author: Landon, J.: Boarbman, J.:

text:
    ALIDA F. FLINT, Appellant, v. CALVIN H. BELL, Respondent, Impleaded, etc.

      General assignee — is a trustee for the creditors — right of the latter to bring an action to set aside an unauthorized conveyance made by the assignee — laches of creditor.

    October 19, 1861, one Dorman made a general assignment for the benefit of his creditors, the plaintiff being among those preferred. The assignee, after giving the usual bond, took possession of the assigned property, and paid all the debts-of the assignor except the plaintiff’s. For fifteen years from the date of the assignment the assignee occupied and used the real estate of the assignor, and made improvements thereon. The plaintiff had knowledge of and acquiesced in his so doing, relying upon his representation that her debt was the sole remaining lien upon the land. In 1876 the assignee conveyed the premises to the defendant to secure advances; and subsequently the defendant brought an action against him, and obtained a judgment therein, requiring him to redeem the premises within a certain time, which he failed to do. This action was brought by the plaintiff to set aside the deed to the defendant as fraudulent, and to enforce the payment of her debt from the property.

      Held, that th'e action was properly brought; that as the relation between the assignee and the plaintiff was that of trustee and cestui que tn'usi, neither her acquiescence in his occupation of the real estate nor her failure to first bring an action upon his official bond, prevented her from maintaining this action.
    Appeal from a judgment in favor of the defendant, entered upon ■the trial of this action by the court without a jury.
    Daniel D. Dorman on the 19th of October, 1861, assigned his property, real and personal, to James E. Beller in trust for his ■creditors, among whom the plaintiff .was preferred. The assignee gave the usual bond with sureties, entered into possession.of the assigned property, and paid and discharged in full all of the debts •of the assignor except the debt due to the plaintiff. The assignee, from the date of the assignment, occupied the real estate assigned to him, and used and enjoyed the same as his own property for fifteen years, and made improvements thereon. This was done with the knowledge and acquiescence of the plaintiff, but upon the assignee’s representation to her that the assignor’s indebtedness to her was the sole remaining lien upon the land. In 1816 the assignee conveyed the real estate to the defendant for $2,500, of which about $1,100 was for cash paid the assignee, and the balance was paid to the assignee’s individual creditors. The defendant, however, agreed to reconvey to the assignee upon being repaid his advances with interest. This the assignee failing to do the ■defendant brought an action against him for the possession of the landj and recovered a judgment that the same should be delivered to him unless the assignee reimbursed him his advances, which were adjusted at $2,538.11, within sixty days. The assignee, among other defenses interposed in the action, alleged that the only title which he had to the premises was as assignee of Dorman, and that he had not executed the trust, the plaintiff and one Elizabeth Shaver being unpaid. It appears that the assignee made advances out of his own funds to pay the debts of the assignor, but to what extent beyond the assets and income received by him did not appear.

      0.. W. Smith, for the appellant.

      G. H. Bell, for the respondent.
   Landon, J.:

The learned trial court held that the plaintiff was not’ entitled to-recover upon two grounds: First, because she had not exhausted

her remedies at law upon the bond given by the general assignee second, because she was estopped hy her acquiescence for fifteen years in the assignee’s claims, conduct and assumptions, relative to-the trust estate.

We are inclined to think neither ground tenable.

1. The general assignee, for the benefit of creditors was, with respect to the land in question, the assignee of an express trust. (1 It. S., 728, •§ 55:) The statute, section 60, and the letter of the assignment, gave him title to the land, subject to the execution of the trust. ' One of the expressed purposes of that tr,ust was to-pay the plaintiff the assignor’s indebtedness to her. This he has not done. The section of the statute last cited confers upon the plaintiff, as one of the persons for whose benefit the trust was-.created, the right to enforce its performance in equity. That the assignee had given a bond for the faithful performance of his-duties may give the plaintiff an additional remedy, but cannot deprive her of one expressly conferred by the statute. Whether-the sureties upon the bond are solvent is immaterial. (Haddow v. Lundy, 59 N. Y., 320; Oliver v. Piatt, 3 How. [U. S.], 333.)

ll. The trial court found that the general assignee, from the date of the assignment to him, until the date of his deed to the defendant, a period of fifteen years, had occupied and used the land in question as his own, with the knowledge and acquiescence of the-plaintiff. There is undisputed evidence to the effect that the plaintiff did this in reliance upon the assignee’s representations that he had paid all of the assignor’s debts, except hers, which was-the sole remaining lien upon the land. This of itself would defeat any estoppel the assignee might assert against her.

The defendant is in no better position, for he purchased the land with both constructive and actual notice of the trust, not to aid in its execution, but in contravention of it. It is true that the assignee told the defendant that he had paid all of the assignor’s debts. But the defendant relied upon such information at his peril. (Briggs v. Davis, 20 N. Y., 15.)

If such information were true, the defendant, himself a lawyer, was advised by the statute that the estate of the assignee in the land had ceased (1 R. S., 730, § 67), and that the land had reverted to the assignor. (Sec. 62; Briggs v. Davis, 21 N. Y., 574.) The assignment gave him the same information. If it were not true, the statute declares that where the trust is expressed in the instrument creating the assignee’s estate, any sale.in contravention of it is void. (Sec. 65; Rathbone v. Hooney, 58 N. Y., 463; Reid v. Sprague, 72 N. Y., 457; Briggs v. Davis, supra.) The representations of the assignee to the defendant advised him that the assignee was dealing with the land as his own, and for his own benefit, and without any idea of aiding the trust.

Mere lapse of time afforded no bar to enforce a subsisting trust, .and time begins to run against it only from the date of its open disavowal. (Oliver v. Piatt, supra.) Gross inattention on the part of the cestui que trust furnishes no( bar to relief against persons conversant with the trust. (Ib.)

The deed given by the assignee was in effect only a mortgage,, .and jt was so held in the action brought by the defendant against the assignee to recover possession of the land. The court in that action permitted the defendant to recover, unless the assignee redeemed within a time limited. That judgment, however, does not affect this plaintiff. She was not a jiarty to it, and her equity in the land cannot be barred when she has had no day in court. The defendant’s possession must, of course, be subject to the execution of the trust in favor of the plaintiff. The plaintiff is entitled to have that trust executed to the extent of the assignor’s indebtedness to her, and her equity for its enforcement is superior to any title the defendant has to the land. It is a clearly established principle of equity jurisprudence, independent of the statute, that whenever the trustee has been guilty of the breach of the trust, and has transferred the property by sale or otherwise to any third person, the ■cestui que trust lias a full right to follow such property into the hands of such third person, unless he is a bona fide purchaser for a valuable consideration without notice, as this defendant clearly is not.

It follows that the judgment must be reversed and a new trial •ordered, costs to abide the event.

Learned, P. J., concurred.

Boarbman, J.:

I concur in this opinion and in the result. But a trial may develop facts which will show that plaintiff has been wholly or partially paid by her board, etc., or otherwise. An estoppel may arise against the plaintiff upon an accounting if it shall appear that she has consented to the acts of the assignee, whereby the assigned property has been fully disposed of, leaving her debts unpaid and she consenting thereto.

Judgment reversed and new trial granted, costs to abide event. •


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    LUCY A. MICHELSON, Respondent, v. ELISHA S. FOWLER and Others, Appellants.

      Levy under execution upon the interest of a mortgagor of chattels — deprives him of his whole interest, and not merely of an interest equal to the amount of the judgment.

    After the plaintiff had given a chattel mortgage upon a stock of goods owned by her, the goods were seized by a constable under an execution issued upon a judgment recovered against her. The defendants, who were then the owners of the chattel mortgage, brought an action of replevin against the constable and took the goods from him.

