author: Vann, J.

text:
    James P. Owen, App’lt, v. Thomas C. Evans, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Mortgage—Ownership—When a question for jury.
    Sarah A. Evans, in 1871, in Kansas, gave defendant her promissory note for $750. and also a mortgage upon 160 acres of land in that state-In 1872 defendant assigned the note and mortgage to John Owen, and. guaranteed the payment. In 1889, John Owen purported to assign the-mortgage to plaintiff, “ together with the bond accompanying said mortgage, and therein referred to, and all sums of money due and to grow due; thereon.” This action was commenced in 1889 upon defendant’s guaranty, and defendant answered that in 1878 John Owen had assigned the; note and mortgage to Geo. H. Evans, the husband of the maker, and alleged that he is “still the owner and holder ” thereof. The evidence upon the trial consisted mainly of letters written by John Owen in New York to George H. Evans in Kansas, relative to the desire of the latter to buy the mortgage which the former threatened to foreclose unless paid,and also letters acknowledging payments on account. Cashier’s checks were also' put in evidence, the last one endorsed “being in full for amount due on S. A. Evans’ mortgage;” but this was returned as being too small. The court directed a verdict for plaintiff. Held, error; that the question of ownership should have been submitted to the jury.
    Appeal from an order of the general term of the supreme; court in the fourth judicial department, reversing a judgment, entered on a verdict rendered for the plaintiff under the direction of the trial court.
    This action was commenced May 20,1889, upon a written instrument dated November 25,1872, whereby the defendant guaranteed the payment of a note and mortgage on that day assigned by him to one John Owen, the assignor of the plaintiff. '
    On the 20th of December, 1871, at Independence, Kansas, one Sarah A. Evans executed and delivered to the defendant her promissory note, dated at the time and place aforesaid, whereby she promised to pay to his order the sum of $750, as follows: $200' each year commencing March" 1,1878, until the entire amount was. paid, with annual interest at the rate of ten per cent “ payable-at the house of - George H. Evans, Cherry -township, Montgomery county, Kan.” At the same time she executed and delivered to. the defendant a mortgage upon 160 acres of land in said county and state as collateral security to said note. November 29, 1872,. the defendant, by an instrument under seal, assigned said note and-mortgage to one John Owen and guaranteed the payment thereof with interest at the rate mentioned. April 12, 1889, John Owen purported to assign the mortgage to the plaintiff, “ together with the bond accompanying said mortgage and therein referred to, and all sums of money due and to grow due thereon.” The answer put at issue the alleged transfer to the plaintiff and set forth among other defenses, that in 1878 John Owen for a valuable-, consideration assigned the note and mortgage to one George H.. Evans, the husband of the maker, and that he “ still is the owner and holder ” thereof.

      Thomas S. Jones, for app’lt; M. H. Powers, for resp’t.

       Affirming 32 St. Rep., 1134.

   Vann, J.

—At the close of the evidence the defendant asked leave “to go to the jury upon the question of whether or not there was a sale of the mortgage and note by John Owen to George H. Evans,” as well as “upon all the questions of fact in the case,” but the learned trial judge denied the application, and directed a verdict in favor of the plaintiff for the sum of $1,276.23, the entire amount claimed. The general term reversed the judgment entered on the verdict upon the ground that the question of ownership of the cause of action should have been submitted to the jury. The evidence addressed to that issue consisted mainly of letters written by John Owen, residing in Jefferson county, New York, to George H. Evans, residing in Montgomery county, Kansas, the answers of Mr. Evans, with a single exception, not having been produced. The following extracts embrace the material parts of the correspondence so far as it was read in evidence: ■“ July 29, (1877). I received a letter from Thomas, saying that you wanted to buy the mortgage of mine; „ to talk business, you can háve it for $1,000, that is throwing off $150. * * * Now, I would as leave take $1,000 as to come out there, for it would cost me a good deal to come out there; but if you do not see fit to buy the mortgage, I shall be out there this fall and shall be prepared to do something in regard to the mortgage on the property when I see the land.” “ September 3, (1877.) I received your letter, and in reply to it I would say that I would take for 'the mortgage $900, if you want it, if not, I will be out there soon.” ■“ November 29, 1877. I received your letter speaking of my brother wanting to come out there. * * * Now I want to know whether you want to pay me $900, or have me send my brother out there, for I am going to straighten it up some way soon." “January 27, 1878. I have concluded to take you to your offer-of $850, one hundred cash, $750 March next. I bad rather do that than to come out there, for I am all alone here this winter. I spoke to my brother of coming, but he is sick and cannot come at present” “February 17, 1878. I will let you have the mortgage if you pay me for it, as soon as you agree5 to pay me, for $850. I always do as I agree. All well.” “ June 9, 1878. I would like the balance of the money as soon as I can get it. Received of George Evans four hundred and twenty-five dollars to apply on mortgage, May 10, 1878.” (Signed) “John Owen. I received the draft about that time, I think.”

The following cashier’s checks drawn on a bank in Independence, Kansas, were produced by the defendant and read in evidence : 1. Api’il 20, 1878, for $425, payable to the order of G. H. Evans and endorsed by him as follows: “ Pay John Owen or order, being for one-half of amount due him oh S. A. Evans mortgage.” It was also endorsed by John Owen. 2. July 22, 1882, for $400, payable to the order of John Owen and endorsed by him. 3. October 28, 1882, for $154.50,' payable to the order of George H. Evans and by him endorsed over to John Owen, ■“ being in full for amount due him on the S. A. Evans mortgage." The last check was returned to Mr. Evans by John Owen in a letter written in his behalf by his attorney, Mr. Tay-. lor, under the date of November 15, 1882, in which he said “ Yours of a recent date with draft on New York for $154.50' enclosed is at hand, which contains an endorsement that it is a? balance due on a mortgage, which is not according to our understanding and therefore I return it I gave you a proposition in-1878 that if you would pay $850 down, I would give you-.the-mortgage, and you did not do it. I have given you the credit, for the amount paid them in 1882. Received another payment- and gave you the proper credit And now ask me to accept this-draft as a balance would be contrary to my precedent. There is,; now due on the mortgage about $900, and I will accept, if ptiidi before the 1st day of January, 1883, $500 in full, and you may let me know at once, as I have a chance to change it, and wish1, to do it at once.” A letter from Mr. Evans to John Owen, dated! October 7, 1877, was read in evidence by the plaintiff as follows : “Now, John, I will give you $100 cash down and the other $750 between now and March.” The two sums of $425 and $400' were not endorsed on the mortgage by John Owen until the; third cheek was returned, when, after taking counsel, he directed! the endorsements to be made as payments on the mortgage. The-amount of the three checks was equal to the price agreed upon.by John Owen and George H. Evans for the mortgage with interest.

