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    In the Matter of the Application of the MAYOR, etc., OF THE CITY OF NEW YORK, for the Appointment of Commissioners to Estimate and Appraise the Damages for Taking Certain Lands Designated in Chapter 522 of the Laws of 1884 for Parks and Park-ways.

      Constitution, art. 8, sec. 16 — when the title expresses the sulrjeat — 1884, ehcup. 522 is valid — Constitution, art. 3, see. 18 — a park-way is not a highway within the meaning of it — eminent domain — land lying outride of the city limits may be taken for pa/rk purposes — appraisal of damages by commissioners — duty of, to take evidence as to value — construction of the act — ■only a majority of the commissioners need agree— United States ('oust., and'. 1, sec. 10 — not violated by this exercise of the right of eminent domain — a right of action against the city is a sufficient remedy — when land used for a public purpose may be taken.

    The title of chapter 522 of 1884, providing for the laying out of public places and parks and park-ways in the city of New York, and in the adjacent district in Westchester county, sufficiently expresses the subjects embraced in it to satisfy the requirements of section 16 of article'3 of the Constitution.
    The fact that a portion of the land to be taken for the parks was, under the act, to be appropriated for a parade ground and rifle range, does not render the title insufficient or defective under the said constitutional provision.
    That portions of the act providing for the connection of the four parks, directed by the said act to be laid out, by broad park-ways or avenues, do not conflict with the provisions of section 18 of article 3 of the Constitution, prohibiting the legislature from laying out, opening, altering, working or discontinuing roads, highways or alleys by a private or local bill. '
    The fact that the whole of one of the parks, and the easterly portion of another, together with the park-way connecting them, lie outside of the limits of the city of New York, does not prevent the legislature from authorizing the city to acquire title to the land for park purposes. It is sufficient if they be so contiguous to the municipal territory as to be conveniently accessible by its population.
    The second section of the act made it the duty of the commissioners, to be appointed by the court, “after having viewed the said lands, tenements, hereditaments and premises, and after causing all such surveys, maps, profiles, plans and other things as they may judge necessary to be made, done and prepared for their use, to proceed with all due diligence to make a just and equitable estimate of the loss and damage to the respective owners, lessees, parties and persons respectively entitled to or interested in the said lands,, tenements, hereditaments and premises, and to report to the said Supreme Court without unnecessary delay.”

      Held, that the act could not be held unconstitutional because it failed to require the commissioners to take evidence as to the value of the property, or of any part of it; because,

      First. The Constitution does not, in express terms or by necessary implication, require that the commissioners shall take evidence as to the value of the property intended to be appropriated.

      Second. If it does require such evidence to be taken, then a direction for its being taken is to be implied from the direction contained in the act "to make a just and equitable estimate ” of the loss and damage.

      Third. That, in any event, a substantial hearing before the commissioners was secured by section 3, which required the report to be filed in a public office, and required the commissioners, in case written objections were filed thereto, to reconsider and, when necessary, to correct their report.
    An opportunity to review the action of the commissioners is also afforded to the property owners upon the application to the court for the confirmation of the report required by the second section of the act.'
    The Constitution does not require that the three commissioners shall concur in the estimates of the compensation to be made; the legislature may make the concurrence of two as valid and effectual as that of all.
    The act provided that “ all leases and other contracts in regard to said lands so taken for said park or park-ways, or any part thereof, and all covenants, contracts or engagements, between landlord and tenant, or any other contracting parties, shall, upon the confirmation of such report, respectively, cease and determine, and be absolutely discharged according to law.”

      Held, that this provision did not violate section 10 of article 1 of the United States Constitution, prohibiting the passage of a law impairing the obligation of contracts.
    A direction that within four months after the confirmation of the report the city of New York should pay the amount of the awards to the persons entitled to receive them, or, in default thereof, that the parties entitled to receive the same might sue for and recover the same, with lawful interest from and after demand thereof, together with the costs of the suit, is a sufficient provision for the payment of the awards to satisfy the requirements of the Constitution.
    The validity of the act is not affected by the fact that a small portion of one of the proposed parks has been devoted to another public use so long as the party entitled to so use it makes no objection.
    Motion for tlie appointment of commissioners to estimate tbe loss and damage to be occasioned by tbe taking of lands for tbe purposes of public parks and for park-ways, under chapter 522 of 1884.