      Held, that after the levy made by the constable the plaintiff had neither the possession nor the right to the possession of the goods, and that she could not maintain an action against the defendants to recover any balance that might remain after deducting the amount due upon the defendants’ mortgage and the execution held by the constable.
    That the constable holding the execution was entitled to recover of the defendants the full amount of the plaintiff’s special interest in the goods levied upon and not merely the amount named in the execution; that consequently the defendants were not liable to the plaintiff for the same special interest.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to set aside two bills of sale made by the plaintiff.
    The plaintiff was carrying-on in her own name and separate from her husband the millinery business. Her husband had, however, bought some goods upon his own credit of one Browner which had gone into her business. Her husband owed Browner for these goods over $100, and also some other small sum. Browner sued plaintiff’s husband to recovei these demands, and in order to settle them the plaintiff gave Browner a bill of sale of her entire stock of goods absolute in form but upon tire oral condition that he would retransfer it to her upon being paid $184.40, the amount of the aforesaid demands and costs of the suit, and in the meantime the plaintiff was to retain possession of her store and carry on the business as before. Fourteen days after the above transaction and on the 6th of December, 1879, the plaintiff executed and delivered to the defendants Fowler and Lyons another bill of sale of the same stock of goods. The plaintiff was then indebted to them in the sum of $161.12.
    On the 8th of December, 1879, the said Browner assigned the first mentioned bill of sale to the defendants.
    The bill of sale to Fowler and Lyons was absolute in form but was made upon the understanding that they were to allow the plaintiff to retain possession of the store and conduct the business as she had before, and from the proceeds of the business pay Fowler and Lyons both their and Browner’s bills, and when these were paid Fowler and Lyons should retransfer the property to the plaintiff. It was understood that Fowler and Lyons were to give to plaintiff a separate writing to that effect, but they afterwards refused to do it. Both bills of sale were filed as mortgages in the proper clerk’s office.
    December 11, 1879, a constable having an execution against the plaintiff, duly issued upon a judgment which the plaintiff had suffered to be taken against her in the suit of one Johnson, levied upon the goods in the plaintiff’s store. Thereupon the defendants, Fowler and Lyons, brought an action in the nature of replevin against the constable for the possession of the goods, claiming to be entitled to their possession ; and the constable not giving the sheriff any undertaking to secure the return of the goods to him, the sheriff, who had taken them from the constable, delivered them to the defendants.
    The referee held that the bill of sale to Browner was valid as a mortgage; that the bill of sale to Fowler and Lyons was void, because they did not give the agreement in writing to the plaintiff as they had agreed; and, further held, that after allowing the amount due upon the execution held by the constable, and the amount due on the Browner bill of sale, the plaintiff had a special property in the balance for which she might recover against the defendants Fowler and Lyons, and directed judgment accordingly,

      G. E. Stephens, for the appellants.

      A. P. Smith, for the respondent.
   Landon, J.:

The bill of sale to Browner was good against the plaintiff, as a mortgage, in the hands of the defendants Fowlér and Lyons. Subject to the mortgage, plaintiff had a special interest in the property upon which the constable could levy. (Smith v. Beattie, 31 N. Y., 542; Hall v. Sampson, 35 id., 274; Hathaway v. Brayman, 42 id., 322; Hull v. Carnley, 11 id., 501, and 17 id., 202; Goulet v. Asseler, 22 id., 225.)

Passing by the bill of sale to Fowler and Lyons, at the date of their taking the goods from the constable, they, as the assignees of the bill of sale to Browner, were the owners of the goods, subject to plaintiff’s special interest. That special interest the constable levied upon, and by virtue of it took possession of the goods. So that when the defendants took the goods from the constable the plaintiff had neither possession nor the right of possession. We have been constrained to hold in the replevin case of Fowler and Lyons against Haynes, these defendants against this constable, tried upon the same evidence and submitted upon appeal at the same time as the case now under discussion, that the constable, upon recovery by him, is entitled to recover the full amount of the special interest of the plaintiff in the goods levied upon, and not merely the amount of his execution. (Buck v. Remsen, 34 N. Y., 383.)

It follows therefore that the defendants are not also liable to the plaintiff for the value of the same special interest, for the constable’s possession excludes that of the plaintiff.

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

Learned, P. J., and Boakdman, J., concurred.

So ordered.


author: Learned, P. J.: Landon, J.

text:
    JOHN HANSEE, Respondent, v. GEORGE R. MEAD, Appellant.

      Sale of lands for tames — when the number of aeres mentioned, controls — Adverse possession — cannot be proved in an action of erjeatment unless pleaded.

    As in selling lands under chapter 298, of 1850, for the non-payment of taxes assessed thereon, only so much of each parcel was to he sold as would suffice to pay the amount of the tax, with the interest and charges thereon, the number of acres mentioned in the deed given in pursuance of such a sale must control, contrary to the usual rule in the case of conveyances made by an owner of the land. (Landón, J., dissenting.)
    The defendant in an action of ejectment cannot show as a defense, upon the trial, that he and his grantors have been in the uninterrupted adverse possession of the land for twenty-one years immediately preceding the commencement of the action, unless he has set up such adverse possession, as a defense in his answer. (Landon, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was one of ejectment. The plaintiff claimed to be the owner of the premises, described in the complaint, by virtue of a deed dated December 18, 1854, and given by the. judge and treasurer of Ulster county, upon a sale of the lands for non-payment of taxes, under chapter 298, of 1850.

      F. L. Westbrook, for the appellant.

      Sohoonmaker <& Linson, for the respondent.
   Learned, P. J.:

First. The appellant claims that the description in the deed given by the county officials is too indefinite. It is as follows: “Sixty acres to be laid out as aforesaid” (that is, at the expense of the grantee) “ being in a square form, as nearly as may be, in the north-west corner of lot No. 15 of the Connecticut tract,” etc. It appears that lot 15 is oblong; about twenty chains by fifty-one chains. It is nearly rectangular. Its sides run about northwest and south-east. Its ends about north-east and south-west. The plaintiff claims to lay out his sixty acres by running a line, parallel to the north-westerly end, or northerly end, as it might be called. There is a corner which might be called a north corner and another which might be called a west corner. But neither of these is accurately a north-west corner. However, as laid out, the sixty acres lie equally in both these corners; and they are in a square form, as near as may be. We think it plain that, if the sixty acres can be laid out at all, they are properly laid out as claimed by plaintiff. And though the shape is not exactly rectangular, or equilateral, yet it is laid out “ in a square form as nearly as may be.” The system of such a sale for taxes is to sell a certain quantity of the property. And therefore the number of acres mentioned must control; contrary to the usual rule in cases of conveyances by an owner.

The defendant insists that all which could be taken would be a square, as near as might be in the corner, reaching from that corner half way to the opposite corner. This would be a piece about ten chains square; much less than sixty acres. We think that is not the meaning of the deed; and that the description was sufficiently definite and the land properly laid out by the plaintiff. (Jackson v. Vickory, 1 Wend., 415; Bartlett v. Judd, 21 N. Y., 204; Digert v. Pletts, 25 Wend., 404.)

Next. The defendant insists that the deed from Boyce to Hansee did not convey this land. The description is: Sixty acres in the west part of lot No. 15,” “in the Connecticut tract.” But it sufficiently appears that, by a conveyance from the heirs and executor of O’Neill, the grantee from the officials, Boyce had become the owner of the land cobveyed by the tax deed. He had no title to any other land in lot No. 15, except what he bought from O’Neill. And it will be seen on examining the map that the language which describes these acres as being in the west part of 'No. 15, is quite accurate. It was enough to convey what he had in that lot, not exceeding sixty acres. And as this was the effect of the deed, proof of his intention, whether properly admitted, or not, could do no harm.

Next. It is not disputed on the argument that the deed is presumptive evidence of regularity. (Laws 1850, chap. 298, § 83 ; Laws 1866, chap. 820.) The referee holds that no one was in actual occupation at the expiration of the two years. And we see no reason to question the correctness of this finding. (Smith v. Sanger, 4 N. Y., 576; Thompson v. Burhans, 79 N. Y., 93.)

Next. The defendant offered to show that he and his grantors had been in uninterrupted possession for twenty-one years immediately prior to the commencement of the action. The objection was made that this was an attempt to set up adverse possession, and that such possession had not been pleaded. Some confusion arises on this point, owing to changes in practice. When, by the Revised Statute, writs of right, etc., were abolished (2 R. S., 843, § 24), and the action of ejectment was not only retained, but was made a substitute for these abolished writs; (2 R. S., 303, § 2) it was provided that the defendant might demur or might plead the general issue only. (2 R. S., 306, § 22.) Hence there could be no plea of the statute of limitations; as it would seem there had been to the writs of right. (3 Bl. Com., 306.) And the defense of adverse possession (2 R. S., 293, 294, §§ 5, 8, 9) was shown under the general issue.

The Revised Statutes, so far as I can discover, made no provision as to the pleading of the statute of limitations in personal actions; leaving this to the old rules of practice. And by these rules, generally, but perhaps not always, the statute must have been pleaded in personal actions.

In the action of ejectment it is sometimes considered that an adverse possession of twenty years in the defendant is not so much * a bar to the plaintiff’s right of action, as it is an acquisition of title in the defendant. And if such possession shows actual title in defendant, then it might be urged that it ife admissible under a general denial. Since the plaintiff must recover on the strength of his own title. But I do not know that adverse possession of land has. any other effect than to bar an opposing claimant’s- action, under Code Civil Procedure (§§ 365, 368). I know of no statute declaring that the possessor acquires title. .

Under the Code Civil Procedure the whole subject is under the head of “Limitations of 'the time of enforcing a civil remedy.” This includes not only actions for the recovery of real property, but also actions on a sealed instrument; (sec. 381) as to which by 2 Revised Statutes (301, § 48) there was only a presumption of payment. And as to all these limitations the sweeping provision is made that the objection can be taken only by answer. (Sec. 413.) I do not see how we can except from that section: that part of the chapter which applies to actions to recover real property. And for these reasons I think the judgment must be affirmed, with costs.

Landon, J.