In April, 1889, John Owen assigned the mortgage to the plaintiff, his brother, who commenced this action about one month-thereafter. This evidence, if it had been submitted to the jury,, would have authorized them to find that on the 27th of January,. 1878, John Owen agreed to sell the note and mortgage in question to George H. Evans for $850, payable $100 down and the' balance in the month of March following; that on the 20th of April, 1878, Mr. Evans paid Mr. Owen on said contract the sum of $425; that Mr. Owen by accepting said sum and requesting^ payment of the balance as soon as he “ could get it,” waived strict, performance of the contract as to time; that July 27, 1882, a further payment of $400 was made and accepted on the contract and an indefinite waiver of performance as to the remainder thereby entered into; that thereupon the circumstances required notice from Owen to Evans to pay the balance within a reasonable-time, before he could refuse to accept further performance on the part of Evans, or decline to perform on his own part; that no1 notice was given, and on October 28, 1882, the amount unpaid on; the contract, with interest, was tendered by means of a cashier’s check, which was refused on grounds other than because it was not a legal tender. These facts, if found by the jury, would have required the conclusion of law that Mr. Evans had fully performed his agreement and was entitled to the note and mortgage. After performance by Evans of the contract to-purchase, Owen had no personal interest in the note or mortgage, but by operation of law held simply the naked title as trustee for Evans, with no power to enforce the securities, or to do anything with them except to transfer them pursuant to his agreement. Evans was the equitable owner thereof when Owen, who had no? beneficial interest left therein, assumed to assign them to the plaintiff, who is not- “ the real party in interest ” within the meaning of § 449 of the Code of Civil Procedure, because he had no personal interest, nor is he “ a trustee of an express trust ” under that section. He was not shown to be, and he does not claim to be, a hona fide purchaser. The assignment to the plaintiff simply recites “ á good and valuable consideration,” and he testified that he paid “a certain lot of stuff ” for the note and mortgage; “in all $428, part of it in money and part of it in property.” He did not state how much of the sum named was paid’ in money, nor what the property was worth. He bought the securities, nearly twenty years old, payable in Kansas, and there executed ■ by parties who had, since the delivery thereof, continuously resided in that state, where the statute of limitations was shown to be “five years * * ° * upon any agreement, contract, or promise in writing, whether sealed or unsealed.” Ho payment had been made upon either the note or mortgage for seventeen years when the plaintiff bought thfem from his brother and, although he lived in the same village as the defendant, it did not appear that he made any inquiry of him with reference to the matter.

According to the rule, well settled in this state, however it may' be elsewhere, the plaintiff, as assignee of the note and mortgage when both were past due, took those securities subject to all the equities which third persons could enforce against his assignor. Our courts recognize no distinction between equities existing in favor of the mortgagor and those existing in favor of a third person, but hold that, in the absence of an estoppel, an assignee of a mortgage takes only the interest of his assignor and subject to any latent equity in favor of any person. Bush v. Lathrop, 22 N. Y., 535; Schafer v. Reilly, 50 id., 61; Trustees Union College v. Wheeler, 61 id., 88; Greene v. Warnick, 64 id., 220. The recording act of this state has no application because the mortgage did not coverany land situated therein and it does not appear what protection, if any, is provided by statute in the state of Kansas for the benefit of an assignee of a mortgage. It does not even appear that any of the assignments of the mortgage in question was ever recorded.

It is our duty to assume that the jury would have found the facts in accordance with the defendant’s theory, if the question of ownership had been submitted to them. Stone v. Flower, 47 N. Y., 566; Baylies on New Trials and Appeals, 186.

Upon that assumption we think that the plaintiff had no interest in the note or mortgage that he could have enforced against the mortgagor and hence that he had no cause of action against the defendant upon his guaranty of performance by the mortgagor.

The order appealed from should, therefore, be affirmed and judgment absolute rendered against the appellant, with costs.

All concur.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Mary J. Smith, Resp’t, v. Byron J. Town, Rec’r of Taxes, The Village of Saratoga Springs et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    Cloud on title—Assessments.
    Where the deed given on a sale for non-payment of assessments is made presumptive evidence of the regularity of the proceedings, and said assessments are valid on their face and the defects can only be shown by extrinsic evidence, an action to set aside such assessments and the sales made thereon may be maintained to remove the cloud on title created thereby.
    Appeal from judgment of special term, overruling demurrers to the complaint. The notice of appeal brings up for review the order of special term consolidating three several demurrers, and directing that they be embraced in one judgment. Action to set aside two sales of real estate upon alleged illegal assessments and taxes. Plaintiff was the owner of the premises in question when said assessments were imposed and they were made against Gradas D. Smith, Garardius D. Smith and Mrs. G, D. Smith.
    The following is the opinion at special term:
    Potter, J.—The action is brought to set aside assessments made upon the real estate of the plaintiff, situate in said village and town, in behalf of said village and town, and the sales of said real estate by the defendant Town, receiver of taxes for the village, etc., as a mode of collecting said taxes.
    The charter of said village provides that the said village and town may purchase at such sale, and that the receiver shall give a certificate of such sale to the purchaser, and that at the expiration of two years from said sale, the receiver shall give the purchaser a deed of the premises sold, and that such deed or conveyance shall be presumptive evidence that the sale and all the proceedings prior thereto, from and including the assessment of the lands, were regular.
    The plaintiff alleges that the assessments upon the real estate were illegal for the reason that she was the owner thereof and residing at Saratoga Springs, at the time of said assessments, and that the assessments were not made against her or in her name, nor against the name of any other person who was the occupant of said real estate.
    The plaintiff alleges that such sale, certificate and conveyance when given will cast a cloud upon her title, and that the purchasers at said sale, if they have not received a conveyance, are entitled to receive a conveyance, and that the charter makes such conveyance presumptive evidence of the regularity, etc.
    The question is whether this action is maintainable upon the principles of the decided cases, and without the aid of the last part of § 8, chap. 68 of the Laws of 1880 (which has been repealed by chap. 290 of the Laws of 1890), and upon which the cases of Coxe, ex'r, v. Town et al., 31 St. Rep., 365, and Temple Grove Sem. v. Cramer, 10 Abb. N. C., 426, seem to have been decided.