      John E. Develvn, E. Henry Laomnbe, John H. Miller and John E. Wells, fo: tbe applicants.

      Cha/rles H. Roosevelt, John O. Shaw and I. M. Leavy, opposed.
   Daniels, J.:

the lands, the value of wbieb it is proposed to appraise by the intervention of appraisers, are described in section 1 of chapter 522 ■of the Laws of 1884. They are designed for six public parks, four of which it is intended to connect by means of public ways designated as park-ways. the application for their appointment has been resisted on the ground that the act, under which it has been made, was not enacted in conformity with requirements applicable to the subject, and contained in the Constitution of the State. A fundamental objection is presented upon the supposed insufficiency ■of the title of the act. It has been urged that this is defective under section 16 of article 3 of the Constitution, for the reason that its subject has not been expressed, as that is required to be, in the title. That the act is a local act has not been denied, and if this objection should be found to be sustained, then it must be held to be entirely inoperative. By the title, it was designated to be “an act laying out public places, parks and park-ways, in the twenty-third and twenty-fourth wards of the city of Néw York, ■and in the adjacent district in Westchester county, and authorizing the taking of the lands for the same,” and this seems to constitute an intelligent reference to all that has been designed to be accomplished by the enactment of the law. It includes but one subject with its incidents, that is, the appropriation of the lands and the purpose to which they are to be devoted. the lands are precisely located and described, and the objects to which they are to be appropriated are fully disclosed by the act, and these purposes and objects are included briefly in the title given to the act. For the purpose of complying with this provision of the Constitution no more than a general statement of the subject of the act has been required, and it. has, therefore, been held to be sufficient briefly to mention in the title the object or subject included in the law. (Matter of Van Antwerp, 56 N. Y., 261, 266; People ex rel. Comrs. v. Banks, 67 id., 568.)

Tbe circumstance that a portion of tbe land designated as Yan Cortlandt park is to be appropriated under the authority of section 6 of tbe act, for a parade ground and rifle range, will not deprive tbe title of its sufficiency, for tbe land so to be used will ■ still remain a portion of the park, to be maintained and enjoyed as such when not required for the use of the first division of the national guard, of the State, which is to be at liberty to use such portion for a military, parade, camp and drill ground and for rifle and target practice. The locality in which this land is to be appropriated for these particular uses will still remain and continue a park, but with these additional public uses imposed upon it. It will be at the same time a park with the right of thjs division of the national guard to use it in this manner when that may be required. This park is designed to consist-of over 1,000 acres of land, while the portion of it intended to be used by the national guard, is to be limited to about 120 acres, and that use is not to be exclusive, but to be enjoyed only for the special purposes mentioned in the act. The land still being a park is within the intelligent import of the title of the act as a , part of its subject, and the title may with propriety be held to be as broad as the Constitution requires it to be for a local act.

The park-ways designated and described in the act, are designed lor avenues uniting four of the parks. As they have been described, they are'peculiarly appropriate for that purpose, and may well be regarded as incidents to, or extensions of the areas of the parks themselves. The one uniting what has been designated as the Van Cortlandt and Bronx parks, is intended to consist of about eighty acres of land, devoted to a park-way 600 feet in width and nearly a mile in length. Another, similarly to unite the Bronx and Pelham parks, includes an appropriation of about 91 acres of land, exclusive of an existing boulevard. The width of this park-way will be 400 feet, and its length about two and one-half miles. The third is of minor importance, and is designed to serve as a similar avenue between what is called the Crotona and the Bronx parks.