(dissenting):

The plaintiff claims title under a deed given in 1853 by the public authorities, because of the non-payment of taxes assessed upon lot 15, etc. The description is, “ sixty ae>’es to be laid out in a square form as nearly as may be in the north-west corner of lot 15,” etc.

Lot 15 contains 101 acres. It is nearly rectangular in form; the two sides inclosing the north-west corner being respectively twenty chains and about fifty-one chains in length, and the remaining two sides of about equal length. It is obvious that the largest square that can be laid out within such a lot must be limited to twenty chains square. Such a square would contain forty acres. But the plaintiff has recovered sixty acres, being a rectangle twenty chains by thirty. Ilis title is a tax title, and by it he acquires no more than it actually conveys. As was said in Tallman v. White (2 N. Y., 70), a tax “ sale is a rigorous proceeding. It divests the owner of his title without his consent, and often for a very trivial consideration ” — in this case for eighty-three cents. The purchaser is not entitled to invoke for his protection those liberal rules for the interpretation of deeds which obtain between private parties in aid of a grant. (Jackson v. De Lancy, 13 Johns., 539; Mason v. White, 11 Barb., 187; Jackson v. Striker, 1 Johns. Cases, 284; Jackson v. Rosevelt, 13 Johns., 97; O'Donnells v. Lindsay, 39 Superior Ct., 537.) A leading rule of the interpretation of the description of land contained in deeds among private parties is, that that which is certain must prevail over that which is less so, and hence quantity, as the less certain call of the deed, often yields to courses and distances which are more certain, and these again to fixed natural objects which are still more certain. ( Wendell v. The People, 8 Wend., 183; Northrop v. Sumney, 27 Barb., 196; Higinbotham, v. Stoddard, 72 N. Y., 94.) It is apparent in this case that the quantity is the least certain call of the deed. A square can be laid out embracing the north-west corner, but such a square can contain only forty acres. To give the plaintiff sixty acres he must have a square and a-half, and the deed has not informed us where the half square shall be located. It should-be rejected as inconsistent with the. certain calls of the deed; especially so in the case of a tax title, where, for twenty-three years, there was no attempt to locate the land.

The defendant offered, but was not allowed, to prove that he and his grantors had been in the uninterrupted possession of the premises for twenty-one years immediately prior to the commencement of this action, claiming title under a conveyance.'

The -defendant, by his answer, denied the plaintiff’s title; he alleged his possession to be lawful, and alleged valid paper title in one Henry N. Mead, who died, and under his heirs defendant is in possession claiming title.

The exclusion of this testimony is sought to be sustained, upon the ground that the defendant did not plead either the statute of limitations, or adverse possession for twenty years. The statute of limitations, to be made available as a defense, should be affirmatively pleaded. (Code Civil Pro., § 413.) It is a technical defense and bars the plaintiff’s suit without disproving bis right and without respect to the defendant’s right. But adverse possession of sufficient length under a conveyance, disproves the plaintiff’s title.; it establishes the defendant’s right of possession, both of which issues this answer presents. It is not necessary to plead the evidence respecting these issues. The plaintiff must recover upon the strength of his own title. (Brady v. Hennion, 8 Bosw., 528; Wallace v. Swinton, 64 N. Y., 188.) And therefore defendant may, under the general issue, give in evidence whatever tends to disprove plaintiff’s allegar tion of title in himself. The proof offered “ went in denial of the truth of the complaint,” and that under the old form of pleadings was the test of the admissibility of evidence under the general issue. (Gould’s Pl., chap. 6, §44; 1 Chitty Pl., m. p., 497; Tyler Eject., 464; Boomer v. Koon, 6 Hun, 645; 2 R. S., 306, §§ 22, 23.)

I advise the reversal of the judgment.

Present — Learned, P. J.; Boabdman and Landon, JJ.

Judgment affirmed, with costs


author: Landón, J.: Boardman, J.:

text:
    TEUNIS P. OSTERHOUT, Respondent, v. THOMAS HYLAND and Others, Appellants. SAME v. JOHN RIGNEY and Others, Appellants. SAME v. OWEN TRODDEN and Others, Appellants. SAME v. DENNIS MURPHY and Others, Appellants. SAME v. PATRICK BUTLER and Others, Appellants. SAME v. CORNELIUS BRACKETT and Others, Appellants.

      Board of town auditors — cannot allow a claim disallowed by a former board — a taxpayer may restrain the payment of a claim so audited — 1873, chap. 161, as amended by 1879, chap. 526.
    In November, 1877, one Hyland, who had been a constable of the town of Kingston for the year ending in March, 1877, presented to the board of town auditors a bill against the town for the sum of $527.50. The board allowed. $166.66 of the bill and disallowed the balance, $860.84. In November, 1878, he presented a bill for the $360.84 disallowed by the former board to the new board, which allowed $200 thereof and disallowed the residue.

      Held, that the jurisdiction of the board of town auditors only extended to the audit and settlement of unaudited and open town charges, and that it had no authority to reopen and decide a case which had been already decided upon its merits by its predecessor.
    That as its reaudit of the claim was void for want of jurisdiction, a taxpayer of the town was entitled to bring an action under chapter 161 of 1872, as amended by chapter 526 of 1879, against the owner of the claim, the supervisor of the town and the board of supervisors to restrain the payment of the claim.
    That the payment of a claim might be so restrained when it appeared that there was included in the audit the whole or a portion of an old bill which had been previously presented and disallowed, though the exact amount so included could not be determined.

      Appeals from judgments in favor of the plaintiff, entered upon the report of a referee.

      F. L. Westbrook, for the appellants.

      M. Bchoonmaker and B. L. Btebbins, for the respondent.
   Landón, J.:

Of the six cases argued together the case of Hyland presents the questions material to be considered, in the simplest form. Hyland was a constable of the town of Kingston for the year ending March, 1877. In November, 1877, he presented an account against the town to its board of town auditors in the sum of $527.50. The board allowed $166.66 and disallowed $360.81. In November, 1878, he presented an account against the town for $360.81 to the board of town auditors and the board allowed $200 and disallowed the balance of it. The bill 'thiis presented was the same which had been disallowed the previous year.

The board of town auditors, in November, 1878, included this item of $200 in their certificate of the accounts audited by them, and which they delivered to the supervisor of the town who laid the same before the board of supervisors of the county of Ulster at their annual meeting in November, 1878. Before action was taken thereon by the supervisors this suit was begun; meanwhile Hyland had assigned the claim for the $200 audited in his favor to the defendant the Kingston National Bank.

The board of town auditors are not made defendants, but the action is against Hyland, and the bank, as assignee of his claim, the supervisor of the town of Kingston, and the board of supervisors'of the county. -The judgment appealed from adjudges the audit “ vacated, annulled and set aside,” and enjoins the payment of the amount to or by any defendant.

The supposed authority for this action is chapter 161, Laws 1872, being “an act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents.” It is proper to remark that no frand or wrongful act is alleged in the complaint against the board of town auditors, none is found by the learned referee. The act in terms creates no new duty or liability. It does not in anywise declare that to be unlawful which had theretofore been lawful, but it gives to a taxpayer the right to prosecute and maintain actions against the officers’ of any town, county or municipal corporation, “ to prevent waste or injury to any property, funds or estate ” thereof.

In Ayers v. Lawrence (59 N. Y., 192), the Court of Appeals, by a divided court, held that under its authorization a taxpayer could maintain an action against commissioners appointed under the general town bonding law, to restrain them from issuing bonds upon the credit of the town in aid of a railroad corporation; the alleged cause for the injunction being that the conditions prescribed by the act as precedent to the existence or creation of the authority to issue the bonds had not been duly complied with. That action was equitable in its character and sought preventive relief by injunction. But it sought it against ministerial officers. It is easy to see that if a ministerial officer, like a commissioner to issue bonds, having ostensible but not real authority, is not stayed in the threatened exercise of unauthorized power, irreparable injury is the result. The act of 1872 created a party plaintiff who could invoke the remedy. In Newton v. Keech (9 Hun, 355), also brought under this act, a collector was restrained from' paying to the railroad commissioner the money collected by tax to pay the interest upon such bonds, the Court of Appeals having declared the bonds invalid. The collector is simply a ministerial officer. In Latham v. Richards (12 Hun, 360), the’trustees of a village were restrained at the suit'of a taxpayer from making an unauthorized purchase of land for a cemetery, and thereby iricumng a debt forbidden by law. In the latter case regard being had to the grounds upon which the court placed its decision, the trustees, as to the act intended, were not even ministerial officers. They were destitute of color of right.

