rogers, as relator, a writ of certiorari to review the proceedings had before the county judge was issued, directed to such county judge. The adjudication of the county judge was affirmed by the judgment of the General Term of this court, and was reversed by the Court of Appeals,'upon the ground that the petition did not contain the statement that the railroad company was a corporation of this State. (56 N. Y., 1.) Afterward, by act of the legislature, the order or adjudication of the county judge appointing the commissioners to issue the bonds referred to, and the action of the commissioners, were ratified, confirmed, and declared legal and valid; and the bonds thus issued were declared legal obligations, and the commissioners were authorized to discharge their further duties as such. (See Laws 1874, chap. 638.) This action was afterward brought in the names of four of the tax-payers of the town of Greenwood, and the preliminary injunction order, after a hearing had (upon which the record of the adjudication of the county judge, the papers and proofs upon which it was made, and the act above referred to by the legislature, were produced), was continued. From this order the defendants appeal.

      George B. Bradley, for the appellants.
    The act of the legislature (chap. 638, Laws 1874) was effectual to render the commissioners legal. officers, their action valid, and the bonds by them issued subsisting obligations. {Bank of Chenango v. Brown, 26 N. Y., 467; The People v. Mitchell, 35 id., 551; Butler v.. Palmer, 1 Hill, 324; Town of Guilford v. Supervisors of Chenango Co., 3 Kern., 143; Thomson v. Lee County, 3 Wall., 327; Town of Duanesburgh v. Jenkins, 57 N. Y., 179; reversing S. O., 46 Barb., 294.)

      William Rumsey, for the respondents.
    This action may be maintained by the tax-payers, to set aside the bonds. That tbe town may maintain such an action is well settled. (Town of Venice v. Breed, 1 N. Y. S. C., 130.) The statute of 1872 (Laws of 1872, chap. 161, p. 467) authorizes tax-payers of a municipal corporation to maintain such an action. (Ayers v. Lawrence, MS. Court of Appeals.) The law of 1874 does not validate these bonds. The adjudication of the county judge, after the reversal, was gone, utterly annihilated and expunged. (Mead v. Mead, 18 Barb., 578.) The proceedings of the county judge were coram non judice- — void from the beginning. No one had any authority to act, and no rights could be acquired under them. (People v. Spencer, 55 N. Y., 1, 7; Dobson v. Pearce, 12 id., 156, 164; Harrington v. People, 6 Barb., 607, 610.) Therefore, no one could be a bona fide holder of them, for every man who took the bonds took them with notice of what was in the judgment record, and that the petition was defective, and he was bound, at his peril, to ascertain whether the statute authorizing their creation had been complied with. (Pearce v. M. and 1. R. R. Go., 21 How. [U. S.], 441-443; Starin v. Town of Genoa, 23 N. Y., 439 ; Town of Venice v. Breed, 1 N. Y. S. C., 130; Floyd Acceptances, 7 Wall., 666, 676; Marshv. Fulton Go., 10 id., 676, 683.) The legislature cannot, by retrospective legislation, make valid proceedings which had been had in the courts, but which were void for want of jurisdiction. (Cooley’s Const. Lim., 107,108, note 1, 383; Denny v. Mattoon, 2 Allen, 361; McDaniel v. Cornell, 19 Ill., 226; Mayor, etc., of Baltimore v. Horn, 26 Md., 194; People v. Supervisors, 16 N. Y., 424, 432.) The legislature could not compel the town to issue its bonds and invest in the stock of this railroad. '{People v.'Batchelor, 53 N. Y., 128; Richland v. Lanjorence, 1¿ Ill., 1-7.) The State cannot make a contract for it. (Dillon on Mun. Corp., § 43; People v. Mayor of Chicago, 51 Ill., 17; 2 Am., 278,286; Sharpless v. Mayor, 21 Penn. St., 148,165.) It cannot compel the corporation to invest its money in the stock of a railroad company. {Sweet v. HuTbert, 51 Barb., 312, 317; Olarlce v. Rochester, 24 id., 473; People v. Batchelor, 53 N. Y., 128,140,141.)
   GILBERT, J.:

The legal effect of the statute (Laws 1874, chap. 638) is to render the bonds in question valid and effectual securities. No doubt of the competency of the legislature to pass the statute is felt by us. They had the power originally to prescribe the terms and conditions on which the commissioners should be appointed and should be authorized to issue the bonds. The same power is clearly sufficient to uphold an act whereby a part of the terms and conditions so prescribed has been remitted. In other words, a ratification by the legislature of acts already done, is equivalent to an original authority to do the same acts. The fact that the Court of Appeals has adjudged that the county judge did not acquire jurisdiction of the proceedings under which the bonds were issued, does not affect the question before us. The defect arose from no lack of power in the legislature, but from an omission of the petitioners to state in their petition, that the railroad company, in aid of which the bonds were to be issued, was a corporation in this State. (People ex rel. Rogers v. Spencer, 55 N. Y., 1.) A judicial determination that the acts were void because they were not within the authority originally granted, in no sense'impairs the power of the legislature to cure the defective proceedings by declaring them to be valid. The legislative will governs in both instances. (People ex rel. Alb. and Sus. R. R. Co. v. Mitchell, 35 N. Y., 551; People v. Williams, 3 N. Y. S. C. [Thomp. & Cook], 342; Town of Duanesburgh v. Jenkins, 57 N. Y., 194.)

The recent amendment of the Constitution (art. 8, § 11), prohibiting any county, city, town, or village from loaning its credit to, or becoming the owner of stock in any corporation, does not operate retroactively.

Tor these reasons, we think the order appealed from is erroneous, and should be reversed with costs.

Present — Smith, P. J., G-ilbeRt and MeewiN, JJ.

Order reversed, with ten dollars costs.


author: GILBERT, J. :

text:
    ALBERT KENYON, an Infant, by Guardian, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Qontiibutory negligence — when not a bwr to a recovm'y.

    Where, in an action to recover damages for injuries sustained by a little child, in consequence, of being run over by one of defendant’s engines, it appears that the engine driver might, with the exercise of ordinary care, have stopped the engine, and so have avoided the injury, the contributory negligence of the plaintiff does not constitute a bar to a recovery.
    Motion for a new trial, on exceptions ordered to be beard in tbe first instance at the General Term after a nonsuit ordered by the court. This action was brought by the guardian ad litem, of the plaintiff, who is an infant, to recover damages for injuries occasioned by the negligence of the defendant in running a locomotive engine over the plaintiff.
    The plaintiff, at the time of the injury, was an infant, two and a half years of age, and lived with his parents, at the corner of Philip and Orchard streets, in the western part of the city of Utica, about half a mile southerly from the defendant’s railroad. On the 8th day of June, 1873, this child was allowed by his parents to go at large in the public streets of the city, without an attendant, he stating that he was going to his grandmother’s, who lived “just around the corner,” to which place the boy was in the habit of going, and a few hours later, he was run over by an engine and tender, passing westward on the defendant’s road, and injured. The engineer signaled twice by blowing the steam whistle; first, when about 800 feet, and again when about 100 feet from the child, but no attention was paid to it. Evidence was given, tending to show that there was ample opportunity to have stopped the engine before reaching the child, and also showing the nature and extent of the injury.

      Alfred G. Ooxe, for the plaintiff.

      J. Thomas Spriggs, for the defendant.
    There was such gross negligence on the part of the plaintiff, or of his parents, who have the charge of him, as defeats any right of recovery in this action. (Hartfield v. Roper, 21 Wend., 615; Mangam v. Brooklyn Oity R. R., 36 Barb., 238, 239; Burke v. B. cund Seventh Ave. R. R. Oo., 49 id., 529, 530; Mangam v. Brooklyn R. R. Oo., 38 N. Y. [11 Tiff.], 455, 456, 459; Morrison v. Erie R. Oo., 56 id. [11 Sick.], 309, 310; Sher. & Redf. on Neg., § 491 and notes; Singleton v. E. Gon. R. W. Oo., 97 E. O. L., 287, 288; Terry v. N. T. O. R. R. Oo., 22 Barb., 574, 578, 586; Nicholson v. Erie R. Oo., 41 N. Y. [2 Eland], 526, 529, 541; Matee v. N. Y. O. and II. R. R. R. Oo., 1 Hun, 417,419, 420.) The plaintiff himself being guilty of negligence which led directly to the injury, was not entitled to recover, and was properly nonsuited. (Ernst v. H. R. R. R. Go., 24 How., 97; 32 id., 61; Burke v. Broadway mid Seventh Av. R., Co., 49 Barb., 530; Phillips v. Rens. and Sar. R. R. Go., 49 N. Y. [4 Sick.], 177; Morrison v. R. R. Oo., 56 id. [11 Sick.], 302; Wilds v. E. R. R. R. Go., 24 id. [10 Smith], 432.)
   GILBERT, J. :