So far as the act has provided f* r these park-ways it is objected to as contravening so much of section 18 of article 3 of the Constitution as prohibits the legislature, by any local bill, from laying out, opening, altering, working, or discontinuing roads, highways or alleys. But these avenues are not designed to be, and have not ^been, laid out or provided as roads or highways. Those terms have a fixed and definite significance including the public roads and highways only of the State, while these park-ways are designed, and to be used, as broad and convenient avenues, uniting the main portion1 of this system of parks. They are for the convenient passage of per.sons designing to use and enjoy the parks themselves, passing from one to the other, and not as public roads or highways, of this portion of the State. And for that reason the legislature was not prevented by this provision of the Constitution from designating and laying out these avenues. A point of a similar nature was considered in People ex rel. Seaver v. Green (52 How., 440), where it was held that this prohibition of the Constitution did not include a way of this description. The effect of this prohibition was further considered In Matter of Lexington Avenue (29 Hun, 303), where it was held that a public street of a city was not included within this provision of the Constitution. And that decision was affirmed by the Court of Appeals (92 N. Y., 629.) The same point again arose In Matter of Woolsey (95 N. Y., 135), and it was disposed of in the same way. If a street of a city is not within this part of the Constitution, then certainly a park-way intended for the mere purposes of passage from one of these designated parks to another, must be excluded from its operation, for such an avenue can, in no proper sense of the ténn, be held to be either a road or a highway. And not being within this prohibition of the Constitution, the legislature, under its general legislative authority, did have the power to designate and lay out these particular avenues or ways. And its power to do that was in no manner abridged by the fact that an existing highway was included as a portion of one of the park-ways for it was within the power of the legislature to subordinate it as a street, to this particular use. (Matter of Prospect Park, etc., R. R. Co., 67 N. Y., 371, 377.) The other objections taken to the act are all founded wholly upon the provisions and directions contained in it. It lias provided for the appointment, by this court, of three disinterested persons to act as commissioners in estimating the compensation to be paid to the owners of these lands, for the appropriation of their property in this manner. That the object to which the property is designed to be appropriated is not a public use, has not been, as it could not be seriously urged, for taking lands for this object is devoting them to a public use as that phrase has been employed in the Constitution. (Holt v. City of Summerville, 127 Mass., 408.)

It has, however, been urged that as the easterly portion of the Bronx park and all of Pelham park, together with their connecting park-way, are outside of the limits of the city of New York, that these lands cannot be appropriated to the use of its citizens. But neither the Constitution nor any statute of the State has required that lands to be taken for this object shall be within the corporate limits of 'the city, for the benefit of whose inhabitants they may be designed. All that can be required is that they shall be so contiguous to the municipal territory as to be conveniently accessible by its population for its use and enjoyment. And that such is the location of this property is to be assumed from the fact that the Pelham park, which is the farthest from the city, can be reached by traversing a distance of less than three miles beyond the present north-eastern boundary of the city. This land is directly accessible to the citizens by water, from the entire easterly front of the city, and if appropriated to this object will be readily accessible by means of other modes of conveyance which its appropriation will shortly and surely bring into existence. It is no more distant from the city than other parks are in other portions of the country, and at its present rate of increase in population the intervening territory must soon become a part of the city. At most, the appropriation of this land is but a short step into the future, and as it must be soon required for this object, if it is not wholly so at present, the time for obtaining, it has already arrived. For the recreation and enjoyment of the present inhabitants of the city it will be advantageous, and for those who are soon to follow them it will be indispensable. And to meet the present and prospective wants of the city, prudence requires that the property should now be obtained. Similar reasons in point of necessity justify it as have, already sustained the appropriation of land and water already to supply the necessities of the population of the city. That has been done at a greater distance beyond its boundaries than the land in question, and the authority to appropriate property in that manner, for those purposes, has neither been doubted nor denied, although the act under which it has been done has been before the courts for their consideration. (Dyckman v. Mayor, etc., 1 Seld., 434.)

The commissioners, in case of their appointment, have been required, after taking and subscribing the requisite oath, to view the lands, tenements, hereditaments and premises described, and after causing such surveys, maps, profiles, plans and other things as they may judge necessary to be made, done and prepared for their ■ use, to proceed with all due diligence to make a just and equitable estimate of tbe loss and damage to tbe respective owners, lessees, parties and persons respectively entitled to or interested in such lands, tenements, hereditaments and premises, and to report to the General Term of the Supreme Court without unnecessary delay. This provision has not directed the commissioners to take evidence concerning the value of the property, or any part of it, and the omission so to provide in direct terms is relied .upon as a fatal constitutional defect in the act. But if the taking of such evidence should be held to be an essential step in the proceeding, then it may be included within the direction given to the commissioners, to proceed and make a just and equitable estimate of the loss and damage sustained by the owners in the taking of their property, for whatever is essential to the performance of what the law requires to be done is necessarily included in the direction given for the attainment of the result. (Stief v. Hart, 1 Comst., 20, 30.) Where it was said, in the opinion of Jewett, C. J., that “ where the law commands a thing to be done it authorizes the performance of whatever may be necessary for executing its commands.” (Bouton v. City of Brooklyn, 15 Barb., 375.)