It may be conceded, however, and such no doubt is the intent and effect of the act of 1872, that it gives to the taxpayer the power to bring and maintain any action appropriate to be brought and maintained under the facts of each case, against town, county and municipal officers and agents, to prevent waste or injury to the property, funds or estate ” of the town, county or municipal 'corporation ; but it does not confound remedies as they have heretofore been administered. This new plaintiff has a locus standi in court as 'the champion of the public, but he brings with him no new weapons ; justice must be administered at his suit, according to his success in showing that he is entitled to any of the remedies by which the courts are wont to redress wrongs. This construction is not at variance with that given by the court in Ayers v. Lawrence. The learned judge who delivered the opinion in that case observes that the act must have a benign and liberal interpretation that it may be effective in preventing the gross frauds which are sometimes perpetrated by public officers, chief among which he instances the unauthorized issue of bonds, by which the taxation of the future is mortgaged. • lie says: The language of the body of the law is sufficiently comprehensive to embrace every wrong by which taxpayers may be prejudiced.” Again, the act was passed with a view to remedy the felt defect in the law and give the taxpayer a concurrent action with the corporation for the prevention or correction of the wrongs mentioned in it.” This certainly is no authority for an action in equity when there is an adequate remedy at law. It is rather a recognition of the fact that the wrong threatened by the ministerial officer may be prevented, and the error done by the judicial officer corrected. Under the interpretation .given the act by the Court of Appeals, the taxpayer may, by appropriate action, prevent the wrong of the one and correct the error of'the other.

A bill in equity, however, is not the appropriate remedy to correct the errors of boards and inferior tribunals acting judicially. (Guest v. City of Brooklyn, 69 N. Y., 506.)

Their decisions are in the nature of judgment:, and' like judgments should be reviewed by bringing into the appellate court the very proceeding itself; so that if it be found erroneous, it can be corrected or vacated, and if found to be right, it can be relegated to its proper function, and thenceforth be above the reach of successful attack. Public policy requires that the judgments of the tribunals constituted by the government shall not be attacked collaterally. There must be an end of strife, and that there may be an end, speedy, authoritative and just, the methods of review of proceedings, judicial in their nature, must be in the proceeding itself, and exclusive of every other.' In case, however, of a lack of jurisdiction in the body to make the decision, the decision may be attacked wherever it is asserted, for if there was no authorized body or court, there can be no authorized decision. (Lange v. Benedict, 73 N. Y., 12, 25.)

These elementary propositions lead to the conclusion, that to entitle the plaintiff to maintain this action, in the absence of fraud, it must be shown that the board of town auditors had no jurisdiction of the subject-matter, that is, had no lawful power to determine whether the bill should be allowed or not. (Hunt v. Hunt, 72 N. Y., 217, 229.) And further, that irreparable injury is or is to be the result.

The board of town auditors was created by chapter 305, Laws 1840 (3 Edms. Stat., 302), “ for the purpose of auditing and allowing the accounts of all charges and claims payable by their respective towns.”

1 Revised Statutes, 358, section 2, is as follows: “ The following shall be deemed town charges:

1. The compensation of town officers for services rendered for their respective towns.

2. The contingent expenses necessarily incurred for the use and benefit of the town.

3. The moneys authorized to be raised by the vote of a town meeting for any town purpose; and

4. Every sum directed by law to be raised for any town purpose.”

The defendant, Hyland, presented his bill to the board. The bill itself was not produced in evidence upon this trial, but from the very meager evidence with respect to it, it appears that it was made out in items and was for his services as a constable, and was fortified in whole or in part by the processes which he had served. It may be remarked here, that since the presumption is that public officers do their duty in accordance with law, and since the plaintiff has by this action attempted to rebut that assumption, the burden rested upon him to rebut it by proof.

The defendants had the certificates of the town auditors in their possession and as their warrants. These were their all-sufficient protection until the plaintiff by his affirmative evidence overthrew and destroyed them. The cases cited by the counsel for the plaintiff, to the effect that the jurisdiction of the court or judge of limited jurisdiction pronouncing-the judgment must affirmatively appear upon the record in order to sustain its validity, apply to judgments which are either under review upon appeal or are affirmatively wielded in derogation of another’s right. One may hold questionable judgments upon the same footing that he holds other property, for whatever he thinks they are worth. He may not be called upon at the pleasure of every challenger, and upon peril of their destruction, to show his own right or their validity. His title to them and their immunity from collateral attack are secure until he attempts or threatens to assert them as an aggressive force. Whoever then assails them must prove the facts that deprive them of the right to .exist. The cases relating to clouds upon title may be instanced in support of these propositions. This original bill could not be found for production upon the trial. The defendants were not its lawful custodians, and its non-production is not traced to Hyland or to his assignees. The presumption, therefore, is that this bill was regular in form. The first duty of the board was to determine whether it was a town charge within any one of the above statutory definitions. If it was then the board had jurisdiction of the subject-matter. The determination of this question within the rules laid down in Hunt v. Hunt (72 N. Y., 229) did not depend upon the question whether this particular bill, in view of its special and peculiar history, ought to be allowed or not, but whether such a bill in general may be considered by the board and allowed or disallowed as its special and peculiar history shall require. Bills of constables for certain services are town charges. When once finally settled and allowed or disallowed upon the merits there is no occasion to do it over again. That allowance or disallowance is in the nature of a judgment and can no more be reopened and decided some other way than a judgment can. (People v. Stocking, 50 Barb., 573; People ex rel. Smith v. Town Auditors of Delhi, 5 Hun, 647; People ex rel. Thomson v. Supervisors, 35 Barb., 408.) If it appeared upon the face of this bill, or in the evidence given upon the examination of it, that the bill had been disallowed upon its merits then the board did not have jurisdiction of it, for the board has jurisdiction to audit and allow unaudited and open accounts. The statute does not give the board jurisdiction to reopen and otherwise decide a case already decided. It gives jurisdiction to audit town charges not already audited.

The conclusion, is if this bill had been disallowed the previous year then this board had no jurisdiction of it; if it had not, this board had jurisdiction of it.

The burden rested upon the plaintiff upon this trial to prove affirmatively that it had been disallowed upon its merits the previous year. The referee finds, and his finding is supported by the evidence, that the bill of Hyland was the same which had been passed upon and disallowed by the previous board. The evidence is to the effect that this fact was known to this board. The presumption upon the evidence, and in the total absence of any effort to prove the contrary, is that the bill was disallowed upon the merits. (Stearns v. Admr. of Stearns, 32 Vt., 678.) If the fact had been suppressed it would afford evidence of fraud.

It follows that the judgment in the case of Hyland must be affirmed, with costs.

The cases of Dennis Murphy, Cornelius Brackett,- Owen Trodden and Patrick Butler stand upon the same state of facts in this-respect. The judgments in these cases must also be affirmed, with costs.

The ease of John Rigney presents the same question with respect, to part of the audit. He was an overseer of the poor. His entire bill was, as claimed, $4,325.75. Of this sum, $1,100 was for an old bill previously presented and disallowed. The rest was for-expenses and services in support of the poor. The board deducted $600 from the entire bill, and allowed the balance, $3,725.75. It may be that the whole of the old bill was allowed, and the deduction made from the new items. If this case were in the nature of' an appeal from the audit, it would be proper to send the case back to the auditors, with- instructions to strike out all of the old bill and audit the balance at such sum as the board should find to bé just. But we have shown that this action is not in the nature of an appeal, but an action to prevent the allowance and payment of a-claim which the board had no jurisdiction to audit, or, as we have-held in the case of this plaintiff against The Supervisors, in which the audit was fraudulent in part or in 'whole. "We think some allowance should have been made to Eigney. The referee rejected his entire claim because the good could not well be separated from the bad, and because the account, which it might be just in itself to-audit, was irregularly incurred and irregularly audited. We have-no doubt the account was irregularly incurred xand irregularly audited. Since this audit was made, the town of Kingston has been divided, and some parts of it set off to other towns. Unless Rigney can obtain relief in this action, it is difficult to see how he can escape unjust loss.

The town had the benefit of lai-ge expenditures made by him for the relief of the poor. These expenditures were made in good faith. This is an equitable action to prevent “ waste or injury to the property, funds or estate ” of the town, not by the rigid application of a technical rule to impose “ waste or injury ” upon the estate of this defendant. The expenses actually incurred and the services actually rendered by the defendant in the administration of his official duty should be, unless fraud shall be established, ascertained and allowed him. The provisions of the acts applicable to the towns in Ulster county for the relief of indigent persons (chap. 334, Laws 1845; chap. 245, Laws 1846), prescribe regulations which should have been pursued, but they do not forbid the audit and allowance to the defendant of the sum which the town ought in good faith to pay him.

The judgment as to Rigney is reversed, a new trial ordered, the reference discharged, costs to abide event, unless the defendants stipulate to deduct $1,100 from the amount of the audit, in which case judgment is directed that the audit be vacated as to $1,100 thereof, and stand valid as to the balance, without costs in this court.

Boardman, J.:

I think all the judgments should be affirmed, with costs.

Learned, P. J., concurs with Boardman, J., -and adds: “ I don’t think we can adjust Rigney’s claim; that is too much to ask. Ought the bill as audited to be paid ? If not, the judgment ought to be affirmed.”