      The principle upon which actions of this kind are maintained is “ that when the claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic ■evidence, it presents a case for invoking the aid of the court of equity to remove the cloud from the title.”
    “ But where the instrument is made presumptive evidence that such proceedings were had, the action lies, if the instrument be in fact void, for a defect in the proceedings. ” Scott v. Onderdonk, 14 N. Y., 9.
    “ When the claim of the adverse claimant to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proven to establish the illegality or invalidity, then a court of equity will interpose to remove the cloud.” Allen v. City of Buffalo, 39 N. Y., 386-390.
    Such an action is maintainable “ when it appears that the record or conveyance is not void upon its face, and that the claimant under it would not develope the ■ defects rendering it invalid by the proof which he would be obliged to produce in proceedings to enforce his claim.” Guest v. City of Brooklyn, 69 N. Y., 506.
    This kind of action is maintainable as well to prevent a cloud from being cast upon the title to the property, as to remove one already upon the title. Pettit v. Shepherd, 5 Paige, 493; Oakley v. Trustees of Williamsburgh, 6 id., 262; Sanders v. Village of Yonkers, 63 N. Y., 492; Clark v. Davenport, 95 id., 477.
    The charter of the village of the defendant makes the conveyance presumptive evidence that the sale and all the proceedings were regular.
    It is made the duty of the defendant, the receiver, to sell if the taxes are not paid, to give a certificate of the sale to the pur■chaser, and at the end of two years a conveyance to him. This deed entitles the purchaser to the possession of the premises sold, and to institute summary proceedings to obtain the possession.
    The production of the conveyance establishes the purchaser’s title and his right to possession to the property. . If the owner would maintain his title he must overcome the presumption of the validity of the purchaser’s title, not by showing that he bought .and paid for the property and took a deed from the owner, and has occupied it ever since and for any number of years, but by showing that there was a fatal defect in the proceedings which lead to the tax title under which the purchaser claims.
    The complaint maintains that the certificate has been given the purchasers at the two sales which have already taken place and .an intent to sell for the non-payment of the tax mentioned in the third count of the complaint, and that the defendants intend and threaten to complete such sales.
    The defendants refer to the cases of Sanders v. The Village of Yonkers, supra, and to Clark v. Davenport, 95 N. Y., 477, and to Guest v. City of Brooklyn, 69 id., 506, in support of their contention.
    It will be observed that all those cases cite and approve thé general principle upon which this class u£ actions have been maintained, as above cited. But the court in those cases assign special reasons why those cases do not fall within the general principle. In the case of Sanders v. Village of Yonkers, those reasons were “ that the purchaser is not entitled to a lease until he has at least given sixty days-notice” “or that the trustees threaten or design to give one,” “that there was no allegation that any certificate had been given” “or that there was any imminent danger that a lease would be given,” or that “ the interference of a court of equity was necessary to prevent a cloud upon the title.”
    The case of Clark v. Davenport, 95 N. Y., 477, cited by defendant, recognizes the rule that such actions may be sustained to remove or prevent a cloud upon the title, but holds in that case there was no occasion or necessity for such action because there was no alleged determination upon the part of the defendant (the comptroller of the state) to create the cloud, and moreover because the comptrollerupon an application could cancel the sale, and upon his refusal to do so in a proper case his refusal could be reviewed upon certiorari, or a mandamus issue to compel his compliance.
    I do not think the provisions in § 4 of chap. 68, of the Laws of 1880, in relation to the six months notice of the sale and purchase, required to be given to a mortgagee, judgment creditor or owner before the lien or title shall be divested, has any bearing upon the question involved in this action. That provision has relation to another condition of redemption. There is no time specified when such notice shall be given. It may as well bel after as before the time when the conveyance is made. It is no part of the proceedings which are to take place before the conveyance is made, and it is the conveyance which gives the purchaser the title to/the premises, the right to their possession, and raises the presumption that all the steps necessary to confer title have been taken.
    This statute is by far more dangerous than the statutes under which actions of this kind were sustained in Hatch v. The City of Buffalo, 38 N. Y., 276; Scott v. Onderdonk, 14 id., 9; Allen v. City of Buffalo, 39 id., 386-390; Crooke v. Andrews, 40 id., 547, 549-550.
    Those statutes required a record to be kept of the proceedings to assess, etc., and made such presumptive evidence of the regularity, etc., of the proceedings to assess and sell, or of .the facte stated therein. But the charter of the village does not require a specific record to be kept, and makes the conveyance presumptive evidence, etc.
    I am of the opinion that the complaint in this case sets forth a cloud upon the plaintiff’s title to the premises, and that the plaintiff is entitled to the relief sought by this action. Indeed, I am not quite able to see why the defendants interpose any defense in view of the concession made by the defendant that the assessment was illegal and void. Until the defendant abandons and cancels the sale the plaintiff would not likely be able to find a purchaser of the premises at their fair value, for the plaintiff and her purchaser will be constantly and indefinitely menaced by the holder of a tax title under a conveyance presumed to be regular .and valid. The defendant should not be permitted to hold a weapon which may at any minute be wielded to the injury of the plaintiff’s rights, and there are many and weighty reasons why actions of this character should be brought, other, than actions at law at some remote and indefinite period of time, to establish and ■determine the title to the premises.
    The demurrer should be overruled, with leave to the defendants to answer upon payment of costs (to be taxed) within twenty days after notice of the taxation.

      W. P. Butler, for app’lts; Ira D. Roods (J. W., Hill, of counsel), for resp’t.
   Mayham, P. J.

—We think the judgment overruling the demurrers in this case right, and that the reasons given by the learned trial judge in his opinion printed, in the case are sound.

We are also of the opinion that the order made by the special term consolidating the several interlocutory judgments into one was correct practice under the circumstances of this case.

That order was made on the application of the defendants, and was for, their benefit; and seems to conform to the demand in their notice of motion. From that order the plaintiff has not appealed, and we do not think the defendants are in a position to ask for its reversal.

The judgments entered upon the demurrers, and the order consolidating the interlocutory judgments into one, are affirmed, with costs, with leave to the defendant, within twenty days after the service of the order of affirmance, to answer the complaint on payment of costs.

Putnam and Herrick, JJ., concur.


author: Herrick, J. Mayham, J.

text:
    The Round Lake Association, Resp’t, v. Bradford D. Kellogg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    Abase—Covenants—Restraint of trade.
    Defendant is the assignee of a lease of land from plaintiff, which contains a provision that the same is made subject to all the rules, regulations and changes which may from time to time be adopted in relation thereto, and also that it was accepted subject to such rules and regulations, which were made a part of the lease. Subsequently the executive committee of plaintiff adopted a rule prohibiting the sale of general merchandise on the grounds of the association without a permit in writing, and fixed the sum at which defendant would be permitted to sell. Defendant having refused to pay the license fee, this action was brought for violation of the covenant. Held, that the covenant was one concerning the land, and ran with it; that in view of the purposes of the plaintiff corporation, and the circumstances, the rule adopted was a reasonable application of the covenant, and its enforcement proper.
    Appeal from judgment in favor of plaintiff, enjoining defendant from carrying on his business of selling groceries, etc., at Round Lake without first obtaining a permit or license therefor from plaintiff, and without having paid the fee therefor.

