author: Bartlett, J.

text:
    The People ex rel. Wayside Home, Pl’ff, v. Board of Supervisors of Kings County, Def’t.

      (Supreme Court, Kings Special Term,

      Filed April 11, 1895.)

    1. Constitutional law — Statutes.
    Section 14, article 8 of the constitution amendments of 1893 operates on existing; statutes and makes permissive payments which were previously mandatory.
    2. Same — Existing bights.
    Claims, which have accrued under a statute before it is abrogated by a constitutional provision, are not affected thereby.
    Action for peremptory mandamus to compel the board of supervisors to pass upon two bills.

      William J. Carr, for relator; George F. Elliott, for resp’ts.
   Bartlett, J.

The revised contitution of this state provides that “payments by counties, cities, towns and villages of charitable, eleemosynary, correctional and reformatory institutions wholly or partly under private control, for care, support and maintenance, may be authorized but shall not be required by the legislature.” Article 8, § 14. This provision went into effect on the 1st day of January, 1895. The Wayside Home is a reformatory institution, under private control, in the city of Brooklyn, to which magistrates are authorized to commit certain classes of females. Under the statute, it is made the duty of the county treasurer of Kings county to pay to the managers $110 a year, or a less sum, at that rate, for the time any inmate may remain in the institution, for her support and maintenance. Laws 1892, chap. 439, § 4. The language of the act is mandatory,'the word “shall” being used. There is a provision, however, that the charge for support and maintenence must first be passed upon by the board of supervisors, in manner provided by law for the payment of county accounts. This means that the board is to ascertain the correctness of the bill, so far as the number of inmates is concerned, and the time of their stay. These facts being established, the rate of compensation is fixed, by .the terms of the statute itself, at $110 per annum. The Wayside Home has presented to the board of supervisors two bills, which they have refused to audit. One is a bill for the quarter ending December 31, 1894. The other is a bill for the quarter ending March 31, 1895. The present proceeding is an application for a peremptory writ of mandamus to compel the board to pass upon both.

As to the first bill, I think there can be no doubt that the relator is entitled to have it audited. The claim accrued wholly before the revised constitution went into effect. There is nothing in the provision which has been quoted from section 14 of article 8 to indicate that it was designed to operate retroactively, and in the absence of such indication the rule is the other way. Cooley, Const. Lim. (6th ed.) p. 77.

A more serious question arises as to the second bill, which is for support and maintenance furnished and afforded since the revised constitution took effect. Does the provision of section 14 in article 8 relate only to future legislation, or does it act upon existing statutes, so as to modify or repeal them, as far as they are at variance with its requirements? ' If the provision relates only to future legislation, it leaves in full force the act of 1892, which not only authorizes, but requires, Kings county to pay for the support and maintenance of inmates of the W ayside Home. On the other hand, if this constitutional provision operates directly upon existing statutes, its effect is to modify the act of 1892 by striking out the command that the county shall pay, but leaving still in force the authorization to pay if the county see fit to do so. I am satisfied that the latter view'is the correct one. It is plain that a portion of section 14, was intended, not merely as a restriction on subsequent lawmaking, but as a prohibition which should affect action to be taken under existing laws. This is true of thesentence which immediately follows the provision under consideration here, arid- which sentence is in these words: “ Ho such payments shall be made for any inmate of such institu tian who is not received and retained therein, pursuant to rules established by the state board of charties.’’ Here we have a command which indicates an intention to establish a new rule which should be appli-_ cable at once to all payments to be made after the constitution went into effect, whether under laws already on the statute book, or laws thereafter to be enacted. Viewing both sentences together, I think the same intent is manifest in the language of the preceding provision, which declares that payments of this kind may be ■authorized but shall not be required. The purpose seems to have been to provide that after January 1, 1895, payments by municipalities for the support of the inmates of charitable and reformatory institutions, not wholly public, should under no circumstances be compellable, but should be permissible, provided the inmates were received and retained under the rules of the state board of •charities.

I think the case at bar is distinguishable from the decisions cited by the learned counsel for the relator in support of his contention that the provision in question here was not designed to affect anything but the future action of the legislature. The South Dakota case of Cutting v. Taylor, 51 N. W. 949, arose out of a territorial statute authorizing certain payments by the territory to cities for the benefit of certain fire companies. When the state government came into existence, the territorial laws continued in force, so far as they were not repugnant to the state consitution. That .constitution declared that the state should not make donations to or in aid of any individual, association, or corporation. It also contained provisions as to the manner in which appropriation bills should be passed. The state auditor,"in resisting an attempt to enforce payment under the statute, insisted that such payment was a donation contrary to the constitution; and the opinion of the court shows that it would have been so held, were-it not that the statutory offer, and the subsequent action of the firemen, constituted a contract by which the state was bound. Another objection that the statute was not passed as the constitution required appropriation bills to be passed, was properly pronounced untenable, as constitutional provisions relative to the form and method in which appropriation bills should be passed refer solely to legislative action in the future. In the case of People v. Gardner, 45 N. Y. 812, it was held that the limitation of seventy years, applicable to judges elected under the judiciary article of the constitution, which went into effect January 1, 1870, did not apply to a county judge chosen for a term of four years at the preceding general election. This was not because of any general rule forbidding the application of a constitutional provision to an existing state of things, and limiting its operation to a state of things to arise thereafter, but because the court perceived that the limit of age was appropriate to the lengthened terms of judicial service only, and inferred that the convention which formed the judiciary article did not intend that it should abridge the shorter terms of judges previously elected. In Re Gilbert Elevated Ry. Co., 70 N. Y. 361, and the case of People v. Brooklyn, F. & C. I. Ry. Co., 89 N. Y. 75, it is no doubt plainly declared that the constitutional amendments of 1875 relative to the construction of street railroads refer solely to future legislation, and not to previously existing laws. But the language of the constitution there under consideration was clearly in future, and was not immediately coupled with provisions necessarily operating upon statutes in force at the time of the adoption, as is the case here. The whole scope of the section involved in those cases was “to dictate to the lawmaking power what it may or may not do thereafter, what bills it may pass, and what it shall not, and not at all to affect or act upon past legislation, which at the time was entirely lawful.’’ Here, I think, the scope of section 14 of article 8 of the revised constitution is to put an end to the compulsory municipal maintenance of the inmates of private charitable and reformatory institutions, but to allow its continuance, at the legislative will, with the consent of the municipalities concerned. The last case on the relator’s brief which it seems necessary to discuss is Allbyer v. State, 10 Ohio St. 588. The constitution of Ohio provides that all laws of a general nature should have a uniform operation throughout the state, and also contains a declaration that all laws not inconsistent therewith should continue in force until amended or repealed. The plaintiff was convicted under a statute enacted before the constitution, and applicable to one county only. The question presented was whether that statute could be upheld, as against the constitutional requirement of uniformity in the operation of laws of a general nature; but the supreme court held that this requirement related to future legislation only, inasmuch as any other construction would result in setting aside most of the special laws of the state. No such serious or other ovil consequence is involved in the interpretation now put upon the constitutional provision which is before us in the case at bar.

The conclusion is that section 14 of article 8 of the revised constitution acts directly upon existing laws of the same character as the statute which provides for payments by Kings county to the Wayside Horne. It does not repeal those laws, except as to this extent: the command to pay is charged into a permission to pay, always provided that the inmates of the institution are received and retained under rules prescribed by the state board of charities. In the present proceeding that it was stated and conceded upon the oral argument that the inmates of the Wayside Home are received and retained under such rules. As to the bill, therefore, which has accrued for their support and maintenance since the revised constitution went into effect, the county, through the board of supervisors, has the power, under the act of 1892, as modified by the constitution, to audit it, and direct its payment by the county treasurer. The county, however, cannot be compelled to pay it. The matter is left to the discretion of the board of supervisors, to be exercised for the best interests of the county. But upon the earlier claim, for support and maintenance furnished prior to January 1, 1895, the revised constitution has no effect, and the relator is entitled to a peremptory writ of mandamus directing the board of supervisors to pass upon it.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Little J. Earle, Pl’ff, v. George H. Robinson et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    Sale — Conditional—Retaking property.
    The vendor, upon a conditional sale of goods, cannot, after retaking the goods on default in the payment of notes given for the purchase price, sue on the notes or enforce a mortgage given to secure them.
    Action to enforce a chattel mortgage.