But the Constitution has neither in terms nor by fair implication required that the commissioners shall take evidence concerning the value of the property intended to be appropriated. What it has-required is that when private property shall be taken for public use the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” (Const., art. 1, § 7.) The commissioners have not been directed,” neither has the legislature been required to provide that they shall take evidence upon this subject,, but they have been left at liberty to proceed upon their own personal examination and investigation, and to act upon the knowledge or information obtained in that manner. This subject was considered in Kramer v. Cleveland etc., Railroad Company (5 Ohio, 140), where it was said in the prevailing opinion that “ it is no part of the duty of the appraisers to hear evidence or arguments.” •»**(£ ypey proceed upon actual view of the property taken or injured, and from the information thus derived make the appraisal or assessment.” (Id., 147.) In this respect the same duty has, in the same terms, been enjoined upon the commissioners, that was prescribed by section 378 of chapter 86 of the Laws of 1813, for commissioners to be appointed to appraise and estimate the damages for the appropriation of lands for the opening of streets in the city of New York. That act in a similar manner provided that “it shall be the duty of the said commissioners, after having viewed the lands, tenements, hereditaments and premises so required for the purpose of opening the said public square, or place, street, avenue or part, or section of a street or avenue, so to be opened, or for the purpose of laying out and forming the street or streets, or public place, so to be laid out and formed.” etc.; “ and after causing all such surveys, maps, profiles, plans and other things as they may judge necessary to be made, done and prepared for their use, to proceed to and make a just and equitable estimate and assessment of the loss and damage,” etc. (2 Revised Laws, 1813, 410.)

The proceedings so provided for were, for many years, earned on under this authority, after the provision already mentioned had been made a part of the Constitution of the State, and it was not supposed tofinfringe upon this restraint or any other contained in the Constitution. This long continuance of the exercise of authority and the acquiescence in the propriety of the provisions creating it, are very strong evidence that in giving such a direction this provision of the Constitution has not been violated, and that this portion of the act is in no manner in conflict with it.

But a substantial hearing before the commissioners xxpon the subject of compensation has been, in fact, provided for the owners of the land by the next section of the act. For it has directed that a true report, or transcript, of their estimates, shall be deposited by .them in the office of the commissioner of public works of the city of New York, for the inspection of whomsoever it may concern, at least fourteen days before they shall make their report to the court. “And any person or persons whose rights may be affected thereby, and who object to the same, or any part thereof, may, within ten days after the first publication ” of the notice provided for, “ set forth their objection to the same in writing, to the said commissioners, who shall thereupon reconsider their said estimate, .on the part or parts thereof so objected to, and in case the same «ball appear to them to * require correction, but not otherwise, they shall and may correct the same accordingly.” The notice required to be published by this section is one of fourteen days preceding the making of the commissioners report to the court, and it has been directed that it shall give a daily notice, by advertisement, for ten days after depositing the report or transcript of the estimate of such deposit in the office of the commissioner of public works. This déposit of the report or transcript, containing a statement of the estimates, together with the notice which it has directed shall be given, provides the owners of the property intended to be taken with ample means for discovering and contesting the estimates which the commissioners shall consider to be a fair equivalent for the land to be taken. And it will make them, as the notice previously provided for by the second section of the, act, preceding the application for the appointment of commissioners, will also make them, parties to the proceeding. And they constitute a substantial compliance with that part of section 6 of article 1 of the Constitution, which declares that no person shall be deprived of life, liberty or property, without due process of law.” For it has been held that personal notice is not necessary to answer this requirement of the Constitution, but it may be a notice given by publication, as that shall be deemed to be proper in the judgment of the legislature, and be prescribed by law. Campbell v. Evans (45 N. Y., 356, 359), Happy v. Mosher (48 id., 313, 317), Matter of De Peyster (80 id., 565, 572), Matter of Middletown (82 id., 196, 201) where it was said that “if opportunity to appear and be heard is secured, it is wholly within the power of the legislature to determine the form and time -and manner of notice to be given.”