Judgments affirmed, with costs.


text:
    JEREMIAH BRIDGES, as Supervisor of the Town of Liberty, Respondent, v THE BOARD OF SUPERVISORS OF SULLIVAN COUNTY, Appellant.

      Taxes upon the Hew York and Oswego Midland Railroad — to what portion thereof the towns are entitled under chapter 296 of 1874 — when an action lies by the town against the county to recover them — such action should he brought in the name of the supervisor of the town.

    Under chapter 296 of 1874, subjecting the real and personal property of the New York and Oswego Midland Railroad Company to taxation, and appropriating the amount of the county taxes to certain towns, to be applied towards the payment of the interest or principal on certain town bonds, such towns are only entitled to receive the taxes collected for county and town purposes, and not those collected for State purposes.
    Section 8 of the said act requires the collector to pay over the amount of such county taxes to the railroad commissioners of the town within five days from the time of collecting the same, and section 4 makes the collector and his sureties liable for any failure on his part so to pay over the said moneys.

      Held, that the remedy thereby given did not prevent the town from maintaining an action against the board of supervisors of the county to recover the amount of such taxes which had been paid to the county treasurer by the 'collector, pursuant to the directions of a warrant delivered to him by the board of supervisors for the collection of the tax.
    Such an action is properly brought in the name of the supervisor of the town.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      John F. Anderson, for the appellant.

      T. F. Bush, for the respondent.
   Landon, J.:

This action was brought by the plaintiff to recover in behalf of the town of Liberty certain moneys collected upon account of county taxes collected from the New York and Oswego Midland Railroad Company, which the plaintiff claims should have been paid to the railroad commissioners of the town of Liberty, but which, by virtue of the warrants issued by the defendants for the collection of taxes, were paid to the county treasurer of Sullivan county.

Prior to 1874 the property of said railroad company was exempt from taxation by virtue of chapter 398, Laws 1866, section 16, which reads as follows:

“And it is hereby further provided that the real and personal property of said corporation shall be exempt from taxation for State, county, town or municipal purposes until a single track of said road shall be completed and in operation, but the time of such exemption shall not exceed the term of ten years, nor shall this section ■ apply any road .now wholly or partly constructed which may be consolidated with this road.”

This exemption was repealed by virtue of chapter 296, Laws of 1874. This act reads as follows :

“An act to subject the real and personal property of the New York and Oswego Midland Railroad Company to taxation, and to appropriate the amount of the county taxes thereon to certain towns to be applied toward the payment of the interest or principal on certain town bonds.”

The following is a copy of the act:

“ Section 1. All laws and parts of laws, in so far as they exempt the property, real or personal, of the New York and Oswego Midland railroad corporation from taxation, are hereby repealed and the real and ¡personal property of said corporation are hereby made subject to State, county, town and municipal taxation.”

“ Sec. 2. All moneys to be collected upon the real and personal property of the said corporation, and upon said real property now or hereafter used or held, or which may hereafter be used or held by any receiver or successor of said corporation for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the New York and Oswego Midland railroad, are hereby, appropriated to said towns or municipalities, respectively, and shall be paid ovel' to the commissioners of such towns or municipalities, appointed pursuant to an act entitled ‘An act to facilitate the construction of the New York and Oswego Midland railroad, and to authorize towns to subscribe to the capital stock thereof, passed April 5, 1866, or any act supplemental thereto oramendatory thereof, and the said moneys shall be by said commissioners expended for and applied to the payment of the interest on said bonds or to the principal thereof.”

“ Sec. 3. It shall be the duty of the collector of taxes of each such town or municipality to pay over to the said commissioners of his town or municipality the amounts of the county taxes collected by him from the said corporation, on the real and personal propferty thereof, within five days from the time the same is collected, and the said commissioners shall give to the said collector a receipt for the amount of county taxes so received, which said receipt shall be returned to the treasurer of the county in which the said collector shall reside.

“Sec. 4. Collectors of taxes and the sureties on their official bonds, shall be liable for any neglect or failure to pay over to the said commissioners the amounts, or any part thereof, by the provisions of this act directed to be paid by such collectors of taxes to the said commissioners.

“ Sec. 5. This act shall take effect immediately.”

By virtue of this act there were collected upon the warrants delivered by the boards of supervisors of the county of Sullivan to the collector of the town of Liberty, State and county taxes for the years 1874,1875, 1876,1877 and 1878, levied upon the property of said railroad company, the aggregate sum of $2,303.26, which by virtue of the same warrant was paid to the county treasurer of said county. Of said sum, $745.93 were required of the county for State purposes. Before suit brought, demand was made of the board of supervisors and of the county treasurer, that the money be refunded to the town. This was refused. Judgment was given for the entire sum of $2,303.26, and interest from the time of the demand.

We cannot concur with the learned judge who tried the case, that the term “ county taxes,” employed in the act of 1874, embraces the taxes levied and collected, both for State and county purposes.

The act of 1866, exempting the property of the railroad from taxation, exempts it “from taxation for State, county, town or municipal purposes.”

One of the objects of the act' of 1874 is declared in the title to be “to appropriate the amount of the eoimty taxes to certain towns.”

The first section subjects the property of the railroad company to taxation' for “ State, county, town and municipal purposes.”

The second section appropriates the money collected from the company for “ county ” taxes, to the towns which have issued their bonds to aid the construction of the railroad.

The third section directs the collector to pay the county ” taxes to the railroad commissioners of such towns. .

The distinction between State and county taxes is shown by the evidence in this case, and the proportions of each given in exact sums.

It is apparent that the act exempting and the act imposing liability to taxation upon- the property of this railroad, exempted and imposed it for all public purposes.

The appropriation of the county taxes to the town seems to be a plain separation and appropriation of the amount raised for county purposes from the amounts raised for all the other purposes.

This is apparent in the title, and in the exact language of the appropriation. It is a consistent and reasonable scheme, and the causes moving thereto obvious.

To the extent of the State taxes and interest thereon, the judgment should be modified.

It is therefore unnecessary to inquire whether this act is contrary to the requirements of section 8, article 7 of the State Constitution, which ordains that no money shall be paid out of the treasury of the State or any of its funds, except in pursuance of an appropriation by law, and that every such law making an appropriation shall distinctly specify the sum appropriated and the object to which it is applied. (Phelps v. Williams, 5 Alb. Law. Jour., 204.)

It is objected by the defendants that this appropriation of the county taxes to the town of Liberty, interferes with the scheme of taxation devised by the Revised Statutes, and with the equalization of assessments between the several towns. If this were so it could not be material in the construction of ■ a plain law. But the act of 1874 rather affects the disposition of the taxes when raised than interferes with the usual methods of apportioning and levying them. By the act of 1874 the legislature subjected to taxation ' property previously exempt. In the county of Sullivan there are fifteen towns, through four of which this railroad passes ; of the four the town of Liberty had incurred a large debt to aid in creating this property. It does not seem unjust that this town should, in the appropriation of the taxes to be raised upon this property, be preferred before the towns which had not aided in its construction. Clearly, if all the money raised for county taxes upon the railroad property in the four towns through which it passes should be appropriated to those towns, the other towns would be in no worse condition than they would have been if the act of 1874 had not been passed.

It is objected that this action cannot be maintained, because the act of 1874, which bestows this new right upon the town of Liberty, also prescribes the remedy for its enforcement. Section 3 of the act makes it the duty of the collector to pay the amounts of the county taxes collected by him from the railroad property to the commissioners of said town. Section 4 of the act makes the collector and the sureties upon his bond liable for any failure to pay the money to the commissioners. It is not necessary to contest the position of the defendant’s counsel, which he has fortified so amply by authority, that where the statute creates a new right, and also prescribes the remedy to enforce it, the remedy prescribed is exclusive. The remedy, so far as any is prescribed, is against the collector. It may be doubtful whether any new remedy is given even against him. No statute was needed to declare that the collector and his sureties are liable upon the failure of the collector to perform his duty. But the collector has done no wrong. He had a warrant issued by the proper authority, regular on its face, and he obeyed it. (Chegaray v. Jenkins, 5 N. Y., 376; Field v. Parker, 4 Hun, 342.) In this respect this case differs from People ex rel. Martin v. Brown (55 N. Y., 180); greatly relied on by the defendants. In that case the collector disobeyed his warrant. In this case it was the defendants who instructed the collector.. They gave him the warrant regular in form, but erroneous in fact, whereby the money came to the hands of the county treasurer, instead of the railroad commissioners of the town. By means of this wrong the town has been injured. The statute prescribes no remedy, and therefore the plaintiff may have recourse to such as the common law affords.

We think the action was properly brought in the name of the supervisor. (Hathaway v. Town of Cincinnatus, 62 N, Y., 434; Town of Chautauqua v. Gifford, 8 Hun, 152.)