      A. J. Dittenhoefer, David Gerber, and I. M. Dittenhoefer, for pl’ff; George M. Pinney, Jr., for def’ts.
   Ingraham, J.

The one question that I have to determine is whether the defendant Robinson, as trustee, has now the right to enforce the chattel mortgage, described in the complaint. It is conceded by the plaintiff that the chattel mortgage is valid to secure the payment of the notes to the Gorham Manufacturing Company, but, as there has been no default in the payment of any of those notes, Robinson, as trustee for the Gorham Manufacturing Company, is not entitled to enforce this mortgage. The mortgage is also given to secure certain notes made by the mortgagor to the Phoenix Furniture Company and to W. & J. Sloane. It is conceded that those notes have not been paid, and that some of them are past d ue. The only question is whether or not those notes are existing obligations of the mortgagor, that the mortgagees are entitled to enforce against him, and so against the mortgaged property.

The original transaction, as between the mortgagor and the Phoenix Furniture Company, was an executory contract for the sale of certain furniture to the mortgagor, who was about to open an hotel in the city of New York. By that contract, dated the 1st of June, 1898, the Phoenix Furniture Company, in consideration of the sum of $180,922.59, agreed to sell and deliver to Earle, the mortgagor, certain goods and chattels ; and Earle agreed to purchase from said Phoenix Furniture Company said goods and chattels, and to pay to them the said sum in four payments, the first-one of which was due a year from the date of the agreement. The agreement then provided that the said goods were in the hotel kept by the mortgagor, and were to be kept by him in said hotel, “upon the distinct understanding and agreement that the title to the same does not pass to him, but remains, and shall remain, in the said party of the first part (Phoenix Furniture Company) until said party of the second part (Earle) shall have fully paid the aforesaid installment payments; * * * and in case of default in the payment of the same, or any part thereof, as the same shall become due, the said party of the first part may take all of the said property into its own possession, and remove it from the building. And inasmuch as said property cannot be resold as new furniture, if taken by the party of the first part under and in pursuance of this clause of this contract, and will have been depreciated by use, the party of the second part hereby agrees, for the purpose of compensating the party of the first part in such an event, that all payments made on the contract prior to the. time the property is so taken may be retained by the party of the first part.” As to the goods sold by the defendants W. & J. Sloane, they were billed to Earle ; he giving notes to the order of W. & J. Sloane, the first note being due December 1, 1893, and at the same time signing the following statement: “It is hereby agreed that these goods described as above are the property of, and belong to, W. & J. Sloane, until paid for in full. Ferdinand P„ Earle.” One of the notes to the Sloanes being due on the 1st day of December, 1893, and one to the Gorham Manufacturing Com-. pony being also due upon the same day, Earle was unable to pay them. There was nothing due, however, at this time, to the Phoenix Company ; their first payment coming due on the 1st day of June, 1894. Earle, however, being unable to pay the notes to Sloane and the Gorham Manufacturing Company, made an agreement under which the chattel mortgage in suit was given, that agreement being recited in full in the said chattel mortgage. That chattel mortgage is dated January 2, 1894, and recites the indebtedness of Earle to the Gorham Manufacturing Company, to W. & J. Sloane, and to the Phoenix Furniture Company; also recites a proposition to his three creditors, asking for an extension of the time of payment of his indebtedness to them, an acceptance by the creditors of the proposition, a statement of. the ownership of the lease of Hotel Normandie, and of the furniture and fixtures therein; and then provided that the said Earle, for “better and further securing the payment of said sums of money owing by him to the said corporations and each of them, evidenced by said promissoiy notes mentioned and described in said ‘Schedule A/ hereto annexed, and in consideration of the extension of time of payment given to him by said corporations, and each of them, * * * hath bargained and sold, and by these presents doth grant, bargain, and sell, unto the party of the second part, all and singular, the household or hotel goods,” etc., in the Hotel Normandie, together with the lease, etc., “to have and to hold the same unto the said party of the second part, for the better and further securing the payment of said sums of money evidenced by said promissory notes, owing by the party of the first part to said corporations, and each of them.” The said mortgage also contained' provisions for the selling of the mortgaged property by private sale; that the mortgage should be void in case of the payment of the notes; and that until default was made in the payment of said promissory notes, or any of them, the party of the first part is to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. The interest of Earle, the mortgagor, in the mortgaged property, subsequently became vested in the plaintiff, subject to the mortgage.

If these notes of Earle are valid and subsisting claims against him, then it is clear that Robinson has a right to enforce this mortgage; If, however, they are not subsisting claims against Earle,' then it is also clear that Robinson has no right to enforce the mortgage. Generally speaking, whatever- extinguishes the mortgage debt extinguishes the mortgage. > Hence the payment and acceptance of the amount secured by the chattel mortgage, whether before or after breach of condition, discharges the lien of the mortgage, and a mortgage given by a principal debtor to his sureties to protect them against their suretyship is discharged by the creditors discharging the sureties. See 3 Am. & Eng. Enc. Law, p. 201. See, also, Charter v. Stevens, 3 Denio, 35, where it was held that where default had been made in the payment of a chattel mortgage, and the mortgagee entered into possession, and proceeded to sell, under the authority contained in the mortgage, as soon as he had sold enough property to satisfy the amount due and unpaid, the end and object of the mortgage had thus been fully attained, and the mortgagee had no longer any right to the property which remained unsold, or to sell it under the mortgage. If, therefore, the action of the creditors to secure whose debts this mortgage was given released Earle from the obligation to pay the notes held by them, the mortgage was discharged, and could not be enforced to pay the notes. This must depend upon just what relation existed between the Phoenix Company, Sloane, and Earle at the time the mortgage was given, and the subsequent acts of the creditors after a default in the payment of the note to secure which the mortgage was given. Earle had agreed to purchase the property. The contract was not in praesenti; but was executory. He gave his notes for the amount of money that he had agreed to pay for the property, payable at a future date. The consideration for these notes was the agreement of the vendors to vest the title of the property in Earle upon the payment of the contract price, and. undoubtedly created an existing obligation On the part of Earle to pay them the amount he had agreed to pay at the time fixed for payment, as the consideration for the property. At the same time the vendors had delivered the possession of the property that they had agreed to sell, and Earle had agreed to purchase, to Earle, but accompanying that delivery there was an express agreement between the parties that the title should not pass to Earle until the consideration was paid. Earle had the possession of the property; he had agreed to purchase it; but the title still remained in the vendor, and it was not to be divested until Earle had paid the purchase price. In an executory contract of sale the right of the vendor to sue for the price agreed to be paid for the goods appears to depend upon the vesting of the title to the goods in the vendee. It is stated in Benjamin on Sales (section 758):

“ When the vendor has not transferred to the buyer the property in the goods which are the subject of the contract, as has been explained in Book 2, as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery, the breach by the buyer of his promise to accept and pay can only affect the vendor by way of damages. The goods are still his. He may resell, or not, at his pleasure. But his only action against the buyer is for damages for nonacceptance. He can, in general, only recover the damages he has sustained, not the full price of the goods. The law, with the reason for it, was thus stated by Tindal, 0. J., in delivering the opinion of the exchequer chamber in Barrow v. Arnaud: ‘ Where a contract to deliver goods at a certain price is broken, the proper measure of damages, in general, is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser, having the money in his hands, may go into the market and buy. So, if a contract to accept and pay for goods is broken, the same rule may be properly applied, for the seller may take his goods into the market, and obtain the current price for them.”

But the parties may agree that the money shall be paid before the title to the goods passes, in which case the vendee may maintain the action without delivery of the goods. In section 762 the learned author says:

“Although, in general, the vendor’s recovery in damages is limited to the difference between the price fixed in the contract and the market value on the day appointed for delivery — according to the rule as stated by Parke, B., in Laird v. Pint, that ‘‘a party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with, and cannot be sold again,’— there may be special terms agreed on, in conflict with this rule. A vendor may well say to a buyer, 11 want the money on such a day, and I will not sell unless you agree to give me the money on that day, whether you are ready, or not, to accept the goods;7 and, if these terms be accepted, the vendor may recover the whole price of good the property of which remains vested in himself. In such a case the buyer would be driven to his cross action if the vendor, after receiving the price, should refuse delivery of the goods.”