These proceedings, provided for by section 3 of the act, supplies the owners intending to contest the estimates, or judgment of the commissioners, with an ample opportunity to do that. For it requires 'the commissioners to deposit their estimates, or a transcript thereof, in a public office, where they will be accessible to the parties interested in knowing what the estimates may be, and after-wards provides for the publication of such notice as will supply them with the information and enable them to present their objections, in case the estimates shall turp out to be insufficient 01 unsatisfactory. And in support of tbeir objections they will undoubtedly be at liberty to offer such proofs, by way of affidavits, as may, in their judgment, sustain the propriety of their objections. For where the right to object is reserved, as it has been in this manner, the right to make the objection intelligible and effectual is also included. It is no fatal objection to the proceeding that it has 'been provided that it shall take place after the commissioners have made their estimates of the compensation to be allowed. In that respect the proceeding is similar to that required to be followed by assessors throughout the State in making their assessments for the purposes of taxation. For they proceed, in the first instance, entirely upon their own judgment, and fix or sot down what may be considered by them as proper -valuations of the property to be assessed. And it is only after that has been done that the public notice has been required to be given, under which the owners of the property assessed may appear and object to the assessments. (1 R. S. [6th ed.], 937, § 18.) And the proceedings wlii-ch may be taken by the owner of the property, after the publication of such notice, has invariably been considered to secure to him all necessary protection against improper assessments on the part of the assessors. The fact that they had already designated the value of the property was not, in judgment of law, a circumstance affecting their qualification to reconsider their action upon the appearance and hearing of the owner of the property. The same theory has been followed in the enactment of the third section of the act of 1884. By its provisions all persons interested in the lands are secured an opportunity for appearing before the commissioners in support of what they may deem to be their own proper claims for- the taking of their property. But if the commissioners themselves, upon the reconsideration provided i/ for, fail to adjust their estimates as the owners affected by them may deem to be just, they are provided with a still further hearing' before the court. The notice directed to be published, in addition to a statement of the fact of the report or transcript of the estimates being deposited in the office of the commissioners of public works,, is also required to state the day on which the commissioners’ report will be presented to the court. The object of this part of the notice is to enable the owners of the property to appear before the court j and there contest the action of the commissioners. And the court is required to hear any matter which may be alleged against the same.” (Laws 1884, chap. 522, p. 630.)

This provision is precisely the same as was contained in the act of 1813, already referred to. That provided in the same terms for the confirmation of the report, or a reference of it to the same or other commissioners for revisal and correction, “ after hearing any matter which may be alleged against the same.” (2 Revised Laws, 1813, 413.) And the practice followed under that authority was the same as has already been suggested, that of presenting affidavits by the owners of the property contesting the correctness of the conclusions adopted by the commissioners. That was done, upon this subject of value, In Matter of Fourth Avenue, etc. (3 Wend., 452), where it was said in the opinion that one of the contestants “ produced the affidavits of several respectable and intelligent men who appear to be well acquainted with the value of real estate in this part of the city of New York and to be capable of estimating correctly the effect of the proposed improvements.” Similar proofs were prej sented and acted upon In Matter of John and Cherry Streets (19 Wend., 658, 662), and also In Matter of Thirty -ninth Street (,1 Hill, 191, 193). To allow such proofs this authority must have been considered so broad as to entitle the parties to bring to the attention of the court'all such information as may be necessary to enable it to determine whether any of the matters alleged against the report or estimates shall be well founded or no. And. if it could be done, as it has been under the same provision contained in the act of 1813, it certainly can be under the broader authority of the act of 1884, expressly providing for objections to be presented tp the commissioners and a reconsideration by them and a subsequent, hearing before the court, in which is tó be considered any matter which may be alleged against the report.

These provisions, under the authorities, secure to the owners of the property a very complete right to be heard upon the propriety of the estimates, which may be adopted by the commissioners. And if they can be shown to be erroneous, ample provision is made in this manner for their correction. The case is, therefore, in a marked manner distinguishable from that of Stxbart v. Palmer (74 N. Y., 183), where, by the act under which the assessment was made no hearing whatever was provided for the owners of the property, who were to be subjected to the assessment. While in this instance they have been secured a hearing before the commissioners them'selves, after their own inspection and observation of the property, and the acquisition of such information as may be obtained by them, to guide them in making proper and suitable estimates. By the twenty days notice of the application for the appointment of commissioners required to be first published, and the notice of the deposit of the report, or a transcript thereof, in the office of the commissioner of public works, and of the time when the report will be presented to the court, and the opportunity secured for making objections, and their subsequent consideration by the commissioners, and the still later hearing before the court, as complete an opportunity has been secured to the owners of the property for their protection as could reasonably be required, under these provisions of the Constitution of the State.