      The following is the opinion of the court below:
    Tapp AN, J.—This is an action to perpetually enjoin the defendant from carrying on the business of selling merchandise upon lots 1426 and 1427 situated on the westerly side of the railroad at Round Lake, leased by the plaintiff and held by the defendant under assignments of said leases.
    It is important to first consider what right, title or interest was acquired by Caroline J. Bancroft to lot 1426 by virtue of a grant and demise from plaintiff to her, dated March 7, 1884, assigned by her to defendant September 24, 1886; also by Rice Hall to lot 1427 by virtue of a like grant and demise from plaintiff to him, of like date, assigned by him to defendant September 5, 1886.-
    The leases run to the lessees, his and her executors and assigns, but the fourth paragraph of such leases provide that the lessee shall not assign the lease without first obtaining the written consent of the party of the first part, its successors or assigns thereto. It does not appear that the defendant obtained such written consent in either case, but the defendant entered into occupation of the premises under the assignments to him, and holds and occupies the same under said leases. Permitting defendant to do so, and bringing this action against him to enforce an alleged provision of such leases, is a waiver of the breach of such condition in regard to the written consent to the assignment of such leases. Chautauqua Assembly v. Alling, 46 Hun, 582, 584; 12 St. Rep., 767; Murray v. Harway, 56 N. Y., 337.
    Defendant holds the title of the leases. He stands in the shoes of his assignors with their rights, and subject to their liabilities -under the provisions of the lease for the benefit and protection of the plaintiff.
    The plaintiff was duly incorporated under an act entitled “ An act to incorporate the Round Lake Camp Meeting Association of the Methodist Episcopal Church of the Troy Conference, ” passed May 5, 1868.
    By the second section of that act such corporation was given power to purchase and hold personal and real estate, and take and hold the same by gift, grant and devise, and to mortgage, sell and convey any of its real or personal estate whenever it should be deemed advisable to promote the interests of the corporation; and the sixth section of such act confers upon said corporation the general powers, and made it subject to the general restrictions contained in the eighteenth chapter of the first part of the Revised Statutes. 1 R. S., Birdseye ed., 672.
    The second section of said act of 1868 provides that the corporation shall have power to adopt a constitution and prescribe rules and regulations not inconsistent with the constitution and laws of this state for its government and the election of its officers; and the fourth section provides that the persons named in the first section of the act shall be the first trustees; and provides for dividing the trustees into classes at their first meeting, and for the election of their successors, by electing each year after the organization seven trustees to hold office for three years and until others shall be elected in their places; and provides that all elections of trus-. tees shall be held in the manner prescribed in the constitution and by-laws of the said corporation, and that any vacancy occurring in the intervals of election may be filled by the board of trustees.
    The original incorporators were twenty-one different persons named in the first section of the act.
    Section one of the chapter of the Revised Statutes above mentioned provides that every corporation created after the enactment of that law shall have the following powers, although they may not be specified in its charter or the act in which it shall be incorporated, viz:
    1. To have succession by its corporate name for the period limited in its charter, and when no period is limited, perpetually.
    2. To sue and be sued, complain and' defend, in any court of law and equity.
    3. To make and use a common seal and alter the same at pleasure.
    4. To hold, purchase and convey real estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.
    5. To appoint such subordinate officers and agents as the business of the corporation shall require and to allow them a suitable compensation.
    6. Make by-laws not inconsistent with any existing law for the management of its property, the regulation of its affairs and for the transfer of its stock.
    Section 6 of this same statute provides that when the corporate powers of any corporation are directed by its charter to be exercised by any particular body or number of persons, a majority of such body or persons, if it be not otherwise provided in the charter, shall be a sufficient number to form a board for the transaction of business and any decision of a majority of the persons duly assembled as a board shall be valid as a corporate act.
    Such body is not duly assembled unless each -person constituting it is present or each person has had notice and a majority has assembled, then the decision of such majority is valid as a corporate act. People's Bank v. St. Anthony's R. C. Ch., 39 Hun, 498; Potter on Corporations, 417, chap. 13, § 336, note 1; People v. Batchelor, 22 N.Y., 128; Peoples Ins. Co. v. Westcott, 14 Gray, 440; Despatch Line of Packets v. Bellamy Co., 12 N. H., 205; S. C., 37 Am. Dec., 203; Elliot v. Abbot, 12 N. H., 549; S. C., 37 Am. Dec., 227.
    This is the rule nothwithstanding what is said in Porter v. Robinson, 30 Hun, 209, and Edgerly v. Emerson, 23 N. H., 555; S. C., 55 Am. Dec., 207.
    This is a sufficient concession to the convenience of transacting business and a conservative construction of this statute.
    When a society or corporation is composed of an indefinite number of persons, as is the case with this corporation, a majority of those who appear at a regular meeting of the same constitute a body competent to transact business. Potter on Corporations, § 338, 351; Ex parte Willcocks, 7 Cowen, 402, 409; Field v. Field, 9 Wend., 394, 403.
    Notice is not required where the times and places for holding is fixed in the charter or constitution or by-laws, or in the published rules and regulations of the corporation. Potter on Corporations, §§ 340, 342.
    Where it appears on the record of the corporation that a meeting of the body was held and a quorum was present, notice to the others is presumed, but the contrary may be shown by proof. Sargent v. Webster, 13 Met., 497; Lane v. Brainerd, 30 Conn., 565; Middlesex Husbandmen v. Davis, 3 Met., 133; Chouteau Ins. Co. v. Holmes, 68 Mo., 601; S. C., 30 Am., 307.
    The first meeting of the trustees of the plaintiff was held at Troy May 4,1868, and the executive committee was then directed to draft a constitution and report the same at the next meeting of the board. The next meeting of the trustees was held at the committee tent on the grounds, September 9, 1868, the records showing twelve trustees present.
    The committee on constitution then presented their report; and the constitution and by-laws then reported by said committee were then adopted by the trustees by voting on each article.
    These original incorporators and trustees were authorized by the act of incorporation to adopt a constitution. They were then the corporation. They were given carte blanche. The act, except by the name, did not indicate even the objects of the corporation. This constitution provided that the objects of. the association should be to hold such camp meetings within the bounds of the Troy conference as they might choose.
    Article 3 provides that the members of the association should be: First. The persons named in the act of incorporation and their successors. Second. All persons who should contribute to the fund of the association an amount of money not less than $100. Third. Churches which should contribute $100 and upwards might be represented by their stewards or the pastors of such churches as their quarterly conference might direct Officers were to be elected by the trustees from their number..
    The president, vice-president, secretary and a prudential committee of three, together were to constitute an executive committee. And it was provided that they should have full power to act for the board of trustees during the interim of their regular meetings and should hold their offices until successors should be duly elected.
    It is provided by article 5, § 2, that the trustees shall have the general oversight of all the interests of the association and shall have all the power vested in them by virtue of the acts of incorporation.
    By § 5, article 6, it is provided that the executive committee shall arrange the price of the ground rent, privileges for boarding, tents, and other privileges.
    Article 10 provides that this constitution and these by-laws shall not be altered or amended except by a vote of three-fourths of the members present at a regular meeting of the association, written notice of such alteration or amendment having been given at a previous meeting. This constitution was approved by the stockholders of the association assembled at a meeting at the State Street M. E. Church, Troy, March 31, 1869.
    At the sixth annual meeting of the association, held at the same place, March 25, 1874, a committee appointed at the last, annual meeting to prepare such amendments to the constitution as will make it conform to the change from the script form to the lot form reported through Dr. King, and the meeting proposed to to take up the proposed amendments section by section, all of which were adopted with one dissenting voice. The records, showed proper notice had been given at a previous meeting and the amendments to have been regularly properly adopted.
    The amendments attempted by the executive committee of the trustees at their meetings held March 12, 1887, d'o not appear to have been passed as provided by the previous constitution and were, therefore, without proper authority and did not become a part of the constitution.
    Due regard to the rights of all the members of the corporation required strict regularity to give authority to amendments to the constitution and by-laws, which under an act as general as that incorporating the plaintiff is the record of the rights, power and purposes of the plaintiff in which every member is equally interested.
    The executive committee were clothed with all the powers of the trustees during the interim of their regular meetings and had authority to make the rules and regulations of 1887, and such rules were duly made by said executive committee at its meeting held at Albany, March 26, 1887; such regulations provided that merchandise, general or special, should not be sold or offered for sale on any lot or at any place cm the association grounds either on the east or west side of the railroad without a purchase permit given in writing by the executive committee. The executive committee had power to then pass a resolution that the defendant be permitted to conduct a store for the sale of groceries, dry goods, crockery, hardware, tinware, boots, shoes, tobacco, cigars, at fifty dollars for 1887_ and not to exceed $400 for the next four years. These regulations referred to the ordinary transactions of the corporation, and its full power was lawfully exercised in passing them.
    By chap. 244, Laws of 1869, the trustees were authorized to issue script payable as the interest of the association might permit, to the amount of $25,000, to be divided into shares of $100 each, bearing interest of not exceeding seven per cent per annum as the balance in the hands of the treasurer might justify. After meeting all legal claims against the association, it was provided that all surplus of excess after making improvements on the grounds and public buildings as the interest of the association demanded to be paid to the trustees of the Troy Conference for the benefit of the conference claimants.
    By chap. 227, Laws of 1873, the association was given power to sell and convey lots to script holders, and to receive the script held by them in exchange in payment therefor, upon such terms as the . trustees might prescribe. The leases in question were made in pursuance of the power given by this act They contained two covenants, the first of which, after the usual words of leasing and the description of the lots, was as follows: “ Subject, to all the rules, regulations and changes which may from time to time be adopted in relation thereto.” This covenant relates specially to the specific lot demised by the lease.
    The other covenant is as follows: “ The lease is accepted by said party of the second part subject to all the rules and regulations which may from time to time be adopted and promulgated by the party of the first part for the government of the said grounds, and which are hereby made a part of this lease as fully to all intents and purposes as if they were incorporated therein." This covenant follows a provision in said leases in the following language: “ This lease is granted by said party of the first part and accepted by said party of the second part subject to the following express conditions, reservations and restrictions.”
    The tenure of land by the constitution is allodial, so that the-entire and absolute property is vested in the owner, and such was the plaintiff’s title before these leases were made.
    The power to sell and convey real estate includes the power to sell and convey a restricted and limited interest by lease.
    This corporation has the same power under the statute to demise their lands, giving only a limited or restricted interest, that an individual has.
    By the leases in question the plaintiff did not convey the entire- and absolute property, and the defendant by the demise is not the owner of the premises in that sense.
    The design of the provisions in the lease was to create an easement or servitude in the property leased for the benefit of other-lots owned by the plaintiff, some of which would be acquired by others, and for the purpose of effectually securing the objects for which the association was created and is conducted.
    The principal and primary purpose of dividing the property into lots was to provide the persons congregating on the grounds of the plaintiff with an opportunity to erect local habitations more-convenient than the tents under which the persons attending camp meetings were originally sheltered.
    Plaintiff had provided a store for the sale of general merchandise, and other stores for the sale of different kinds of goods, and had rented the same for such purposes, and thereby derived a portion of its revenue therefrom, and had the right to make such reservations and conditions, and require such covenants as would protect its own place of business from a competition which would impair the ability of the occupants to contribute toward such revenues, and would°secure the use of all other property for residential purposes only.
    Where a grantee binds himself by a covenant in his deed limiting the use of land purchased in a particular manner so as not to interfere with the trade or business of the grantor, such covenant may be enforced against the grantee or has grantee taking title-with notice of the restriction.