In this case the parties did agree that part of the consideration should be paid before the title passed,'as the title was not to vest in Earle until he paid the full consideration ; but still, in order to entitle the vendor to sue for and recover the consideration to be paid for the goods sold, they must do no act that would prevent their compliance with their contract, viz. to vest the title of the good in Earle upon his payment of the purchase price. Their right to recover any damages sustained by reason of a breach of the contract by Earle was not affected by a disposition of the property before the commencement of such a suit. It was only the right to recover under the contract, and for. a breach of the contract. Therefore I do not think the rights of the parties were changed by the delivery of the property sold to Earle. Earle’s obligation to the defendants was not different from what it would have been had the vendors’ retained possession of the property, and held it until Earle paid these notes. In" either case the vendor would have owned the property, Earle having an executory agreement by which he was to become the owner upon payment of his notes. When those notes became due, the vendors had the same right that any vendor has, who has agreed to sell property to a vendee, where the vendee refuses to accept or pay for it. Upon refusal of the vendee to accept, and pay the contract price, the vendor may sue for the difference between the contract price and the actual value of the property, in which case he elects to retain the property as his own, or he may tender the goods sold, and then recover the contract price, in which case he holds the property as trustee for the vendee, and is bound to deliver it whenever demanded, upon receiving payment of the contract price; but in this latter case the vendor’s right to sue depended upon the tender to the vendee, having vested the title in the vendee. See Hayden v. Demets, 53 N. Y. 430. See, also, Van Brocklen v. Smeallie, 140 N. Y. 75; 55 St. Rep. 263. It seems to me that it is this position in which the creditors were placed when Earle defaulted-in the payment of his notes. They could tender the property to Earle, and, holding it as trustee for him, sue him on his notes that he had given, or they could elect to hold it as their own, and sue for damages for his breach of the contract, either first selling it, and holding him for the balance, or taking the property as their own, and recovering from him the difference between the contract price and its value. They did not have, however, both remedies. They could not sue for the contract price, and at the same time sell the property, or treat if as their own. And Earle’s liability upon ¿ the notes that he had given as the consideration that he was to pay for the property depended upon whether or not the creditors elected to hold Earle liable on the notes for the contract price, holding the property for him, or to hold him liable for the damages that they sustained by his breach of the contract The agreement gave the vendors no right to sell, and apply the proceeds upon Earle’s notes, Earle to be liable for any deficiency; and it cannot be said that the vendors had á lien upon the goods, for, by the express terms of the contract, they were the owners. They had relinquished the possession so long as Earle was not in default, but that did not affect the title. Thus, by the contract, the title never vested in Earle, but remainder in the vendors. The only consideration for the notes, therefore, was the vendors’ promise to vest the title of the property in Earle upon his payment of the notes, and the agreement that Earle should have the possession of the property, and be entitled to its use, during the time for which credit was given. Upon his default in the payment of the notes, that right of possession ended; and the vendors were entitled to retake possession from Earle, and that right they exercised. The position, then, was the same as if they had retained the possession, and Earle had agreed to pay to them, at a certain time, the purchase price, and, upon that payment, be entitled to the possession and title to the property. And then it was that the vendors were put to their election as to the remedy which they would adopt. Both the furniture company and W. & J. Sloane made their election as to which position they would take. Immediately after the failure of Earle to pay these notes, on April 6, 1894, a letter was written by both the Phoenix Company and the Sloanes, by which they notified Earle that, in consequence of his failure to pay the note due April 5th, they had taken possession of the property conditionally sold and delivered to him, and which had been left by him in the Hotel Hew Hetherlands, and continuing, “We further notify you that we shall in due course, and within the time allowed by law, sell all of said property so retaken by us for the best price we can obtain, and give you credit for the proceeds of such sale.” , And they followed this notice up by a sale of the property covered by the contract between these vendors and Earle to a third party, without notice to Earle, by a bill of sale which covenanted that the vendors “ were the sole and exclusive owners thereof, free from any demand or' claim on the part of any person or persons whomsoever, and that neither the said Ferdinand P. Earle, or any person, has any interest in said furniture,” and with a warranty of title; thus putting it out of their power to comply with the contract and give Earle title to the property, the title to which was the only consideration for the notes to secure which the mortgage was given. It seems to me clear that this is inconsistent with any claim against Earle upon the notes, and at once released him from any obligation to pay them. Earle was liable to the vendors for a breach of his contract to purchase the articles which he had agreed to purchase, and for the damages they had sustained in consequence of his breach of his contract. He was not liable for the notes given by him as the purchase price of the property, the consideration for which was to be the title to" the property. The case of Brewer v. Ford, 54 Hun, 116 ; 26 St. Rep. 888, does not at all conflict with this view. All that was held in that case was that the vendor might retain possession of the property, and at the same time enforce the agreement to pay the purchase price ; and the argument of the learned judge writing the prevailing opinion (page 121, 54 Hun,) is entirely in line with the view before expressed. If these vendors had simply rested upon the position that, in consequence of the failure of Earle to pay his notes, they were entitled to retake possession of the goods, and hold them as the trustee of the vendee, I can see no reason why they should not have had the right to enforce the notes of the vendee, and to-en force any security that he had given to secure their payment. But when they undertook to treat the property as their own, sell it as their own, and receive the consideration for such new sale, they then elected to treat the contract of sale as broken, and the only right of action remaining to them was an action for damages against the vendee for his breach of the contract. It follows that the Phoenix Furniture Company and the W. & J. Sloone Company have no right to enforce, as against Earle, the notes given as the contract price of the goods that he had agreed to purchase; and, as the mortgage was given only to secure the payment of those notes, the defendant Robinson has no right to enforce that mortgage for the purpose of paying those notes. Judgment is therefore directed for the plaintiff, with costs.


author: Goff, R.

text:
    The People, Pl’ff, v. Maurice V. Freund, Def’t.

      (Court of General Sessions, New York County,

      Filed May, 1895.)

    Recorder — Powers of.
    The recorder of the city of New York has power to advise the grand jury of the court of general sessionssnot to consider a charge until termination of examination'before him.
    Motion by 'defendant that the recorder advise the grand jury not to examine atay charge against defendant while an examination was pending before him.

      John É. Fellows, Dist. Atty., and Jdhn F. Lewis, Asst. Dist. Atty., for the People ; Maurice Meger and Abraham Levy, for def’t.
   Goff, R.

I give the expression of opinion as recorder of this court, based upon knowledge derived while sitting here as recorder and acting in the capacity of magistrate in issuing warrants, and also as a magistrate on the arraignment of the accused, that in the interest of justice to the defendant, as well as to the people, in my opinion it would be improper to submit any question to the grand jury until after the examination. In view of the statement of the district attorney, I am inclined to believe that the interest of justice will be subserved by increasing the defendant’s bail to $5,000. Does the district attorney see fit now to assure the court that the office will act upon the suggestion of the court ?

The court disagrees with the learned district attorney in the proposition that he has no power. The court will exercise the power that it believes it is invested with to see that oppression or injustice is not meted out to any one. If. the learned district attorney acts upon the suggestion I am making, I will require the defendant to furnish additional bail in the sum of $5,000, and I repeat my suggestion that no matter relating to the offense charged against this defendant be submitted to the grand jury until after the examination before the recorder as magistrate. If the district attorney does not see proper, in the exercise of his official discretion, to act upon that suggestion, you prepare a proper affidavit, and submit it to me this afternoon, and I will take such action as I think proper. I wish the district attorney to understand the position of the court on this question of power. Ordinarily, the position of the district attorney is correct; but in the exercise of the discretion invested in the court, as being adviser in the first place of the grand jury, while the district attorney is the legal adviser, yet the court, of which the grand jury is a constituent part, is primarily the adviser of the grand jury; and in the interests of justice, and if it appears to the court that probable oppression would result from the action of the grand jury, the court, acting as a part of that institution, can advise the grand jury in any given case, and the court will assume that power to advise the grand jury in this case.


author: Bischoff, J.

text:
    Frank S. Baker, Resp’t, v. James R. Thomas, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Broker — Commissions.
    A broker is not entitled to commissions by reason of the fact that he first brought the parties together, if without result, though the sale is after-wards effected through another broker.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Sidney H. Stuart, for app’lt; Alexander Lehman and L. A. Gould, for resp’t.
   Bischoff, J.

This action was brought to recover commissions alleged to been earned by plaintiff upon a sale of certain real property of the defendant. The plaintiff’s employment by the defendant as broker to effect a sale sufficiently appears from the record, but the evidence fails to support the essential fact that he was procuring cause of the sale which actually took place, and the appellant’s exceptions to the denial of his motion for a dismissal of the complaint, or the direction of a verdict, present error for which the judgment must be reversed. The facts, as shown in behalf of the plaintiff, were that by the terms of a letter received from the defendant’s general agent, Simonson, he was instructed to find a purchaser of the property at the price of $40,000, in pursuance of which instruction he introduced one Flahive, who was not, however, willing to pay the sum required. Simonson then offered to accept $38,000, and Flahive stated that he would consider the offer, and “let them know.”