The authority of the act has been further assailed upon the ground that the legislature could not authorize a majority of the commissioners to conclude the owners in their estimates of value and their report to the court. But the Constitution has in no manner required the concurrence of the three commissioners, in the estimates to be made by them. It has not prescribed what their proceeding should be in this particular, and, accordingly, it was within the power of the legislature to designate and direct it. In this respect they have done no more than was directed by the' statutes for the incorporation and acquisition of property by'railroad companies. They proceed, in all cases, under the same authority of the Constitution, and yet a majority of them has been empowered by the statute to determine the compensation which ought to be made to the owner for the property taken from him for the construction of a railroad. (2 R. S. [6th ed.], 525, § 18.)

This course of proceeding has been followed for many years without serious doubt being suggested as to the power of the legislature to prescribe it. And precisely the same provision has been made by section 20 of chapter 606 of the Laws of 1875, for the construction and operation of other steam railways. Prior to the adoption of the present Constitution, the determination of a majority of the persons selected to appraise property taken for public purposes had been frequently authorized by the legislature. And in Oruger v. Hudson River Railroad Company (2 Kernan, 190) it was considered and held that it had not been superseded by this Constitution. The same point arose in Matter of Fourth Avenue (11 Abb., 189), where a like provision was held to be valid. And that view was followed in Astor v. Mayor (62 N. Y., 580, 586). The directions contained in section 8 of the act of 1884, authorizing two of the commissioners to perform the trust and duties of their appointments, was not probably designed to empower them to exercise their authority independently of the third. To determine its signification and effect, the other provisions of the act are also required to be considered, and those contained in section 2 plainly directs all three of the commissioners to act.together in making the estimates. They are all required to take the oath, and all are directed to proceed with due diligence to make a just and equitable estimate of the loss and damage of the owners, and they are all required to listen to and consider the objections authorized to be- made by section 3 of the act, and all are to join in the notice of the deposit of the report, or a transcript thereof, and of the time when it is to be presented to the court, and in case either of the three shall resign, become disqualified, or refuse to act, provision has been made by section 7 for the appointment of another commissioner in his place.

These parts of the act very clearly render it their duty to act together, and it is only when they shall be unable to reach an unanimous agreement, or estimate, that two have been authorized to act, arid this section should be considered and construed as only a further direction intended more fully to carry out that authority. For it is not to be presumed, unless the conclusion is very clearly maintained, that the legislature intended to violate the Constitution, as it would have done in the enactment of this provision, if two of the commissioners could proceed without the other in the discharge of the duties required to be performed by the three. A legislative act is never to be condemned upon a doubtful construction of its provisions. It is only in cases of clear and substantial departure from the provisions of the fundamental law that courts will declare acts of the legislature invalid.” (Gilbert Elevated R. R. Co., 3 Abb. N. C., 434, 439.) To avoid that result the provisions made by section 8 must be construed with those contained in the second section of the act, and as so construed may be rendered entirely harmonious with that section, as well as with the requirement made in the Constitution

The act also provides that£< all leases and other contracts in regard to said lands so taken for said park, or park-ways, or any part thereof, and all covenants, contracts or engagements, between landlord and tenant, or any other contracting parties, shall upon the confirmation of such report respectfully cease and determine and be absolutely discharged, according to law.” And for that reason it has been urged that it is in violation of so much of the Constitution of the United States as prohibits the States from passing any law imparing the obligation of contracts. But this restraint has not been considered as one affecting the right to take private property for public uses. It has, on the contrary, been held that all contracts and obligations relating to property mnst be regarded as having been entered into in subordination to that right, and to the duty to make compensation upon which it has been rendered dependent. (Brown v. Corey, 43 Penn. 495, 504; West River Bridge Co. v. Town of Brattleboro 6 How. [U. S.], 507, 532, 533, 538.) This objection, like the others to which attention has4" been directed, is therefore not entitled to be sustained.