The statute appropriated the money to the town. The defendants directed its payment to the county treasurer. The issuing of the taix warrant was the corporate act of the county. (Newman v. Supervisors of Livingston, 45 N. Y., 676.) The county thus has acquired the money of the town which it has no right to withhold. (Union Nat. Bank v. The Mayor, 51 N. Y., 638; Bank of the Commonwealth v. The Mayor, 43 id., 184; Kingston Bank v. Eltinge, 40 id., 391.)

The judgment should be reduced $745.93 and interest from December 17, 1879, and thus modified affirmed, without costs in this court.

Learned, P. J\, and Boardman, J., concurred.

So ordered.


author: Learned, P. J.: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JAMES W. LYON and GROVE SMITH, Appellants.

      Constitution, art. 1, sea. 2 —jury trial — the legislature cannot arbitrarily make certain facts prima facie evidence of guilt— Excise law —1857, chap. 628,íe<!. 12 — the portion of it making certain facts prima facie evidence against the seller cf liquor is unconstitutional.

    The excise law of 1857, chapter 628, after authorizing the issuing of licenses for the sale of spirituous liquors or wines in quantities less than five gallons, but not to be drank upon the premises, provides that “whenever any person is seen to drink in such shop or house, out-house, yard or garden belonging thereto, any spirituous liquors or wines, forbidden to be drank therein, it shall be prima facie evidence that such spirituous liquor or wines were sold by the occupant of su'di premises, or his agent, with the intent that the same should be drank therein.”

      Held, that as the lawful act of a third person, with which the accused was not necessarily connected, was thereby made prima facie of his having committed a criminal offense, the law was unconstitutional, as it deprived the accused of his right to a trial by jury.
    Appeal from a judgment of tbe Court of Sessions of Broome county, entered upon the conviction of the defendants of a violation of the excise law in selling strong and spirituous liquors, with the intent that the same should be drank on the premises without a^ license, and also from an order denying a motion for a new trial made upon a case and exceptions.

      The defendants were indicted for selling strong and spirituous liquors, to.be drunlc in a room appertaining to their house or shop, without having obtained a license therefor. The court, on the trial, charged that if any person was seen to drink in such shop, etc., any spirituous liquors, etc., this was prima fade evidence that such spirituous liquors, etc., were sold by the occupant, or his agent, with intent that the same should be so drunk therein. Proof had been given that Lyon had a license to sell liquors in quantities less than five gallons; that sales had been made at the bar of his house in bottles, which bottles had been taken into a water-closet and the liquor there drunk; that sometimes persons had brought liquors from other places and had drunk it in this water-closet; that Lyon had forbidden such drinking; that notices'were posted in the store forbidding drinking on the premises. The defendants, in their own behalf, testified that they had never sold liquor with intent that it should be drunk on the premises.
    The question raised on this appeal respects the charge of the court; by which the fact of drinking in the water closet was charged to be-made by the statute prima fade evidencé of the sale by defendants, and of their intent that the liquor should be drunk on the premises. And the question arises on section 12, chapter 628, Laws 1857. J ,

      Alexa/nder Gumming, for the appellants.

      I). H. Carver, district-attorney, for the People.
   Learned, P. J.:

In Bertholf v. O’Reilly (74 N. Y., 509), the Court of Appeals repudiated the doctrine that a law can be pronounced invalid for the reason simply that it violates our notions of justice; and said that, if a law violates no constitutional provision, it is valid. They held that the legislature could make the owner of a building, who had done no unlawful, or prohibited act, liable for wrongs done by a person who had bought liquors therein ; and that a statute which thus- made a person, without fault, pay for the wrong-doing of another was not a violation of the Constitution. If then the owner of a building, who-has done nothing contrary to law, can be made civilly liable for the wrongs done by a person who has drunk liquor therein, though the owner was not a party to such drinking, it would seem to follow that the occupant of a building might, without violation of the Constitution, be made liable to a penalty for the act of drinking therein by some person without his consent. The statute in question, however, does not prescribe a penalty for the act of drinking in such a building. It only makes the act of drinking in a place, licensed for sale but not for drinking, prima facie evidence of a sale with intent, etc.; the sale with intent, etc., being the act for which a penalty is imposed.

In Hand v. Ballou (12 N. Y., 513), it was said that, in civil cases, the legislature can declare what shall be presumptive evidence. Such declaration, therefore-, was said not to be a violation of the Constitution, which secures the right of trial by jury in civil as well as in criminal cases. But this was only a presumption as to the regularity of proceedings prior to the execution of a comptroller’s deed. It was not a presumption as to the wrongful act of a defendant charged with having incurred a penalty.

In the present ease the defendant is charged with having sold liquors with intent that they should be drunk on the premises. It is his right to have the question, whether he did so or not, tried by a jury. That means that the jury are to determine, from their own judgment upon the facts legally given in evidence, whether or not the defendant is guilty. If the legislature can declare that a certain fact is prima facie evidence of the defendant’s guilt, such a declaration means that the jury must convict, unless the defendant explains away this evidence; and if they can declare a fact to be prima facie, it would seem to follow that they might declare it conclusive evidence.

Undoubtedly in many'instances, (very possibly in this instance,) drinking on the premises might take place under such circumstances that, the jury, (and any sensible man,) would be satisfied that the liquor must have been sold by the defendant with intent, etc.. And all the denial of the defendants might fail to overcome, in any fair mind, the weight of the circumstances. But this clause of the statute must stand, if at all, irrespective of any natural tendency in the fact of such, drinking to convince a jury of the defendant’s-guilt. To illustrate, if the legislature can legally enact such a clause, they might enact that the drinking of liquors a mile distant from such a house, or shop, should be prima facie evidence of a sale in such house, or shop, with intent that the liquor so sold should be drunk on the premises. Or again; they might enact that if a dead body were found in any house, that should be prima fa,oie evidence that the occupant of the house had murdered the deceased. Because the legislative enactment is merely arbitrary, and need have no regard to the connection, or want of connection, between the evidence and the conclusion which is to be proved.

It is urged on the part of the people that this clause of the statute is but analogous to certain common-law presumptions; such for instance as that the possession of recently stolen property affords a presumption that the possessor is guilty of the larceny. (Wills’ Circ. Ev., 53; Knickerbocker v. People, 43 N. Y., 177.) . But this presumption is only the natural inference which- the jury may properly draw from circumstances with which the party accused is connected. (3 Grreenl. Ev., § 31.) On the contrary this clause of the statute declares a fact, with which the accused is not necessarily connected, to be prima facie evidence of an illegal act of the accused and of the intent with which it was done. Thus this clause comes within the condemnation expressed by Judge Seuden, in Wynehamer v. People (13 N. Y., at pages 444 and seq.).

The learned judge who tried this case did not rest his charge on the presumption, which might arise from the circumstances under which these persons drank liquors in the water-closet, that the defendants must have sold the liquors with intent, etc. But he rested on this statute as making a rule of evidence applicable to these cases. And hence the question arises directly on the power of the legislature thus to control the effect of evidence on the minds of the jury.

In State v. Beswick (13 R. I., —; 23 Alb. Law Jour., 487), a statute came up for discussion, which declared that the notorious character of the premises, or the bad character of persons frequenting them, should be prima facie evidence that liquors were kept there for sale. The court held that the statute was unconstitutional, as violating the provision that one should not be deprived of life, •liberty or property except by the judgment of his peers or the law of the land. They held that the statute took away the right of the jury to pass judgment on the guilt of the accused. And, again, that to hold that the legislature could create artificial presumptions" of guilt was to take away from a judicial trial the very element which makes it judicial.

The case of State v. Thomas (47 Conn., 546; 23 Alb. Law Jour., 489) is not in direct conflict with this. There the statute was that one who should keep a place where it is reported that intoxicating liquors are kept for sale * * * should be fined. In that case the crime was for keeping a place having a certain repute. And in the present case, if the law had imposed a penalty directly on any man in whose house any liquors were drunk, a very different question would have arisen. However unwise such a law might have been, it would not have interfered with the right to a trial before a jury. The present law does. Because it punishes only for selling with intent, etc.; and it directs the jury to find that the defendant did sell with intent, etc., from a fact which. does not, or may not, convince their judgments of the defendant’s guilt.

So also the case of State v. Higgins (13 R. I., —; 24 Alb. Law Jour., 258) does not appear to be in conflict with State v. Beswiek (-ut supra). It would seem, in that case, that the statute made the sale, or keeping, of liquors, generally, .criminal; and it provided that evidence of the sale or keeping should be prima facie evidence, that such sale was illegal; thus requiring the defendant to show his license, if he had one. The court held that a person prosecuted for an act generally criminal may be required to show his license in defense, when there is evidence to show his guilt if he had no license. It will be seen- that this case only touches the old rule requiring a proof of a negative, when the- negative involved a criminal charge of neglect of duty. (1 Greenl. Ev., § 80; Commonwealth v. Thurlow, 24 Pick., 374.) And the principle of the decision is not really in conflict with that rule. It is that the act of selling liquors is generally criminal; and, therefore, that proof of that act puts the defendant on his defense.