Subsequently plaintiff again brought these parties together, but, according to his testimony, “ nothing took place then, except that he thought to get it less, but could not; that is all that took place. There was no other meeting, — none with me.” Again he testified.

“ I do not recollect that I heard anything further from Mr. Fla-hive, but finally he came into my office, or I met him upon the street. I saw him somewhere afterwards, and he told me that he had decided to take the house, but through another broker, who had finished the negotiations."

The property was purchased byFlahive at the price of $38,000, some two months after the last meeting between plaintiff and Simonson, as mentioned above, and, according to disinterested and uncontradicted testimony given on behalf of defendant, through another broker. The fact that the price finally agreed upon by the parties to a sale is less than that which the broker was instructed to secure does not affect the latter’s right to his commissions, where he is instrumental in bringing the vendor and purchaser together, and the negotiations thus opened continue uninterruptedly to a culmination, Gold v. Serrell, 6 Misc. Rep. 136; 55 St. Rep. 696; Levy v. Ooogan, 30 St. Rep. 553, but the right to commissions depends upon the performance of the obligation assumed as a condition to that right, which is to bring the buyer and seller to an agreement, Sibbald v. Iron Co., 83 N. Y. 381. and, failing this, the fact that a sale is subsequently made to the identical individual whom the broker had introduced is not of significance, except in a case where bad faith upon the part of the vendor may be shown (case last cited), which element was absent in the present case. The evidence before us discloses no agreement between the buyer and seller, induced through the plaintiff’s efforts. The meetings, with regard to which he himself testified, were productive of no mutual assent to terms upon the part of the individuals concerned, and it is uncontradicted that the sale as finally brought about was after the completion of negotiations through a broker other than the plaintiff. It is, of course, unnecessary that the broker should be actual-y present where the parties finally agree, Bickart v. Hoffman, 46 St. Rep. 886; Sibbald v. Iron Co., supra, but it is essential that the agreement as concluded should be that procured by the individual claiming commissions, and it is for him to show that such was the fact Testimony as to a mere introduction of the parties by the broker, resulting in no meeting of their minds, and a sale taking place two months and more thereafter, with no further action upon the part of the broker, and nothing being shown as to continued negotiations between the parties after their introduetton and failure to agree, if tending to disclose a cause of action in any event, we view as presenting but a scintilla of evidence in the case before us, and unavailing against the motion for a nonsuit made below. Hudson v. Railroad Co., 145 N. Y. 413 ; 64 St. Rep. 843; Carroll v. Tucker, 2 Misc. Rep. 397; 50 St Rep. 611.

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

All concur.


author: Gaynor, J.

text:
    John C. Sheehan, Pl’ff, v. Treasurer of Long Island City, Def't.

      (Supreme Court, Queens Special Term,

      Filed February, 1895.)

    1. Mandamus^Mtjnicifal officers.
    A person, who performs work under a contract with a city in pursuance of a statute which provides that bonds may issue to pay for such work, may compel their issuance by mandamus, unless such contract is violative of the constitution.

      2. Constitution — Amendment.
    The constitutional amendment, which took effect January 1, 1895, does not apply to or effect previous or existing contracts, by which a greater indebtedness will be incurred.
    Application for a writ of mandamus.

      Browne & Sheehan (Edw. Browne, of counsel), for the motion; Charles E. Seward, Corp. Counsel, and Mr. Foster, opposed.
   Gaynor, J.

By act of chapter 644 of the Laws of 1893, a com-

mission of five persons was created to do a general municipal improvement in Long Island City. These commissioners entered into a contract with the petitioner whereby he agreed to construct certain trunk sewers, the contract providing that he should be paid in installments as the work progressed. The act provides that to pay for the doing of such improvements the mayor and common council shall, upon the requisition of the said general improvement commission, issue bonds of the city, which shall be signed by the mayor and city clerk, and attested by the city treasurer, and have the corporate seal. It is required that such bonds be issued in separate series of not more than $50,000, or such part of that sum as may be required for any particular improvement; that the first series shall grow due in five years, and each subsequent series at least one year later than its predecessor, and that each bond show on its face the improvement it is used for. It is provided that the bonds shall be sold by the treasurer under the direction of the mayor at not less than par, and that the proceeds shall be received by the treasurer, and paid out on the requisition of the said general improvement commissioners approved by the mayor. The act does not require that the bonds be sold by public advertisement or competition, being silent on that head. The sum of $4,473.20 became due to the petitioner upon his contract on December 31, 1894, and the said general improvement commissioners made and signed a requisition on the city treasurer therefor, which the mayor approved. To meet the payment on the said contracts, as they 'should become due, the city treasurer advertised for bids for eight series of bonds, beginning with the first series, and aggregating $385,000. The notice stated that the purchaser might pay for the bonds in installments, “ as the money may be required to pay for the improvements.,” The petitioner and another, acting together, offered to take them all at par on the said terms, and the offer was accepted by the treasurer, under the direction and approval of the mayor. On the 1st of January, 1895, the treasurer who made said contract of sale was succeeded by the present treasurer ; and though an installment of the bonds so sold had been signed by the mayor and city clerk and sealed, as required by the statute, the said treasurer refuses to attest them, as required by the statute, and deliver them to the purchaser. The petitioner has no way to get paid the amount of the said requisition for the amount due him except out of the proceeds of the sale of the said bonds. He, therefore, has standing under his said contract to do public improvements to make this application for a mandamus to compel the city treasurer to attest and deliver the contract of sale. He stands before the court in the other capacity of joint purchaser of the bonds, which might entitle him to make this application ; but his capacity of creditor is enough. The counsel to the city appeared in opposition, and does not dispute the facts, and, though he is by law the official adviser of the treasurer, that official was represented upon the hearing by other counsel, who submitted an affidavit by him ; but, every material statement of fact in it being upon information and belief, it has to be disregarded under a settled rule. People v. Common Council of Brooklyn. 77 N. Y. 503. It is doubtful, however, under a recent decision of the court of appeals, if the treasurer could be heard to question the character of the work or the amount due, his duties being purely ministerial. People ex rel. Ready v. City of Syracuse, 144 N. Y. 63 : 63 St. Rep. 38. There being, however, no dispute of facts, a peremptory writ must issue, unless the constitutional objection urged is good.

The constitutional amendment which went into effect on January 1, 1895, contains a provision prohibiting any city or county incurring indebtedness exceeding ten per cent, of the assessed value of taxable real estate within its limits except for the supply .of water. It is urged that the issue of these bonds will exceed the limit, but the constitutional provision which the new one supersedes applies only to cities of over 100,000 inhabitants, and the counties in which they are situated. The petitioner’s contract to do public work was made under this former provision, and under the guaranty of a statute providing, as we have seen, for the issue and sale of city bonds to pay the contract price, which statute must be deemed part and parcel of its contract; and the obligations secured to him by such contract cannot be impaired by the subsequent' amendment to the state constitution, for that would be in violation of the prohibition in the federal constitution against the impairment of contracts by any state law. Article 1, § 10 ; Von Hoffman v. City of Quincy, 4 Wall. 535; Hawthorne v. Calef, 2 id. 10 ; Louisiana v. New Orleans, 102 U. S. 203 ; Wolff v. New Orleans, 103 id. 358. Furthermore, the new amendment to the state constitution excepted existing contracts. The words are: And all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void.” The word “indebtedness ” here must be construed to be as broad as the word “ obligation," in view of the aforesaid provision of the federal constitution. The motion is granted.


author: Russell, J.

text:
    Thomas F. Mullins, as Trustee, etc., Pl’ff, v. Joseph M. Mullins et al., Def'ts.

      (Supreme Court, New York Special Term,

      Filed February, 1895.)

    Will — Construction.
    A devise by testator of real estate to his brother in trust ‘ ‘ to have and hold the same during the minority of the six children of another brother, for the benefit of such children,” and upon their attaining majority over to them, is valid, irrespective of the validity of the trust.
    Action to obtain a judicial construction of a will.

      Richard S. Emmet, for pl’ff; Rastus S. Ransom and W. H. Hamilton, for infant def’ts; R. E. Robinson, for other def’ts.
   Russell, J.