Evidence having been.given upon the trial, tending to prove that the engine driver might, with the exercise of ordinary care, have stopped the engine, and so have avoided the injury to the plaintiff, the court erred in granting a nonsuit. In such a case, neither the fact that the plaintiff was wrongfully on the defendant’s railroad, nor the fact that his own negligence, or that of his parents, contributed to the injury, constitutes a bar to a recovery. Neglect on the part of the person in charge of the engine to use ordinary care to avoid injuring a person on the track, is, in contemplation of law, equivalent to intentional mischief. He has no more right to run over a person, lawfully or unlawfully, rightfully or wrongfully, on the track, if he can, by the exercise of ordinary care, avoid doing so, than he has to shoot him. Such a case furnishes a just and well established exception to the general rule, that contributive negligence on the part of the plaintiff will defeat a recovery. (Davies v. Mann, 10 M. & W., 546; Bird v. Holbrook, 4 Bing., 628; Tuff v. Warman, 5 C. B. [N. S.], 573; Scott v. Dublin, etc. R. Co., 11 Irish C. L., 377; Button v. Hudson R. R. Co., 18 N. Y., 258; Austin v. N. J. Steamboat Co., 43 id., 75; Haley v. Earle, 30 id., 208; Lannen v. Albany Gas-light Co., 44 id., 463; O'Mara v. Hudson R. R. Co., 38 id., 445; Mangum v. Brooklyn R. Co., id., 455; Costello v. The Syracuse, etc., R. Co., 65 Barb., 92; Shear. & Red. on Neg. [3d ed.], § 36; Add. on Torts, 21.)

What shall be evidence of an omission of ordinary care, in a particular ease, will depend upon the circumstances attending it. If the person on the track be an adult, the usual signals and warnings of an approaching train ordinarily will suffice, and if these are not heeded, and the engine driver is unable to stop the train after he becomes aware that they are not observed, no neglect of duty can be imputed; for it cannot be laid down as a rule of law, that it is incumbent upon railroad companies to cause their trains to be stopped whenever • a person is in danger by being on their road. Adults may be reasonably expected to take notice of the signals and warnings, and remove themselves out of danger, and if they do not, and if an accident eventually happens, no liability against the company will ensue. But, for obvious reasons, in the case of a small child like the plaintiff, such reliance upon the signals and warnings cannot be reasonably indulged, and it is the duty of the engine driver to act with a greater degree of care and circumspection than in the case of an adult. (Cases supra; Railroad v. State, 36 Md., 364; Norris v. Litchfield, 35 N. H., 271; State v. Railroad, 52 id., 528.) In the case before us, the court, instead of granting a nonsuit, should have submitted to the jury the question, whether, considering all the circumstances of the case, there had been an omission on the part of the engine driver, of ordinary care to avoid the injury, and to instruct them that if they should find in the affirmative, the presence of the plaintiff upon the track did not bar a recovery.

For these reasons, there must be a new trial, with costs to abide the event.

Present — Smith, P. J., Gilbeet and MebwiN, JJ.

New trial ordered, costs to abide the event.


author: E. Darwin Smith, P. J.:

text:
    In the Matter of the Petition of the DEANSVILLE CEMETERY ASSOCIATION to acquire Lands of ISAAC C. MILLER and another.

      Eminent domain — Cemeteries — Legislative discretion.

    The legislature may lawfully provide for the compulsory taking of land by rural cemetery corporations. Provision for the proper and decent burial of the dead is a public necessity and duty.
    The legislature is the proper body to determine as to the necessity and fitness of taking private property for public uses, and as to the agency to be employed in so doing.
    Appeal from an order made at Special Term/appointing commissioners to appraise tbe lands of the appellant, sought to be acquired by the petitioner for cemetery purposes.