And it will be seen that that decision does not apply to this present case. The act of drinking liquor' in a house or elsewhere is not criminal. Nor is even the mere permitting liquors to be drunk in one’s house, or shop, criminal. Therefore proof of that act in no way can put the defendant on his defense.

If the law under consideration declared it to be illegal to sell -liquors with intent that they should be drunk on the premises without a license, and had' declared that a sale of liquors with intent that they should be drunk on the premises should be prima facie evidence that the sale was illegal, then the case would have been like that last cited. It would have been merely a question whether the prosecution should, or should not, prove the want of a license.

JBut the present case is totally different. This law makes an act which is always lawful, done by one person, prima facie evidence that another person has committed a criminal offense. This we think cannot be done. And it may be noticed here that the case of State v. Beswick (ut supra) rests only on the constitutional provision that no one shall be deprived of life, liberty or property except, etc. While we have not only that provision, (Const, art.’ 1 § 6,) but the further provision declaring that the trial by jury shall remain inviolate. (Const., art. 1, § 2.) This must mean that the jury, not the legislature, shall judge whether the evidence proves the charge.

We think that the judgment and conviction should be reversed, and a new trial granted.

Landon, J.:

I concur. Prom aught that appears the defendant was convicted, notwithstanding upon the evidence the jury had reasonable doubts of his guilt. If so, his conviction was by the coercion of the statute, not by the judgment of his peers.

Present — Learned, P. J., and Landon, J.; Boardman, J., not acting.

/

Judgment and conviction reversed, and new trial granted.


author: Learned, P. J.: Boardman, J.: LANDON, J.:

text:
    ZEPHANIAH C. PLATT and CAROLINE A. DEILLE, Respondents, v. SAMUEL NEWCOMB and Others, Appellants.

      Mortgagin' — when estopped hy statements of the mortgagee made when selling the mortgage as the mortgagor’s agent.

    Where a mortgagee, to whom a bond and mortgage have been delivered to be sold for the benefit of the mortgagor, sells the same at a usurious discount and represents to the purchaser that the bond and mortgage are good and valid securities in his hands, the mortgagor is estopped from showing that the mortgage is void for usury in an actio|L brought by the purchaser to foreclose it.

      Ahern v. Goodspeed (7% N. Y., 108) followed.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon the report of a referee.
    The action was brought to foreclose a mortgage. The defense was usury.
    The referee found that the bond and mortgage were executed without consideration and delivered to the mortgagee for the purpose of having them sold for the benefit of the mortgagor, no restrictions being placed upon the power to sell. That' the mortgagee in order to induce the plaintiff Platt to purchase them stated and represented to him that they were good and valid securities in his hands and covenanted and agreed that the whole amount thereof was due. That Platt believed this statement and understood that the bond and mortgage were owned by the mortgagee.
   Learned, P. J.:

The case of New York Life Insurance and Trust Company v. Beebe (7 N. Y., 364), is quite similar to the present. It was there held that the declarations of the mortgagee, in substance that the mortgage was given to secure a pre-existing debt did, in effect, deny that he was acting as agent for the mortgagor; and therefore that the mortgagor was not estopped thereby from showing that the mortgage was usurious. But that case was cited on the argument of Ahern v. Goodspeed (72 N. Y., 108), and seems to have been either disregarded or overruled. And this last case is like the present. There is no difference, except that the security sold, in the one, was a note and in the other was a bond and mortgage. The bond and mortgage, in tbe present case, like the note in Ahern v. Goodspeed, were without consideration until they were negotiated and they were .negotiated at a usurious rate.

The only question is whether the defendant is estopped iron, setting up usury by the statement made by the person who negotiated the security for him. And it seems somewhat inconsistent that he should be thus estopped, when the very statement that the mortgage was valid was, itself, a denial that the person who made it was an agent of the defendant. For, if the mortgage was, in fact, a valid security in the hands of the mortgagee, then he was not the agent of the mortgagor to sell it. And it is generally thought, that to create an estoppel in pais, the person, to whom the statement is made, must have relied upon it as the statement of the person estopped.

However, the case of Ahern v. Goodspeed necessarily holds that an estoppel may be created, although the person, to whom the statement is made, does not know that the person making it is the agent of the person estopped, and even where the statement itself implies a denial of such agency.

Following that decision we affirm the judgment, with costs.

Boardman, J.:

The mortgagee was the agent of the mortgagor however much he lied. His representation was therefore the mortgagor’s declaration and binds him just as much and just as fairly, as though the mortgagor himself had signed such a declaration to induce a third and innocent party to buy it.

In this way I concur in the affirmance of the judgment, with costs.

LANDON, J.:

I concur. I infer from thé evidence that the purpose of the mortgagor was to enable the mortgagee to represent to the buyer of the mortgage that it was a valid security in the mortgagee’s hands; thus the more readily to sell it. If so the mortgagor should not escape from the representation, upon the faith of which the plaintiff parted with his money.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THE NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Respondent. SAME v. THE NATIONAL FIRE INSURANCE COMPANY, in the City of New York, Respondent.

      .Taxation of corporations — 1880, chap. 542 — the object of the tax is sufficiently designated— Const., art. 3, sec. 20 — the first report is to be filed August 1, 1880 — only premiums received for insuring property situated in this State a/re taxable — the act is not void as regulating commerce, by taxing imports.

    The direction contained, in section 9 of chapter 542 of 1880, imposing taxes upon certain corporations, providing that “the taxes imposed by this act and the revenue derived therefrom shall be applicable to the. payment of the ordinary and current expenses of the State,” is a sufficient designation of the object to which the tax is to be applied, to satisfy the requirements of section 20 of of article 3 of the Constitution.
    The act was passed June 1, 1880, and took effect immediately. Section 5 provided that “ hereafter it shall be the duty of the president * * * of each and every insurance company * * * to make report in writing to the comptroller semi-annually, upon the first days of August and February in each year, setting forth the entire amount of premiums received on business done in .this State by such company or association during the six months ending the preceding first days of July and January,” and then imposed a tax upon the gross amount of the premiums so received.

      Held, that the act required a report to be filed on August 1, 1880, setting forth the premiums received from January 1, 1880, to July 1, 1880.
    That the tax must be paid as well upon premiums received before as upon those received after the passage of the act.
    That the words “ premiums received on business done in this State,” meant premiums received on property situated within this State.
    That the fact that the act imposed a tax upon premiums received for insuring imports in bonded warehouses, still in the original packages, did not render it void as being a regulation of commerce and in violation of the Constitution of the United States.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover the taxes imposed by chapter 542 of 1880, upon the defendant, a fire insurance company, which it had neglected and refused to pay.

      Leslie W. Bussell, attorney-general, for the people.

      Joseph II. Ghoate, for the respondents.
   Learned, P. J.:

The first question is whether chapter 512, Laws of 1880, is unconstitutional, in that it does not state the object to which the tax is to be applied. The language of the act is that the taxes “ shall be applicable to the payment of the ordinary and current expenses of the State.” Does that sufficiently state the object 2 The answer must depend on the degree of particularity which is required by the Constitution. In two cases this clause of the Constitution has been construed. A tax to defray “ the various contingent expenses legally chargeable ” to the city of New York and such expenses as the said city “may in any manner sustain or be put to by law” was held to be constitutional. (Sun Mutual Ins. Co. v. Mayor, etc., 5 Sandf., 10; affirmed, 8 N. Y., 211.) So too a law providing for a tax to be paid into- the treasury of the State, to the credit of the general fund. (People ex rel. Burrows v. Supervisors, 17 N. Y., 235.) Now the phrase, “ ordinary and current expenses of the State ”' is as definite as the phrase, “the various contingent expenses legally chargeable ” to a city, and is more definite than the phrase, “ such expenses as the city may in any manner sustain or be put to by law.” We think that the phrase “ the ordinary and current expenses of the State ” conveys a distinct idea of the object to which the money is to be applied.

It was so held in People ex rel. West. Ins. Co. v. Davenport (2d Dept., 25 Hun, 630). General words must necessarily be used, unless the act is to specify, in detail, every distinct expenditure which it was intended to cover. To do this would be useless.

The next question is on the meaning of section 5 of the act. The act was passed June 1, 1880, and took’ effect immediately. Section 5 declares that “hereafter” it shall be the duty of the president, etc., to make report in writing to the comptroller. This report is to be made semi-annually; and it is to be made on the first days of August and February in each year. Now it seems to us that, as the 1st of August, 1880, is after the 1st day of June, 1880, this section, (unless something else be shown,) required the defendant to make a report August. 1, 1880. The word “semiannually ” describes the frequency with which the reports are to be made.