This action is for the construction of the will of Ellen Hoey, who died without descendants. By the first paragraph she devises a house and lot in East Fifty-Seventh street, New York city, to her brother Thomas F. Mullins. By the second paragraph she devises “ the house and lot known and distinguished as ‘No. 826 E. 57th St.,’ in the city of New York, unto my brother Thomas Francis Mullins, in trust, nevertheless, to have and hold the same during the minority of six children of my brother John Mullins, for the benefit of said children, being named respectively * * *. On said children attaining majority, I give, devise and bequeath the house and lot devised in this paragraph to the said six children and the issue of any deceased child, and the survivors and survivor of them, share and share alike, issue to take per capita and not per stirpes, to have and to hold the same to their own use and behoof forever.” By the third devise and bequest she gives all her remaining property to her brother Thomas F. Mullins. These six children survived the testatrix, and brought an action of ejectment to obtain possession of the house and lot devised to them in the will. The •.court at special term held the devise to be void, and dismissed the complaint. On appeal the general term sustained the dismissal, without passing on the validity of the devise, holding that, if the devise was valid, the trust enabled Thomas F. Mullins, the defendant, to retain possession. Mullins v. Mullins, 61 St. Rep. 468.

The questions here presented are: First. Is the devise to the children valid ? Second. If so, is the trust valid? Third. If the devise is not valid, does the title go to the residuary devisee, or to the heirs as in case of intestacy ?

The intent of the testatrix was plain. She wanted her brother Thomas F. Mullins to have all of her property except the house and lot devised to the children. She wanted those children of her brother John Mullins to have the house and lot No. 326 East Fifty-seventh' street. She did not desire those children to manage that property during their minorities, and, for that reason, empowered Thomas F. Mullins, her brother, to have and to hold it for their benefit during minority. Has she, then, by the use of language incapable of another construction, so expressed her manifest intent as to contravene the statute against perpetuities, and thus render that intent incapable of execution ? It is a well known rule that a technical and strict construction of language, inartificially expressing the meaning of the testator, will not be given the paramount, place so as to defeat the intent of the testator, where a reasonable interpretation would avoid the difficulty, and conform the intent of the testator to the legislation which seeks to prevent an undue suspension of the power of alienation. Phillips v. Davies, 92 N. Y. 199. The will of the testatrix in this case seems to be capable of such interpretation. She did not couple the trust to Thomas F. Mullins with any power or direction to do or perform any act which would be essential, within the scheme of her disposition, to convey to those children the title when they should attain majority. They were to take the title, or a vested estate, at a future time, but that time was at the time of her death. Moore v. Lyons, 25 Wend. 119 ; Leggett v. Hunter t 19 N. Y. 462; Du Bois v. Ray, 35 id. 168. The trustee could do nothing whatever with a trust entirely valid, but use tké place for their benefit during minority, or simply take charge for them during such period. Mo title was conveyed to him to pass over to them at any future period. It is plain, therefore, that the estate vested in the recipients of the bounty of the testatrix when her death came. There was no trust of the title by express language, and none will be presumed by implication. Post v. Hover, 33 N. Y. 593. When she died, therefore, to whom, under the operation of the will, would the estate go? If the six children were alive, to them. In one had died without descendants, the five remaining would take. That would be following the lines of the law of descent. If one had died leaving issue,, that issue would take. Mo other person than the children or their possible issue having any interest in the title, the words of survivorship were entirely superfluous, there being no vacuum in the title between the death of the testatrix and the majority of any child.

Again, there is another view which might be taken. The construction is that, where estates are conveyed or devised to two or more persons, they take as tenants in common in severalty unless a joint tenancy is conclusively given. In this case the usual rule follows. Each child took one-sixth, and if, by any possible construction, it should he held that there was a contingent right of survivorship after the death of the testatrix, it could be rationally held that his conditional estate, passing to the survivors, became theirs absolutely, so that each share, so passing once, was freed from the fetters of the clause of survivorship, and became the property of the others absolutely. Thus, no one of the six shares was fettered by any survivorship clause beyond the death of the first taker, and so was not suspended in its power of alienation beyond two lives in being. 4 Kent, Comm. 363 ; Cromwell v. Cromwell, 2 Edw. Ch. 495 ; 3 Ch. Sent. 7; Everitt v. Everitt, 29 N. Y. 39.

I hold, therefore, that each child took an estate as a tenant in common, and that the devise was valid, irrespective of the questian as to whether the trust itself was valid. I think that the intent to give to the children a fee was primary in its character, and not to be subverted by a secondary desire to have the shares controlled daring a short part of the lives of the recipients of the good will of the testatrix.

2. Was the trust clause valid? The statute authorizes express trusts for the benefit of others. It provides for an express trust “ to receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter period.” 1 Rev. Stat. p. 728, art. 2, § 55, subd. 3. The general term has held that, if the devise to the children is valid, that devise is controlled by an express trust. The authority, therefore, of the appellate court, binds the special term to a similar line of reasoning. And that line of reasoning accords entirely with my own views. It is not necessary to use the statutory language. The expression of any intent to create such a trust — • any words which are sufficient to indicate the meaning — will suffice. — The authority given by the testatrix is neither more nor less, being uncoupled with any disposition as to the title, than the right to receive the use and profits during the minorities. It is, therefore, valid as such, and gives the trustee control of each share during the minority of the child. If this were not so, and the express trust were not authorized, the authority might well be exercised under section 58 of the same article:

“Where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a po wer, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title.”

It is therefore unnecessary to consider the third question, as to where the title passes; for, under the construction given, it either goes to the residuary devisee or to the heirs as in cases of intestacy.

Judgment is therefore directed for a construction of the will in accordance with this opinion, with costs of the parties to be paid, out of the estate.


author: Kellogg, J.

text:
    Martin V. B. Turner, Pl’ff, v. Scott G. Boyce, Def’t.

      (Supreme Court, Clinton Special Term,

      Filed February, 1895.)

    1. Taxes — Assessment.
    An assessment ot land as non-resident, though occupied by a resident, is void and cannot furnish support for a sale.
    3. Same — Validating sale.
    The legislature has no power to validate a sale by a retrospective act, unless the assessment and sale were made in conformity with the material requirements of the existing law.
    3. Same.
    A statute, which provides that the tax deed shall be conclusive evidence of the regularity of the proceedings after two years have elapsed since it was recorded, does not embrace deeds of occupied lands recorded in violation of the provisions of section 68, chap. 427 of 1855.

      4. Same — Remedy.
    " Chap. 448 of 1885 does not apply where the state is purchaser.
    Action to recover damages for cutting timber on plaintiff’s land.

      John P. Kellas, for pl’ff; McCleary & Paddock, for def’t.
   Kellogg, J.

No contention is made over the title of the plaintiff to the land on which the timber was cut (lot 86 in the town of Belmont), except the northwest quarter; that is to say, defendant concedes that plaintiff should recover unless defendant’s title to the land is paramount to plaintiff’s title. The only question, therefore, relates to defendant’s title, or the title of his partner, William W. Wheeler. The deed to Wheeler is the ordinary quitclaim of the state, signed by the governor, under resolution of the land officé, and dated June 21, 1894. The only title then possessed by the state was such as was acquired through the tax sale of 1877, and through what was done by the comp troller at the tax sales of 1881 and 1885.

The tax sale of 1877 clearly conveyed no title to the state, for two reasons:

First. The land was assessed as nonresident during all the years in which taxes were levied for which sale was made, while in fact during all those years it was occupied by a resident occupant. The assessment was therefore void, and cannot furnish support for a sale. This proposition requires no argument. Josyln v. Rockwell, 128 N. Y. 334; 40 St. Rep. 274; Stewart v. Crysler, 100 N. Y. 378 ; People ex rel. Barnard v. Wemple, 117 id. 77 ; 26 St Rep. 720.

Second. The assessment for 1862 and tax levied' that year were upon the east half of the lot only. The tax upon the southwest quarter had been paid. Notwithstanding this fact, the comptroller undertook to sell the southwest quarter in 1877 for the unpaid taxes on the east half. It hardly needs argument to show that such a sale is unauthorized! If such a sale could be held valid, it would restul in taking from the owner of the southwest quarter his land for a tax never levied thereon, a clear violation of the constitutional provision against taking property without due process of law. The fact that taxes of other years on the southwest quarter were unpaid and the sale of 1877 included those-ftlso, does not cure this fatal defect. The fact remains that the sale was made to discharge a burdon never imposed. There is no way open to the owner of this .southwest quarter by which he could ’obtain relief upon discharging the actual tax burden upon his land after the sale. The redemption of a “specific part” of an entire tract, provided by section 53 of chapter 427 of Laws of 1855, can be made by the person claim-in such part in only one way, and that is “by paying * * * such proportion of the purchase money and interest as his quantity of acres shall bear to the whole quantity of acres sold.” The whole scheme of taxation and collection of taxes is based upon plain, sound principles. It cannot be reasoned from any language of the law, or by any implication to be drawn from such language, that parcels of land separately assessed and separately taxed may be bunched with other parcels and sold in a lump. Much less does the law authorize such a sale where it is apparent that such a sale makes one parcel stand for the taxes levied only upon other parcels. Section 44 of chapter 427 of Laws of 1855 provides in plain terms the duty of the comptroller at a tax sale. He “ shall commence the sale of such lands and shall continue the same from day to day until so much of each parcel so assessed shall be sold as will be sufficient to pay the taxes, interest and charges thereon.” Asale of several parcels which have been separately assessed in one lump lot permits the purchaser who will take the smallest acreage and pay the tax upon all to take that part of the whole lump owned by A. to pay taxes on the parcels owned by B. This is not in accordance with the section last quoted, nor in accordance with any provision of the law governing sales that I have been able to discover.