      A covenant in restraint of trade is valid if it imposes no restriction upon one party which was not beneficial to the other, and was induced by a consideration which made it reasonable for the parties to enter into; and the covenant will be enforced if a disregai'd thereof will work injury to the covenantee. Hodge v. Sloan, 107 N. Y., 244; 11 St. Rep., 770.
    The court in that case says: “ Parties competent to contract have contracted, the one to sell a portion of his land, but only upon such conditions as will protect himself in the prosecution of business carried on upon the residue, the other agreeing to buy for .a consideration affected by that condition, and enabled to do so •only by acceding to it, and he therefore binds himself by contract to limit the use of the land purchased in a particular manner. By reason of it the vendor received less for his land, and the plain and express intention of the parties would be defeated if the covenant could not be enforced.” Ci

      Tulk v. Moxhay, 1 Hall & Twells Ch., 105, was where the purchaser of the land which was conveyed to him in fee simple covenanted with the grantor that the land should be used and kept in ornamental repair as a pleasure garden, and it was held that'the vendor was entitled to an injunction against the assignee •of the purchaser to prevent him from building upon the land.
    The court says : “Of course the party purchasing the property which is under restriction gives less for it than he would if he had bought it unencumbered. Gan there be anything much more inequitable or contrary to good conscience than that a party who takes property at a less price because it is subject to a restriction should receive the full value from a third party and that this third party should then hold it unfettered by the restrictions under which it was granted ? For illustrations of the same principle see Tallmadge v. East Riv. Bank, 26 N. Y., 105; Trustees Col. Col. v. Lynch, 70 id., 440; Carter v. Williams, L. R., 9 Eq. Cas., 678; Parker v. Nightingale, 6 Allen, 341; Burbank v. Pillsbury, 48 N. H., 475.
    The covenant concerns the land granted, and runs with it. It was inserted in the lease as a covenant defining the conditions upon which the demised premises were to be held. In Brouwer v. Jones, 23 Barb., 158, 160, a covenant not to use certain premises in a particular way was enforced against a purchaser in favor of a previous purchaser of the lands in same tract from the same grantor upon the ground that the covenant was for the benefit of the •owners of the whole tract and created an easement or servitude in the land which would be enforced in favor of any owner of any part of the tract for whose benefit it was created. See also, Barrow v. Richard, 8 Paige, 351; Wetmore v. Bruce, 118 N. Y., 319, 322; 28 St. Rep., 687; Whitney v. Union R. R. Co., 11 Gray, 359.
    A court of equity or law gives full effect to the stipulation on the complaint of a party for whose benefit and protection as owner of the land the stipulation was intended. See cases above cited; also, Hills v. Miller, 3 Paige, 256; Trustees of Watertown v. Cowen, 4 id., 511; Dorr v. Harrahan, 101 Mass., 531.
    The covenants in these leases must be construed with reference to che acts of incorporation, the amendments thereto, the constitution and by-laws of the plaintiff in existence when the leases were made, and in view of the fact that plaintiff had acquired lands to further the common objects of the association, some of it to be held for its special use and occupancy and the common benefit of all the members and other portions to be demised in like manner as the lands included in these leases; that to accomplish the. purposes for which the plaintiff was incorporated, these lots and all others that might be demised were to be made valuable and enjoyable as aids to the common.purpose by means to be derived from the plaintiff’s revenue and by exercise of the power to make-rules and regulations for the common benefit of all the members, of the association.
    The organization of the association was not for the purposes of trade or for pecuniary profit to the members arising from trade. Dealers in merchandise could not have been reasonably expected by the parties to the lease to carry on their business on the grounds of the plaintiff, except to supply the immediate needs of those who might for the time be there and participate in the religious and other meetings to be conducted there. Such parties must, have understood that the determination as to who should 'trade and upon what terms was to be with the plaintiff, to be regulated with reference to its revenue, and to guard against the carrying on of unnecessary, improper trade, tending to disorder and to defeat the purposes of the organization.
    In this view, restraining a lot owner as to trade was a reasonable application of the covenant in the lease within its language, spirit! and meaning.
    But if it is not the best provision which we can see the parties could have made to accomplish the object intended, criticism against it is met with the rule that the owner of land selling or leasing it may insist on just such conditions as he pleases touching the use and mode of enjoyment of land. He has a right to define the injury for himself and a party contracting with him must abide the definition. This is substantially the language of the court in Steward v. Winters, 4 Sandf. Ch., 590; and for illustrations of the same doctrine, see Howard v. Ellis, 4 Sand., 369; Ambler v. Skinner, 7 Rob., 561; Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47; Avery v. N. Y. C. & H. R. R. R. C., 106 N. Y., 142; 8 St. Rep., 612; Post v. Weil, 115 N. Y., 361; 26 St. Rep., 131; 2 Wash. on R. P., 12; Moore v. Pitts, 53 N. Y., 85; Gibert v. Peteler, 38 id., 165; Plumb v. Tubbs, 41 id., 442; McAdam’s Landlord & Tenant, 176, 177, §§ 98, 99; 361, 366, 161; Peck v. Conway, 119 Mass., 546, 548.
    The defendant was notified by the terms of his lease of the-rights of plaintiff and he was informed by the officers of the plaintiff before he began to build his store that he would be required to purchase a permit for the sale of merchandise. An injunction in this class of cases is granted almost as a matter of course upon a breach of the covenant. Such a breach is a sufficient ground for interference by injunction. Pomeroy’s Equity-Jurisprudence, 273, § 1342; Brispham’s Pr. of Equity, 514, § 461.