      Utley dh Ooggeshall and 0. 8. Williams, for the appellant.

      O. J. Everett, for the respondent.
   E. Darwin Smith, P. J.:

The petitioners are a corporation organized under the act of 1847, entitled, “An act to authorize the incorporation of rural cemetery associations; ” and state in their petition that they have acquired and now own certain lands, held and occupied exclusively for a cemetery for the burial of the dead, and desire to acquire certain other lands adjacent to their said cemetery grounds, now owned by Isaac Miller, the appellant, and therein described, to annex to such ground, for burial purposes, which they have been unable to obtain by purchase.

The single question presented to us upon this appeal is, whether the acts authorizing the taking of lands for rural cemeteries, by appraisement, against the will of the owner, are constitutional. The act of 1847 (chap. 133, Sess. Laws, p. 125), under which the petitioners are incorporated, simply authorized such corporation to take land for the use of such corporation by purchase or devise. In 1869 (chap. 727, Sess. Laws, p. 1764) the legislature authorized municipal corporations, having burial grounds belonging to them in their corporate capacity, to purchase or acquire lands immediately adjoining such burial grounds for burial purposes, providing such lands were vacant and had no building thereon exceeding $500 in value; and if the corporations could not agree with the owners for the purchase of such lands, to acquire title thereto under the provisions of the general railroad act of 1850. This act, in 1870 (chap. 760, p. 1881), was extended to rural cemetery associations, when additional land was needed by any city or village for burial purposes. And by act of 1873 (chap. 452, p. 710) the restriction of the last mentioned statute is removed in respect to rural cemetery associations, and they are placed in the same position with municipal corporations, and authorized to acquire lands for burial purposes, by appraisement, against the will of the owner, under the general railroad act of 1850.

The question is, whether this last mentioned act is constitutional. We do not see upon what ground its constitutionality can be successfully assailed. The legislature, in the acts above referred to, has clearly asserted that lands taken for rural cemeteries are taken for a public use. Provision for the proper and decent burial of the dead is thus recognized as a public necessity and duty. , When such cemeteries are located within the bounds of municipal corporations, or belong to such corporations, no question has been, as I am aware, or can, I think, be made, that the taking of lands by appraisement for said purpose is a legitimate and constitutional exercise of the legislative authority. It is quite apparent that in many cases, it is quite necessary or expedient to acquire lands for such purposes outside the limits of the cities or villages, respectively, of the State. In such case the legislature, in delegating to a private corporation the right to take convenient and suitable property for such purpose, contiguous to any city or village, may be considered, we think, as employing such instrumentality^ as a proper and convenient mode to accomplish a public object.

In such case the legislature is the exclusive judge of the agency it will employ in carrying its will and purpose into effect. (In the Matter of Fowler, 53 N. Y., 62.) The legislature is the proper body to determine as to the necessity or fitness of taking private property for public use, and as to the extent and manner of the appropriation. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y., 244, and People v. Smith, 21 id., 595.) If the clear and palpable effect of an act of the legislature were or be to transfer the property of one person to another for his private use and benefit, it would, doubtless, be the duty of the courts to declare such act unconstitutional. But such is not the object or effect of the act in question.

The rural cemetery corporation, organized under the general act, can make no profit for the stockholders. The lots in the cemetery are to be sold, and the proceeds applied to pay the purchase-money for the ground; and one-half the amount of. the proceeds from the sale of lots, it is provided by section 7 of said act of 1847, is to be so applied, and the residue to be used in preserving, improving and embellishing the cemetery grounds and the avenues or roads leading thereto, and in defraying the incidental expenses of the cemetery establishment; and after the payment of the purchase-money and the debts contracted therefor and for surveying and laying out the land, the proceeds of all future sales shall be appropriated to the improvement, embellishment and preservation of such cemetery, and for the incidental expenses, and to no other purpose or object.

We have no doubt that lands taken for such purpose are taken for the-public use, and that the act authorizing such appropriation is entirely within the constitutional discretion and authority of the legislature.

The order of the Special Term should be affirmed.

Present — Suite, P. J., Gilbert and MerwiN, JJ.

Order affirmed.