In People v. Hagadorn, 104 N. Y. 521; 5 St. Rep. 782, it is said:

“It is an elementary rule that public officers exercising the right of selling the property of the citizen by statutory authority are required to pursue the requirements of the statute strictly.”

And, again, at page 524, 104 H. Y.

“Under our scheme of taxation, the tax for each year is sepan ately levied and returned to the comptroller, and he is under no legal obligation in making a sale of land to join the taxes of different years, or to sell for the aggregate sum of all the taxes due for separate years, upon such land. The necessary effect of such a joinder of taxes is therefore to make the payment of an illegal tax the condition of the owner’s right to attain his property and subject him, contrary to the meaning and spirit of this statute, to the payment of an unjust and illegal exaction as the price of his legal right to redeem his property * * There can be no division of the sum payable, and no separation which can validate a part and reject the rest. It is either wholly bad or altogether good.”

The court held it wholly bad.

It also appears that, for the year 1870, the northeast corner of this lot and the south half were separately assessed. The tax levied on the northeast corner (160 acres) was $4.53, and on the south half (320 acres) $11.35, and at the sale of 1877 the land was sold as one parcel for the aggregate tax. Thus, each parcel, at different valuations per acre, was made to stand the tax levied upon the other. For the reasons I have before given I think this -was an error fatal to the sale. It is a violation of the plain principle that one man’s land cannot be sold to pay the taxes upon another’s, or, which is the same thing, one parcel of land cannot be sold to discharge a tax upon another parcel, no matter how small that tax may be.

We next come to the question as to the effect of chapter 448 of the Laws of 1885 upon the sale of 1877 and the deed given pursuant thereto. As a curative statute, obviously, it can have no effect. The defects pointed out are not irregularities simply; they are in the highest sense jurisdictional. Josyln v. Rockwell, 128 N. Y. 334; 40 St. Rep. 274. It cannot be denied that the legislature has full power over the subject of taxation and the collection of taxes, and may adopt any method of assessment and collection which gives to the taxpayer an opportunity to be heard, and which does not necessarily come in conflict with the constitutional provision against taking property without due process of law ; but, when the legislature has by law established its method, the taxpayer has a right to rely upon its being strictly pursued in all its material provisions. And while the legislature may at any time validate a tax by a curative law as to irregularities which might have been dispensed with in the first instance, had the law so provided, yet the legislature has not the power to validate a sale by a retrospective act unless the assessment and sale were made in conformity with the material requirements of the exisiting law. This is a sound distinction, and is supported by ample authority. Oromwell v. MacLean, 123 N. Y. 489; 34 St. Rep. 85.

If the law of 1885 can be of any avail to defendant, it must be because of the limitation therein provided upon by plaintiff’s right to point out the fatal defects named, and which make the sale of 1877 and the deed to the said void; in other words, because the deed to the state must be accepted in the court as conclusive evidence of title. This is the claim which counsel for defendant urges. For several reasons, I do not think the claim well founded.

1. The ast of 1885 does not apply to deeds of lands “ any part . of which are actually occupied at the time of the expiration of the two years given for the redemption thereof,” which deeds have been recorded in violation of the provisions of section 68, chap. 427, Laws of 1855, and the deed to th'e state referred to was so recorded. Certainly, the actual occupant, if h,e be the owner or the agent of the owner, has a right to rely upon this express provision of the law: that no record of any deed will be made until he has received actual notice. The recording act has no ap- ■ plication by way of making the record constructive nqtice to him; and, so long as the law prohibits the recording, he is not required to keep constant watch of the county records to ascertain if there has been a breach of the law. I do not think the legislature, in fixing the period of two years, and making a deed recorded that length of time conclusive evidence of title, meant in this law to embrace deeds of occupied lands recorded in violation of that prohibitory statute, for the effect would be to nullify that statute. .This the legislature could not have intended, for the prohibitory section is re-enacted in section 14 of chapter 711 of the Laws of 1893, the time being changed to one year after notice. If this prohibition upon the record of deeds is not to have a beneficial effect in favor of occupied lands, then any deed may be recorded as soon as. received from the comptroller, and the two-years limitation be immediately started. At the end of two years, while the occupant has been waiting for the notice the law says he shall have, the deed becomes conclusive evidence of title. I do not think this is the intention of the legislature. It is impossible to give effect to both statutes without interpreting them to mean that the limiting statute of 1885 gives to the owner of occupied lands two years after a deed is recorded in conformity with the provisions of the law touching the recording of deeds obtained at tax sales ; and -the two-years limitation cannot begin to run at the instance of the purchaser until after service of the notice upon, the occupant, as provided by section 68, c. 427, Laws 1886, or as reenacted in section 14, c. 711, Laws 1893, and thereafter recording such deed. It is no injustice to the purchaser to require that he conform strictly to the law if he is to be permitted to take through the law houses and lands to which he is in no way entitled, on any principle of right or justice, and which he gets only through a law which permits him to close the mouth of and strangle the rightful owner.

2. The plaintiff and his grantors were at the time of the passage of the law of 1885, and during the six months therein limited, in the actual possession of the land, and in the unrestricted enjoyment of all the rights touching the land as owner, and, being so, the statute as one o£ limitation could not apply. In the assertion of what right was he limited ? How could the legislature take his land from him by enacting that, if he remained peaceably in possession and enjoyment of his land,- he should lose it ? A statute of limitations, as commonly understood, is a time limit to the enforcement of a latent or dormant right. If not enforced within the time fused, it is counted as abandoned. But what dormant right was the plaintiff here called upon to actively enforce? His possession and title were perfect, and he was in full enjoyment of every right. He claimed nothing which he did not possess. Is he, at the instance of the legislature, to put on his armor and go in search of some mythical enemy, and attack all windmills within six months, on pain of a forfeiture of his property rights ? The limitation might properly apply to those claiming rights, and kept out of possession or enjoyment. The claimants, through these deeds to the state, might be properly made objects of a liihitation act, for they obviously have something to do before they can reach the enjoyment of the rights^ they claim, but to apply a limitation to the plaintiff is a reversal of the accepted ■office of such an act:

In Joslyn v. Rockwell, 128 N. Y. 339; 40 St. Rep. 274, Justice Peckham says:

“It is claimed that one in possession of all his rights cannot be compelled to resort to legal proceedings, or else run the risk of losing them. The question does not arise in this case. * * * There is very weighty authority for holding such a statute in the ■case of one in possession to be invalid.’’

And so, indeed, there is. Abell v. Harris, 11 Gill & J. 371; Cooley, Const. Lim. (3d ed.) 366 ; Groesbeck v. Seeley, 13 Mich. 329 ; Case v. Dean, 16 Mich. 12 ; Baker v. Kelley, 11 Minn. 495 (Gil. 358); Hill v. Lund, 13 Minn. 451 (Gil. 419); Feller v. Glark, 36 Minn. 338 ; Dingey v. Paxton, 60 Miss. 1038; Spurlock v. Dougherty, 81 Mo. 171; Daniels v. Case, 45 Fed. 843; Land Trust v. Hoffman, 6 C. C. A. 358 ; 57 Fed. 333. All the cases here referred to hold the same doctrine, and put in the language of Mitchell, J., in Feller v. Clark, supra, is as follows:

“ The legislature cannot require a person in the uninterrupted . enjoyment of his own property to commence an action for the purpose of vindicating his right against some void claim existing merely on paper, or declare that by his failure to do so the title to his property shall vest in the holder of that void claim.”