That it is not inconsistent with a requirement that a report should be made August 1, 1880, appears by section 7. By this we can see that the legislature did not mean by “ semi-annually ” six months after the law was passed. The word is superfluous; just as it often is in bonds and mortgages ; in which interest is agreed to be paid, semi-annually, on the first day of January and the first day of July, -or the like. Section 5 continues to specify that the reports are to set forth the entire amount of premiums received, etc., “during the six months ending the preceding first days of July and January.” Of course it is not impossible that, under a law, passed June 1, 1880 a report should be required August 1, 1880 of the business during the six months ending July 1, 1880. But it is urged by defendant that, as a tax is imposed on the gross amount of these premiums, the act must not be construed to operate retroactively on the premiums received from January 1, to June 1, 1880. The defendant urges that it is unjust to levy a tax, based on the amount of past earnings, even though that tax is payable in the future. But there is no want of analogous cases. The law of the United States which imposed an income tax was passed August 5, 1861. Its forty-ninth section imposed a tax of three per cent on the income of the year- next preceding January 1, 1862, payable June 30, 1862. Thus it imposed a tax, expressly upon income received during a year, of which seven months had elapsed. The law of the next year passed July 1, 1862,' which imposed a much larger tax, made the income of the year ending December 31, 1862 subject to that larger tax, payable June 30, 1863. Thus a new tax was imposed upon the income of a year, of which six months had •elapsed.

The imposition of the tax is future.' The return' of income is but •a means of fair adjustment. No reason is suggested why the legislature, in imposing a tax upon insurance companies, might not take any method, which it thought just, of apportioning the tax. Every tax which is imposed by a new law is, in a certain sense, a tax upon past earnings. Because all property may be said to consist, in some form, of past earnings. So that when the legislature, as it often does, directs the levy of a tax of a certain rate upon property in the State, that property, in whatever form it may exist, must be, to a great extent, the accumulation of past earnings. And therefore according to the defendant’s argument, the tax is, to that extent, retroactive. To say that a legislature could tax only such property as is earned after the law is passed which imposes the tax would evidently be incorrect. And to say that a law is retroactive which taxes any property, other than such as is afterwards earned, is we think, equally erroneous.

This question is not one of power, hut of the meaning of the legislature. (People ex rel. Peake v. Suprs., 43 N. Y., 130, at 136.) When courts have construed statutes as having no retroactive effect, they have usually done so, because any other construction seemed to work injustice. It can hardly be doubted that the plain language of section 5, unless there be some outside reasoning to •change it, is that the companies are to make reports August 1, 1880, for the six mouths ending July first.

If we turn to sections 1 and 3 of the act, which provides for taxes on certain other companies, we find that these companies are to be taxed at a certain rate on their capital stock. This rate is to be detern*ined by a valuation, if no dividend has been made, and by the dividends made within the year prior to November one. Now the requirement on those companies to make a report on the fifteenth day •of November “thereafter” certainly includes November 15, 1880. And the first dividends which are to be reported are therefore those made from November 1, 1879, to November 1, 1880. A tax then is to be paid “ of one-quarter mill upon the capital stock for' each one per centum of dividend.” (Sec, 3.) A dividend can justly he made only from earnings. Any dividend made between November 1, 1879, and June 1, 1880, was made from past earnings, that is, from earnings prior to the passage of the act. And these, as the defendants’ counsel argues, may have been swept away by losses, or spent before the passage of the act. Yet a tax is laid which is based thereon. The defendants’ counsel urges that, in these sections 1 and 3, the dividends are not taxed but are taken as a test of ability to pay. Nor in section 5 are the premiums specifically taxed. A tax is laid on the company and on all its property, the amount of which is based upon the amount of the premiums. In no case under the act are the dividends or premiums themselves taxed. In all instances a tax is levied on the property of the company. The dividends in the one case, and the premiums in the other, are the measures of the liability to pay.

The same -intent of the legislature is shown in sections 6 and 7, by which a tax is imposed on the earnings of railroad companies and similar corporations. The first return is to be made August 1, 1880, and is to include the earnings of the six months next preceding ; of which four months are prior to the passage of the act.

This shows that the intention of the legislature was that this law, forming one scheme of taxation, should include past earnings in its estimate of the rate of tax imposed.

The defendants’ counsel cites People ex rel. Eastern Trans. Line v. Comr. Taxes (1st Dept., January, 1882). That case, following a case in the Second Department, holds that chapter 542, Laws of 1880, included only State taxes, and did not interfere with the power of local taxation. The case, so followed, is People ex rel. West. Ins. Co. v. Davenport. If this view be sound, still we do not see how these decisions affect the question whether, as to Státe taxes, there could be any taxation after June 1, 1880, except under this act. Section 8 provides that the capital stock and personal property shall hereafter be exempt from assessment or taxation, except as in this act prescribed. There is no difficulty in applying this section to companies in any county of the State, other than New York. Because the work of assessment and taxation, except in New York, begins after June first. In no other county than New York had any company been assessed, or paid taxes, for the year 1880. "We have no occasion here to decide as to the effect of that section 8 as to assessment and taxation in New York. Section 1 of chapter 332, Laws of 1881, has declared that they are not exempted. And section 2 has provided for the crediting to any company, taxable in New York, the amount paid by it, in case of taxation by both authorities.

We have already said that the construction claimed by the plaintiff does not make the law retroactive. But the opposite view is so strongly urged that it may be well to refer to the cases, cited by the defendant, to see how widely they differ from the present. Dash v. Van Kleeck (7 John, 502) (decided three to two) held that, where there was an existing cause of action, a statute giving a new defense should not, without express words, be held to apply. People ex rel. Peake v. Supervisors (43 N. Y., 130) held that an authority given to supervisors by one /section of an act, to raise money and pay bounties to volunteers, during the existence of the war, did not apply to soldiers who had previously enlisted. People ex rel. Pells v. Supervisors Ulster County (65 N. Y., 300); reversed (63 Barb., 83, sub. nom. People ex rel. Pitts v. Supervisors) and held», that an act for correcting of assessments was retroactive and did apply to the past as well as to the future. These are all the cases cited; and it will readily be seen that, as decisions, they do not sustain the defendant’s argument in this case.’ In none of the statutes therein construed was there such a positive direction as is found in this case. • “ Hereafter it shall be the duty of the president, etc., * * * to make a report semi-annually upon the first days of August and February in each year.”

The next question is as to the meaning of the words “ premiums •received on business done in this State.” We think these words are properly understood to embrace only premiums on property situated within the State. We see no other fair construction. If a policy is issued here and sent to an agent in another State and the money is received by him, could that be said to be business done in the State ? Or if the insured sent the money to the company would that alter the case ? Taking the words in connection with those used as to foreign companies who are to pay a tax on “ business transacted in this State,” we think that the defendant’s construction is correct.

Another question, less important in amount, but more important in the principles involved related to the tax upon premiums for insurance upon imports in bonded warehouses, still in the original packages. It is claimed by defendant that this tax is a violation of the United States Constitution. The case relied upon is that of Cook v. State of Pennsylvania (97 U. S., 566) in which it was held that a tax upon sales made by an auctioneer \ylien applied to imported goods in the original packages was void, as a duty on imports and a regulation of commerce. It was held that a tax on the amount of the sales was a tax on the goods sold. And it was admitted by the defendant that, if this was a tax on the goods, it could not be maintained. The difference between that case and the present is that the contract of insurance is a mere personal agreement between the parties. It does not effect the title to the goods, or their carriage from one place to another. A part of the right of ownership is the right to sell. When, then, the owner of goods in the original packages is directly, or indirectly taxed for the privilege of selling, foreign commerce is interfered with. So a tax on the carrying of freight is a tax upon commerce.. (State Freight Tax, 15 Wall., 232.) Such taxes affect, directly or indirectly, rights of ownership, which are the privilege of possession, of sale and of carriage. But a tax on insurance does nothing of that kind. Insurance is not a necessity to the dealing with property. One may own, sell and transport property without insuring it. The insurance is a mere bargain as to who shall suffer the loss, if the property be destroyed. And however common ■ insurance may be, it still remains a merely personal obligation, not affecting the thing insured. In Railway Receipts Tax case (15 Wall., 284) it was held that a statute imposing a tax on gross receipts of railroad companies was not unconstitutional; even' though those receipts were made up, in part, from freights on merchandise from one State to another. And in the dissenting Opinion by the same .justice who wrote the opinion in Cook v. Pennsylvania (ut supra), it is said that a railroad company differs from a coiporation for banking, insurance and manufacturing purposes; that their business is only remotely or incidentally connected with commerce. (Paul v. Virginia, 8 Wall., 168; Liverpool Ins. Co. v. Mass., 10 id., 566.)

For these reasons we think that the tax on premiums for insurance of goods in bonded warehouses was not a tax on imports or an interference with foreign commerce.

The judgment should be reversed and a new trial granted, costs to abide the event. .

■ Present — Learned, P. J., Boardman and Landon, JJ.

Judgments reversed and new trials granted, costs to abide event.