      And this view has been enforced by this court in Chautauqua Assembly v. Alling, 12 St. Rep., 767, in a case in many respects like the case at bar.
    Plaintiff is entitled to a decree perpetually enjoining and restraining the defendant and all persons claiming under him from selling or offering for sale merchandise or from carrying on any business, trade or vocation upon the demised premises without the written consent of the plaintiff, with costs of this action.
    Decreed accordingly.
    • James W. Verbech {M Countryman, of counsel), for app’lt; Charles S. Lester, for resp’t.
   Herrick, J.

—I have examined this case, and it seems to me it . should be affirmed.

There have already been three opinions written in it. On, the merits the opinion of Judges Putnam and Tappan strike me as sufficient The general term opinion was to the propriety of a preliminary injunction and did not reach the merits.

I think the judgment should be affirmed.

Affirmed without opinion.

Mayham, J.

—I concur in the above conclusion.


text:
    In the Matter of the Petition of John Bridgford et al. to Vacate an Assessment.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    1. Municipal cokpobations—Assessments—Albany.
    In the absence of objections during the advertisement for bids or during the progress of the work in pursuance of chap. 298, Laws 1883.' and chap. 242, Laws 1887, the property owners assessed for such work cannot take advantage of any alleged irregularity or defect in the proceedings prior to the acceptance of sucli work by the street commissioner.
    ‘2. Same—Injunction.
    The court has no power, in a proceeding to vacate an assessment, to en- 1 join the collection o£ the assessment, especially where the work has been done and accepted without objection.
    ’3. Same—Pabties.
    In a proceeding to vacate, modify or reduce an assessment, the contractor is a necessary and proper party.
    Appeal from order of special term restraining the city of Albany and its officers from attempting to enforce' and collect an assessment pending the proceeding to vacate it.

      John A. Delehanty, for the city; Alden Chester, for petitioners, resp’ts; Rosendale & Hessberg (Albert Hessberg, of counsel), for contractor ; John T. McDonough (Henry E. Stern, of counsel), for petitioners, resp’ts.
   Mayham, P. J.

—This is an appeal from the order of a special term of this court, restraining and enjoining the city of Albany and its officers from enforcing and .collecting and from attempting to enforce and collect an assessment levied upon the reál estate of petitioners for street improvements in said city.

The ease shows that on the 16th day of September, 1889, a petition was presented to the common council of the city of Albany praying for the passage of a law or ordinance authorizing the excavating, filling, forming and grading of Myrtle avenue in said city from the west line of Lake avenue to the east line of Ontario street; and that in pursuance of such petition the common council did, on the 8th day of November, 1889, pass such law, or ordinance, authorizing such work, two-thirds of all the members elected to the common council voting in favor thereof, and that such law or ordinance was duly approved by the mayor; that thereafter the board of contract and apportionment of the city passed a resolution directing that notice be given that sealed proposals would be received for the performance of the work authorized by such ordinance.

The case also shows that such bids were at the time designated in said notice received, and the contract awarded to one Jacob Holler, on the 13th of January, 1890, and that the cost of the work performed .under such contract amounted in the aggregate to the sum of $8,799.30.

On the 21st of September, 1891', the board of contract and apportionment, by an assessment confirmed on that day, apportioned and assessed the whole of that sum upon and among all the houses and lots and vacant lots intended to be benefited by said work, in proportion to the advantage which each was deemed, by said board, to be benefited thereby, within the district fixed by that board.

On the 8th of October, 1891, the petitioners commenced their proceedings by the service upon the contractor and the corporation counsel of an order to show cause on the 10th of ■ October, 1891, at which time the proceedings were adjourned until the 29th of December, 1891, when an order of reference was entered to take proof and report the same to the court.

On the 29th of January, 1892, no farther steps having in the meantime been taken by the petitioner on such reference, the city chamberlain caused the property of the petitioners, described in the petition and covered by such assessment, to be advertised for sale under the assessment. The petitioners thereupon made a motion at special term of this court, on the sixth day of February, 1892, for an order - restraining the city from selling this property under said assessment until the final hearing and determination of this proceeding, which was granted, and from that order the city ana contractor appeal.

The appellants insist that the petitioners cannot, after the city has proceeded and incurred liabilities under the assessment, not having filed any objection to any of the proceedings, now restrain in this proceeding the collection of this assessment. Section 11 of chapter 242 of the Laws of 1887, which amends § 2 of chapter 298 of the Laws of 1883, provides as follows:

“ If, in the proceedings relative to any assessment or assessments for local improvements in the city of Albany or in the proceedings to collect the same, any fraud dr defect in the work, or substantial error shall be alleged to exist, or have been committed, the party aggrieved thereby may, within twenty days after the confirmation of the assessment and apportionment, apply to have the assessment vacated or reduced, or both, to a judge of the supreme court, at special term or at chambers, or to the county judge, who shall, thereupon, upon due notice to the counsel of the corporation of said city and to the contractor and his sureties, or any other person, if they or either of them be proper parties, proceed forthwith to hear the proofs and allegations of the parties.’'

By § 12 of chap. 242 of the Laws of 1887, § 4 was added to title 11 of chap. 298 of the Laws of 1888, as follows: “ And it is further provided that no assessment that may be hereafter made shall be void or shall be vacated, nor the sale of property therefor be declared illegal, or the deed or certificate of conveyance therefor be adjudged invalid or illegal, or any money paid on account of, or because of said assessment be recovered back or refunded, because of any error, illegality or irregularity in any of the proceedings in relation to the work or improvement for which such assessment is made prior to the commencement of the work, including the letting of the contract for said work, unless some party objecting thereto shall have filed his objection or objections with the clerk of the board of contract and apportionment within ten days after the letting of the contract for said work, stating the error, illegality or irregularity complained of, together with his address.”

This section then provides for a hearing before the board of contract and apportionment and that their decision shall be final., unless proceedings are instituted within ten days after the filing of said decision to review such decision. Section 1 of title 11 of chap. 298 of the Laws of 1883 provides that “No assessment that may hereafter be levied shall be void or shall be vacated by any court because of a failure on the part of the contractor to comply in the execution of the work with all of the requirements of law or of the contract in respect thereto,” unless during the progress of the work an affidavit stating what the defects are shall be filed with the clerk of the board of contract and apportionment.

No such affidavit as is contemplated by this section seems to have been filed, and, therefore, the court cannot in these proceedings pass upon the manner of the performance of the. contract by the contractor, as questions upon that subject can only be raised in the manner pointed out by § 1 of title 11 of chap. 298 of the Laws of 1883.