3. The sale of 1877 and the deed having been to the state, the provisions of the law of 1885 cannot be invoked in its aid in this action, either as a law of limitation or as a rule of evidence. The reason for this would seem apparent upon a bare statement of the proposition. This deed was recorded in 1882, and had been three years of record at the time the law of 1885 went into effect. By that law six months was given in such cases to the landowner to take legal proceedings to have the deed declared invalid, or else thereafter it should be taken as conclusively valid and as a conveyance of an unimpeachable title. No provision is made in this law or any other by which any action or proceeding could be taken against the state, and without the consent of the state no such action or proceeding could be taken. Locke v. State, 140 N. Y. 480: 56 St. Rep 454; Parmenter v. State, 135 N. Y. 163; 48 St. Rep. 129,

In Parmenter v. State, supra, PeckHAM, J., says:

“ Between citizens the courts are at all times open, and each can at any time resort to some legal forum for the enforcement or protection of his claim or right as against any other citizen. It is different in regard to the state. Unless with its consent, it cannot be sued. The counsel for the state concedes, what would also seem quite plain, that, if there never had been any tribunal created by the state before which the claimant could have pressed his claim, the statute of limitations would not have commenced to run, because it would have been absurd to hold there was a statute of limitations within which a claim must be sued when there had been neither a person to be sued nor any court or tribunal before which the state could be summoned to answer the suit.”

The right to take action or proceedings against the state must be express, and does not arise by application. Locke v. State, 140 N. Y. 480; 56 St Rep. 454. It cannot be claimed that any such consent was given by the act of 1885. Such a consent is not even hinted at in People v. Turner, 117 N. Y. 227 ; 27 St. Rep. 158. The taxpayer, as landowner, could not apply to the comptroller to set aside this sale, or to in any manner test the validity of the sale or deed. This has been repeatedly held. People ex rel. Wright v. Chapin, 104 N. Y. 369 ; 6 St. Rep. 837 ; Ostrander v. Darling, 127 N. Y. 70; 37 St. Rep. 335; People ex rel. Roeblings' Sons Co. v. Wemple. 138 N. Y. 582; 53 St. Rep. 297; People ex rel. Witte v. Roberts, 144 N. Y. 234; 63 St. Rep. 100.

The only intimation that the taxpayer had such right which can be found in any of the books is found in the dictum of Ruger, J., in People v. Turner, 119 N. Y. 239 ; 27 St. Rep. 158, when he says:

“ But more than this, after the tax had been returned to the comptroller, the taxpayer has still the right, both before and after the sale of his property, to appear before that officer, and make proof of any illegality in the tax levy, and demand that such tax and any sale made thereon shall be cancelled by him.”

It cannot be that the court here meant to reverse itself or set aside its decision in People v. Chapin, supra, where the question was directly at issue; and, if it did so mean, the law must be taken as it now stands, as declared in Ostrander v. Darling and People v. Wemple, supra, which are later decisions and distinctly hold that a taxpayer has no such right, and never did have. The plaintiff and his grantors were, then, during the six months after the passage of the law of 1885, wholly without a tribunal or court in which to test the validity of the sale or deed made to the state. By what process of reasoning, then, can the conclusion be reached that they were guilty of loches? . They were simply required by the law of 1885, if it can be held to apply here, to do a conceded impossibility, and failing, they were to be stripped of their possessions. Surely, the taking of the taxpayer’s property in such a case would not be a taking “ by due process of law.”

The taxpayer is no better off with this six months’ limitation than were taxpayers under the Westchester county law (chapter 627, Laws of 1887), respecting which Peckham, J., uses this forcible language (Cromwell v. MacLean, 123 N. Y. 489 ; 34 St. Rep. 85):

“ Has the legislature of this state the right to take the property of A., and transfer it to B., under the guise of confirming sales made of such land in invitum, but by which no title, in fact or in law, passed from the owner to the purchaser ? The statement of the question should be its best answer. Property thus taken is not taken by due process of law.”

We next come to the deeds to the state, dated one in 1884 and one in 1890. These were made to the state, pursuant to section 66, chap. 402, Laws 1881. They profess to convey to the state the land in question, and were both recorded without notice to the occupant, and are both, in this respect, on the same footing as the deed hereinbefore referred to, given pursuant to the sale of 1877: and both deeds are subject to all the other defects named touching the deed following the sale of 1877. But these two deeds are also valueless as grants of any right or title to the land in them described, for the reason that no sale in fact was made by the comptroller to the state of these lands at the time a pretended sale is referred to in them. The comptroller, at the tax sales of 1881 and 1885, did not in fact sell these lands, but followed the injunction of the law referred to (section 66, chap. 402, Laws 1881) respecting lands “ belonging to the state,” and refused to receive bids therefor. I do not think that the legislature ever supposed that any one would be mislead into the belief that a deed made in accordance with its injunctions in this section created a title in the state or mended any. It is only as to lands already belonging to the state that the comptroller is authorized to refuse bids. To such lands the state needs no new or additional grant. If the state did not already own them, the state, to get title, must compete with other bidders. So the intention of the legislature is apparent. It was merely intended to withdraw such lands from the sale. Deeding to the state under such circumstances, while an authorized form, made such deeds only evidence that the state paid the tax because of previous ownership. Obviously, to give such deeds the character and force of independent grants would be to hold that the state is not prohibited by the constitution from taking the property of the citizen without compensation or without due process of law. The owner of the land is deprived of his right to have his land go to the person who will take the smallest quantity, and pay the tax, saving to himself the portion not required to pay the tax. As to the lands already owned by the state, the provisions of this section harm no one; but as to lands not in fact owned by the state, the state has no power to obtain title in. this way, nor does this section presume to confer such power.

Judgment for plaintiff.


author: Patterson, J.

text:
    In the Matter of the Probate of the Will of Lewis R. Blair, Deceased.

      (Supreme Court, New York Special Term,

      Filed March 25, 1895.)

    Appeal — Undertaking—Application to fix amount.
    Where there is a dispute as to the character of the judgment appealed from, an application for an order, fixing the amount of the undertaking to be given on appeal from a judgment of the general term to the court of appeals, should be made to tlie general term.
    Motion for on order, fixing the amount of the undertaking to be given on appeal.

      William, Blair, for the motion ; Porter & Kilvert, opposed.
   Patterson, J.

This motion was made at the special term for an order fixing the amount of the undertaking to be given by the appellants upon appeal from a judgment of the general term to the court of appeals for the purpose of obtaining a stay of proceedings, and dispensing with an undertaking on the part of one of the appellants as executor. The question of practice presented is whether such motion should be made at the special term or general term. By section 1312 of the Code of Civil Procedure it is provided that the court in or from which the appeal is taken may limit the amount of, or dispense with, security in certain cases. By section 1327, which regulates appeals to the court of appeals, the kind of security to stay execution on a judgment for money is specified, and, as therein provided, the court may at any time afterwards, on satisfactory proof that the sum so fixed is sufficient in amount, make an order requiring the appellant to give a further undertaking. Where the judgment is for a chattel, or the delivery of personal property, the appellant must give an undertaking in a sum fixed by the court below or a judge thereof. By section 1330, what must be done upon an appeal from a judgment or order directing the execution of a conveyance is stated. And by the next section (1331) security to stay execution on a judgment for the possession of real property, when required, shall be in the form of an undertaking which, in addition to the other requirements, shall be in the sum “fixed by a judge of the court below.” It will thus be noticed that the kind of undertaking or security to be given to obtain a stay will depend upon the character of the judgment. As to certain judgments, the court below, or the court to which the appeal is taken, may fix the terms of the security, and in some cases dispense with it; and in other cases again, where it is a question of fixing the amount of security, not only the court below, but any judge thereof, has the power so to fix it. Without, therefore, passing upon the question of the right of the judge at special term in certain cases — such as appeals from money judgments — to determine the amount of security, I think that where, as here, there is a dispute as to the character of the judgment, and the appeal is from a judgment of the general term, the proper practice would be to have the application made to that branch of the court to fix the amount of the undertaking, and to determine whether one of the appellants, designated as an executor, has the right to appeal without giving any security. While it is true that the general term is the supreme court, or the same court as the one in which the special term judge sits, it is a different part thereof, and it would be unnecessarily burdening the special term to require it, or a judge of the court not a member of the general term, to construe the character and effect of the judgment appealed from. The general term, having rendered the judgment, is in the best position to determine its character and scope.

I think, therefore, that the application should be made to the general term, and this motion is accordingly denied, with leave so to apply.


author: Andrews, J.

text:
    The People ex rel. Gottchius, Pl’ff, v. McGoldrich, as Clerk of the City Court, Def’t.