The undisputed evidence shows that neither during the advertisement for proposals for the letting of the contract for the performance of the work, nor at the time of awarding of the contract, and making of the same, nor at any time during the performance of the work done thereunder, nor until after the same was accepted by the street commissioner, was any objection made by or on behalf of the petitioners, or any other person, as to any of the steps or proceedings taken by the city authorities, and under the provisions of the acts of 1883 and 1887, above quoted, and the petitioners cannot, without having complied with the provisions of those acts, take advantage of any alleged irregularity •or defect in the proceedings prior to the acceptance of such work •by the street commissioner.

The only question left for consideration on this motion is •whether the court can restrain the collection of this tax after all the liabilities have been incurred without objection, and the tax to meet such liabilities has been assessed by the proper authorities, and is in process of collection?

It is clear that an ordinary action to restrain the collection of this tax would not lie. But the legislature has provided a proceeding under which the right of the parties may be effectually preserved, provided the persons aggrieved proceed promptly and in accordance with the statutory requirements ; and public policy requires that they should seek redress under the statute, or be remediless.

The petitioners having neglected to file the statutory objections to the making of the contract and the performance by the contractor, the remaining question for discussion on this appeal is as to the regularity and legality of the assessments for payment of this work. Has the court the power under' the charter, by virtue of which this municipality assumes to levy this tax, to restrain the city from the collection of the same pending these proceedings ? ^

If such power exists, it must be found in the statute, either by virtue of its direct provisions, or by fair implication from its provisions. Section 3 of title 11 of chapter 298 of the Laws of 1883 provides as follows: “And hereafter no suit or action in the nature of "a bill in equity, or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made * * * Owners of property shall hereafter, in proceedings to reduce, vacate or stay payments of assessment, be confined to the form of proceedings in this title mentioned.”

This provision of n the statute is almost identical with chap. 410 of the Laws of 1882, known as the “ Hew York Consolidation Act,” and the question of the power of the court under that act to stay proceedings on an assessment until the final determination of an action, prosecuted to test the validity of an assessment levied for street improvements, was denied. Sixth Ave. R. R. Co. v. Mayor, etc., of the City of New York, 43 St. Rep., 759. In this case, this court at general term in the first department uses this language: “There would be ordinarily jurisdiction to restrain the sale of the plaintiff’s property under an illegal assessment, and to prevent the creating of a cloud upon the title. Section 897 of the Consolidation Act, however, expressly provides that *Ho suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of an assessment in' said city, or to remove a cloud upon title, but owners of property shall be confined to their remedies in such cases to the proceedings under this title.’ This provision was held in Mayer v. Mayor, etc., 101 N. Y., 284 * * * to be unqualified and to apply to every class of assessments.

By that section, therefore, the power of this court to grant injunctions in cases of this character was absolutely taken away, and although the' plaintiff may on its papers make out a case which in the absence of that section would entitle it to relief, we are of opinion that the plain provisions of the Consolidation Act. requires us to hold that this action cannot be maintained.”

It is truejthat the action from which we have quoted was an ordinary suit in equity to obtain a perpetual injunction, and such action was clearly prohibited by the section of the statute quoted in the opinion.

But it will be observed that the statute which furnishes this, special proceeding, and tabes away the power of the court to entertain an ordinary action in equity for the relief demanded by the petitioners, makes no direct provision for an ad interim stay pending the prosecution of this statutory remedy.

It is true that the section which prohibits a suit in equity provides that “ owners of property shall hereafter in proceedings to reduce, or vacate or stay payment of assessments, be confined to the forms of proceedings in this title mentioned.” But the stay provided for in this paragraph is not described as an intermediate stay tending to obstruct the progress of the municipal authorities before final judgment in favor,of the petitioner in the proceedings, but is placed in the same category with the reduction or vacation of assessments, the result of the final determination of this proceeding. Is it not, therefore, clear that the words “ stay of proceedings,” used in the statute, relate to an intermediate stay, and that language of the statute held to relate to the final order or judgment is more in harmony with 'the general theory of the law relating to the taxing power, than it would be if held to relate to an ad interim stay.

The general policy of the law is to enable taxing officers tó proceed without obstruction when they have acquired jurisdiction of the person and subject-matter, and their acts are not assailed for fraud in the collection of the revenues necessary for the administration of public affairs.

In R., W. & O. R. R. Co. v. Smith, 39 Hun, 332, Van Brunt, J., in delivering the opinion of the court says: “ If they (the plaintiffs) are cpmpelled to pay this tax, and it should be finally adjudged under the proceedings now pending (which was a certiorari) to be erroneous, ample means of restitution are provided by the statute. Public policy requires that the collection of taxes adjudged by the proper authorities to be necessary for the maintenance of local or state government should not be prevented or interfered with, by injunction suit in equity to test the legality of the assessment, when there is any other possible redress. In this case other legal redress exists, and proceedings have been instituted to enforce it.” While this opinion was pronounced in a case where the payment of a tax was sought to be restrained pending a proceeding by certiorari under chapter 269 of the Laws of 1880, it would seem to apply with equal reason to the case at bar. Hnder that statute it was provided that a writ of certiorari should not operate as a stay of proceedings, or stay the payment of the assessment. It is true that no express prohibition against a, stay is found in .the Albany charter; it is also true that while by that statute the court is shorn of its ordinary equitable powers, it is not clothed with any express power to grant the stay asked for on this proceeding.

But the learned counsel for the petitioner invokes the exercise •of equitable powers by this court to grant a stay in these proceedings, although its power as a court of equity to entertain a proceeding by injunction are suspended by the provisions of the charter.

This we think would be an evasion of the spirit if not a violation of the letter of the statute. It can hardly be maintained that while the legislature for a wise purpose took away from parties aggrieved the right to the protection which an equitable action by injunction is presumed to afford, it at the same time left with the court the right to grant by order of injunction the stay denied by action.

But if we treat this order as an injunction order to be granted in the exercise of the equitable powers of the court, we must then apply to this case the ordinary rules for invoking,equitable jurisdiction, and no rule in equity is more familiar than that a court of equity will not interfere when a party has an adequate remedy at law.

It can hardly be urged that the collection of this tax will result in an irreparable injury to the petitioner.

If the tax is illegal and improperly assessed, payment under ■the compulsory process of the chamberlain will be involuntary or •coerced payment, and the tax can be recovered back. Peyser v. The Mayor of New York, 70 N. Y., 497; Bruecher v. Port Chester, 101 id, 240; 48 id, 516; 25 id., 312; 121 id., 246; 30 St. Rep., 928.

If it be held finally that the petitioners by reason of loches in making objections have waived their right to redress, then within two years after the sale xof the property the petitioners may tender the bid and interest and redeem the property from the forfeiture of the sale. Mor do we see that the petition discloses in what way this proceeding and injunction will prevent a multiplicity of .suits.

It is not alleged that the numerous parties contemplate bringing actions at law, or in any other manner intend to prosecute actions against the city for, or on account of these assessments. Bonton v. Brooklyn, 15 Barb., 387; Blake v. Brooklyn, 26 id., 301; Heywood v. Buffalo, 14 N. Y., 541; Penn Coal v. D. & H. C. Co., 31 id., 99.

But if this were otherwise it would not justify the granting of an injunction when that proceeding is, as we have seen, forbidden by the statute. The petitioner urges that the granting of a temporary injunction is a matter resting in the discretion of the court, and that the court having at special term exercised that discretion, this court should not interfere. But this rule does not apply when it appears, as in this case, that an injunction is prohibited by statute, and that no final injunction can in any event be granted in the proceeding. Strasser v. Moonelis, 108 N. Y., 611; 13 St. Rep., 890.

But if an injunction could'in a proper case issue to restrain the-collection of a tax of this character, we think that the allegation in the petition is insufficient to raise any legal presumption against, the validity of this tax, to justify the granting of an injunction in this case, when the work has been done and accepted without-objection on the part of the petitioners, especially when all of the material facts are put in issue by the answering affidavits on the part of the defendant.

We are also of the opinion that the contractor whose interests-were to be affected by these proceedings was a necessary and proper party to the record.

He could look only to this assessment and thercolIection of this tax for his compensation, and when it was proposed to cut off his source of supply he had a right to be in court to defend his interest

The order should be reversed and the temporary injunction-vacated, with costs.

Putnam, J., concurs; Herrick, J., not acting.


text:
    In the Matter of the Petition of Wilbur Alexander et al., to Vacate an Assessment.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    Appeal from order restraining the chamberlain of the city of Albany from selling lands of petitioners for the purpose of collecting an assessment for an alleged street improvement in Myrtle avenue in said city.

      John A. Delehanty, for the city ; Alden Chester, for petitioners, resp’ts; Rosendale & Hessberg (Albert Hessberg, of counsel), for contractor; John T. McDonough (Henry E. Stern, of counsel), for petitioners, resp’ts.
   Mayham, P. J.

—This is an appeal from an order restraining- and enjoining the chamberlain of the city of Albany from selling-the lands of the petitioners, for the purpose of collecting an assessment for alleged street improvements in said city. The proceedings are in all essential particulars' like the proceedings in the matter of the petition of Bridgford decided at this term, and we see no-reason for an extended discussion of the same, but think it must, be disposed, of upon the opinion written in that case.

Order reversed, with costs to the defendant

Putnam, J., concurs.


author: Herrick, J.

text:
    Nellie Ramsay, Pl’ff, v. John A. De Remer, Def’t.

      (Supreme Court, General Term, Third Department,

      Filed September 14, 1892.)

    Will—Trust.
    By a codicil to his will, one R. revoked the provisions of his will in favor of plaintiff's father, and "bequeathed the same to trustees m trust for his “ dear little granddaughter,'' the plaintiff, “to he used especially for her interests, and in case she should die without issue then all such property and interests are to be equally divided among my living children or their heirs.” The other children of testator executed quitclaim deeds to plaintiff, who contracted to sell a portion of the property to defendant and tendered a deed executed by berself aud the trustees. Held, that the trust was void under 1 R. S., 728, § 49, and the trustees took no title thereunder; that the fee passed to plaintiff subject only to being defeated by her dying without issue; that all the persons who would have been entitled to immediate possession of the property, had plaintiff then died without issue, having joined in giving deed of such property to her, she became the owner of the expectant estates and vested with the complete title and one which she could convey by deed, and that the title offered was sufficient and that defendant should be required to complete the purchase.
    Submission of controversy without action.
    The defendant agreed by instrument in writing to purchase /rom plaintiff a certain lot of land in the city of Schenectady, plaintiff covenanting to give a good and sufficient deed of conveyance. In accordance with this agreement, plaintiff presented to defendant a deed duly executed by herself and her two trustees, which the defendant declined to receive, claiming that the deed did not convey a good title. Plaintiff claimed title under the will of her grandfather and quit claim deeds from all of testator’s children and the wives of his married sons. The following are the provisions of the will:
    11 And all the property and interests originally intended to be bequeathed to my son Wilfred, I now revoke and nullify and bequeath the same to my son Henry Eamsay, Jr., and my daughter Isabelle Eamsay, in trust for my dear little granddaughter Nellie Eamsay, daughter of my son Wilfred, to be used especially for her interests, and in case she should die without issue, then all such property and interests are to be equally divided among my living children, or their heirs.” The property in question is included in the foregoing devise.

      S. W. Jackson, for pl’ff; De Remer & Angle (Edwin C. Angle, of counsel), for def’t.
   Herrick, J.

—The trust intended to be created for the benefit of the plaintiff, Nellie Eamsay, was void, and the trustees took no title thereunder.

“ Every disposition of lands, whether by deed or devise, hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for, such person, and if made to one or more persons, to the use of, or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee.” 1 R. S., 728, § 49; Birdseye Stat., 3177, § 5.

Here the words of the devise are “ in trust for my granddaughter, Nellie Ramsay, to he used especially for her benefit.” It seems to me to come clearly within the meaning and intent of the statute. Rawson v. Lampman, 5 N. Y., 456; Fisher v. Hall, 41 id., 416; Syracuse S. Bank v. Holden et al., 105 id., 415; 8 St. Rep., 29.

The trust being void, the estate attempted to be created went to the beneficiary. “ Every person who by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, jn law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the-same conditions, as his beneficial interest. 1 R. S., 727, § 47; Birdseye Statute, 3176, § 3, and cases above cited.

Upon the death of the plaintiff, the estate would go to her issue, if she had any. While it is not expressly so "stated in the will, the plain implication is that the testator intended the property in question should be held and enjoyed by the plaintiff and her issue; the provision in the will, in case “ she (plaintiff) should die without issue, then all such property and interests are to be equally divided among my living children or their heirs,” seems to me conclusive that he intended that in case the plaintiff had issue, that such. issue should take such property and interests. And where the intent can be clearly collected from the writing,, it is the duty of the court to give effect to that intent, provided no rule of law is thereby violated; and devises by implication will be upheld where no gift of the property is made in formal language. Masterson v. Townshend, 123 N. Y., 458; 34 St. Rep., 104; Whitney v. Whitney, 43 id., 841-55, and cases cited.

The trust being void, and the estate going to the plaintiff and her children, if she had any, she thus had, in effect, the fee, subject only to being defeated by her dying without issue. Therein ainder provided for, upon the death of the plaintiff without; issue, was a vested remainder, there being persons in being who-would be entitled to the immediate possession of the estate upon her death without issue, 1 R. S., 722, § 13; Birdseye Statute, 2526, § 80; and that remainder could be conveyed by such person, it. being a future expectant estate. 1 R. S., 725, § 35; Birdseye Statute, 2529, § 102; Dodge v. Stevens, 105 N. Y., 585; 8 St. Rep., 671.

It appears from the submitted case that all the persons who-would have been entitled to the immediate possession of the •property in question had the plaintiff died at that time without, isssue joined in giving a deed of such property to the plaintiff y she thus became the owner of the expectant interests theretofore-vested in them, and the complete title to the property centered in her; there was no consequent interest outstanding; she possessed an estate that upon her death would go to her issue, or if she-had none, to her other heirs; this, it seems to me, gives her a perfect title - to the property, one that she could convey by deed. For these reasons, I think, that, under the terms of the submitted case, the deed tendered by the plaintiff to the defendant would convey to him title to the premises therein described in fee simple, free and clear of all liens and incumbrances, and that- in accordance with conditions of the submission the plaintiff is entitled to judgment against the defendant for the sum of seventy-five dollars, with interest from April 1, 1892, with the costs of ¡this action, for’ which let judgment be entered.

Mayham. P. J., concurs; Putnam, J., concurs in result.