      (Supreme Court, New York Special Term,

      Filed March 18, 1895.)

    1. Mandamus — When granted.
    A mandamus will not be granted to compel the clerk of the New York city court to deliver papers in his possession to relator to be filed with the county clerk.
    2. Same.
    Where a decision by a judge of the city court that papers in certain proceedings shall be filed with the clerk thereof, has been acted on for a number of years, it will not be disturbed on application for a mandamus.

    Application for mandamus to compel the clerk of the city court to deliver the examination of defendant taken in supplementary proceedings, in order that the same may be filed with the county clerk.

      Stephen B. Brague, for relator; John B. McGoldrich, in pro. per.
   Andrews, J.

This is an application for a writ of mandamus to compel city court to deliver to plaintiff’s attorney the examination of a defendant, taken in proceedings supplementary to execution, in order that the same may be filed with the county clerk. There can be no doubt that proceedings supplementary to execution are “ special proceedings,” for they are expressly declared to be such by section 2433 of the Code; and section 825 of the Code declares that a return or other paper in a special proceeding, where no other disposition thereof is prescribed by law, must be filed, and an order therein must be entered with the clerk of the county in whi'ch the special proceeding is taken if it is before a county officer ór a judge of a court established in a city. As I understand the matter, there is no other statute which prescribes what disposition shall be made of papers in special proceedings instituted in the city court, and it, therefore, seems to me clear that such papers should be filed with the county clerk. If any provision of rule 2 of the general rules 'of practice conflicted with .the above cited provision of said section 825, such provision would be a nullity, as the judges have no power to make a rule which conflicts with the said section. I am of the opinion, however, that no provision of said rule does conflict with said provision of said section 825, for the rule, by its own terms, applies to those cases only where no provision is made by the Code, and in this case provision is made by said section 825. This conclusion seems to me to be in accord with that of the general term of the superior court in Fiske v. Twigg, 50 N. Y. Supr. Ct. 69. Nevertheless, I think that the present application for a writ of mandamus should be denied, for several reasons: First. A writ of mandamus does not issue as of right, but whether it shall issue rests in the sound discretion of the court; and it does not usually issue where the relator has another adequate remedy. In the present case, the relator has an adequate remedy by an application to a judge of the city court to require the clerk to file the papers in the office of the county cleric, and, if such application is denied', by an appeal to the general term of the city court; and, if the order denying the application is affirmed, by a further appeal to the general term of the court of common pleas. Secondly, The question involved relates to the final disposition of papers in special proceedings instituted in said court, and it seems to me that the determination of that question should, in the first instance, be made by the judges of that court. Moreover, it appears-that the identical question now presented was brought before the chief justice of that court several years ago, and he came to a conclusion different from that reached by me, and decided that the examinations of judgment debtors, taken in supplementary proceedings instituted in that court, should be filed with the clerk of the said court. Renner v. Meyer, 6 N. Y. Supp. 535. No op-. peal was taken from the order entered upon this decision, and it appears by the affidavit of the clerk that, in compliance therewith, vast numbers.of papers have been retained by him, and are now on file in his office, and that this is the only instance in which it has been claimed that it was not his right and duty to do so. Under these circumstances, for this court to now issue the writ asked for would be to disregard the salutary rule staredecisis, to embarrass the clerk in the discharge of the duties of his1 office, and place him in the awkward position of being compelled to disregard the decision of the former chief justice of his 'own court in order to comply with the writ. I think the relator should be left to his remedy by motion in the city court.

Motion denied, without costs.


author: Beekman, J.

text:
    New York Board of Fire Underwriters, Pl’ff, v. Metropolitan Lloyds of New York City, Def’t.

      (Supreme Court, New York Special Term,

      Filed March 26, 1895.)

    1. Statutes — Public.
    Chapter 846 of 1867; so far as it authorizes the New York board of fire underwriters to provide a fire patrol and gives the patrol full power “ to enter any building on fire, or which may be exposed to or in danger of taking fire from other burning buildings,” is a public act.
    2. Same — Constitutional.
    Such act is constitutional.
    Action by the New York Board of Fire Underwriters against the Metropolitan Lloyds of New York City, Beecher & Go., as chief executive officer thereof, performing coresponding functions of treasurer. Defendant demurs to the complaint

      John Berry, for pl’ff; W: C. Beecher, for def’t.
   Beekman, J.

Upon a careful examination of the questions raised by the demurrer in this case, I have come to the conclusion that I would not be justified in rejecting the complaint as insufficient, although it rests quite upon the border line. If the statute upon which the plaintiff relies for his cause of action is a private act, it certainly has not been properly pleaded under section 530 of the Code of Procedure, which requires the title of the act to be set forth, as well as its chapter and year of passage, where that form of pleading is resorted to. I am, however, inclined to the view that the act in question is a public act; at least so far as the portions of it upon which the cause of action rests are concerned. It is, at times, difficult to determine in which category a particular statute falls. Abbott, in his Law Dictionary, defines a private act to be “an enactment which does not affect the public at large, but bears upon individuals only ; such as an act settling the title to or authorizing the sale of a particular parcel of land ; an act allowing a person’s claim against government and directing payment.” Sedgwick, in his work on Statutory Construction, says: “In this country the disposition has been, on the whole, to enlarge the limits of the class of public acts, and to bring, within it all enactments of a general character, or which in any way affect the community at large.” This disposition is illustrated by the remark of the chancellor in the case of Bank v. Smedes, 3 Cow. 662, in which he says that he is not prepared to admit that “a law incorporating a bank, without declaring the law to be a public statute, is a private act, which must be recited in every suit against the corporation. These institutions,” he remarks, “are public in their nature and character, and their operations affect the whole community.” It is also a recognized principle that a private act, which contains some provisions of a public nature, is pro tanto a public act. Now, in the case at bar, while the act in question is entitled “An act to incorporate the New York Board of Fire Underwriters,’’ and, as its title imports, confers corporate capacity upon the board, with functions largely of a private nature, certain powers are also vested in the corporation which directly affect and concern the interests of the public at large. These powers relate to the organization and operations of the fire patrol in this city. By section 7 of the act (chapter 846, Laws 1867) the board is authorized to provide a patrol of men to discover and prevent fires “with suitable apparatus to save and preserve property or life at and after a fire.” Full power is given to them, in the performance of their duties, “to enter any building on fire, or which may be exposed to or in danger of taking fire from other burning buildings,” and they are placed under the control of the fire department while on duty at a fire. The state has thus delegated to this body a certain measure of its police power, and every member of the community shares, with all others, the beneficial enjoyment of the protective service which the fire patrol thus renders, and every owner of property is subject to the exercise of this right to enter upon his property in the cases above specified. These provisions fairly bring the act in question, at least so far as the sections which bear upon the cause of action are concerned, within the class of public statutes.

The difficulty the defendant’s counsel seems to find in determining who are the other organizations and agencies referred to in section 8 of the actas “hereinbefore mentioned” is solved, I think, by the first sentence of the section, which mentions, among those who are entitled to attend the plaintiff’s biennial meeting, incorporated insurance companies or associations doing business in the city of New York, whose officers or agents are not members of the plaintiff corporation. It is the evident intention of the act that the right to participate in the meeting, which is to determine whether the fire patrol shall be continued, shall be enjoyed by all who are subject to assessment for its maintenance. It would also seem clear that the word “association,” as used in the section, imports an unincorpoated body, because we find in the following section the same word evidently used to denote something different from a corporation.

Upon the question of the constitutionality of the act, I am of the opinion that the objection raised is hardly tenable. The legislature has the power to regulate the insurance business. In fact it has done so by adopting a voluminous law. upon the subject and providing for state supervision. The provision, in the act under discussion, for an assessment upon those engaged in the business in the city for the support of fire patrol, in proportion to premiums received, may well be sustained in view of the public nature of the service rendered, and the great and peculiar benefit received from it by insurers whose losses upon policies are largely reduced by its efficiency. At all events, I should not undertake at special term to pronounce the act to be unconstitutional without much plainer evidence of the-fact than I find to exist.

The objection that the action cannot be maintained in the form in which it has been brought, because the Metropolitan Lloyds has neither president nor treasurer, is not tenable. . It may be true as the complaint shows, that it has no such officer eo nomine, but the allegation that Beecher & Co. perform “ corresponding functions of a treasurer ” sufficiently designates them as such, although they may not bear the title. Upon the whole, I think that the complaint is sustainable, and that the demurrer should be overruled, with leave to the defendant to answer within twenty days on payment of costs.