The act has also been resisted upon the,further ground that no .proper provision, has been made for the payment of the estimates. But in this respect it is precisely the same as the provision made by section 183 of the act of 1813, already mentioned, for it has been provided by section 4 of the act of 1884 that within four calendar months after the confirmation of the report of the commissioners the mayor, aldermen, etc., shall pay to the parties entitled thereto the respective sums, estimated and reported in their favor, respectively, or in default thereof the right, to sue for and recover the amount from the city, has been given. This is an absolute and unqualified obligation providing for payment to be made, or in default of it an adequate remedy for its recovery; for if judgments should be recovered against the city for the compensation its authorities would be obliged, by the proper proceeding applicable to the object, to levy and collect by way of taxation the amount required to make the payment. And that is all that is necessary by way of providing for the making of compensation to the owner whose property may be taken. (Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend., 10; Rexford v. Knight, 1 Kern., 308, 313, 314.)

No uncertainty can attend the report of the commissioners made by complying with the directions contained in the act concerning the owners of the property, or their interest in it, so far as that may be ascertained. They have been directed to make a just and equitable estimate of the loss and damage of the owners, lessees and persons interested, etc., terms certainly broad enough to include every possible interest to be compensated by means of their estimates. (Watson v. K. Y. Central R. R. Co., 47 N. Y., 157, 161, 162.) And that they have been required to proceed as far as that, in ascertaining the parties interested in the property, is evident from the provision in section 5 directing that “the said commissioners shall include and set forth in their said report the names of the respective owners, lessees, parties and persons entitled unto or interested in said land, tenements, hereditaments and premises mentioned in the said report, and each and every part and parcel thereof, as far forth as the same shall be ascertained by them, and add a sufficient designation-and description of such respective lands and parcels of land aforesaid; and also, the several and respective sums estimated as and for the compensation and recompense or allowance to be made for the loss and damage of the respective owners of the fee or inheritance of such said lands, tenements, hereditaments and premises, respectively, and for the loss and damage of the respective owners of the leasehold estate, or their interest therein, separately.” This direction is so broad as to include all interests in the property, and if it could be made to depend upon the latter branch of the section containing it, by which owners of the fee are specially mentioned, it would still, under the authority of Watson v. New York Central Railroad Company (supra), be sufficient to include all interests in the property entitled to be compensated under the Constitution.

The directions contained in section' 10 of the act for obtaining by the sale of bonds the funds requisite to pay the damages, expenses, etc., are not liable to any substantial objection, because of the fact that the bonds must be sold for not less than their par value, and the rate of interest shall not exceed that of three per cent per annum. For it is not to be presumed that the city authorities will be incapable of realizing money by issuing and selling bonds subject to these restrictions. That cannot be determined until the bonds themselves are executed and placed upon the markets, as the statute has directed that to be done. But if the city should fail unde! these directions to obtain the money, the failure will not prejudice the rights of the persons entitled to payment of the estimates, as long as an absolute and unqualified obligation to make that payment has been imposed by the fourth section of the act upon the city, and in case the payments are not made within four calendar months, then subjecting it to an action or actions for the recovery of the moneys.

It is not very essential that the objections taken to the eleventh section of the act should be considered, for those contained in the preceding portions of it are entirely complete and adequate ' v the protection of the rights of the owners of the property. Even if section 11 should be held to violate section 17 of article 3 of the Constitution, it would not interfere with the execution of the law in other respects, and they are all that can be required for the appropriation of the property and the protection of the owners. If this section should be held to be inoperative it might, but not surely, effect simply the rights of the city of New York, and as no objection has been taken to it on the part of the city, the owners of the property who cannot be injuriously effected by it, are not at liberty to take that objection. But even if they could, the effect would be in the most extreme view which could be adoped to exclude this section from the act, and that exclusion would have no effect whatever upon the other provisions contained in it. (Matter of Middletown, supra.)

The fact that a small portion of one of the proposed parks has been already devoted to another public purpose is of no' consequence whatever in this proceeding, and need not be seriously considered as long as the party entitled to the right to use it for such other public purpose has made no objection whatever to the exercise of this statutory authority over it. The same answer may be made concerning the provisions of the statute for the protection of the rights and interests of unknown owners. They are the class of persons who shall not be ascertained by the investigations and diligent inquiry ” expected to be made in the discharge of their duties by the commissioners. As to them, the estimates which shall be made for their interests are required to be deposited for their benefit, and will be availably to them whenever they shall afterwards appear and apply for payment. And the same provisions have been made for the protection of the interests of married women and persons incapable of protecting themselves. In this manner complete justice will be done to all interests in the property which may be appropriated to either of these parks or park-ways.

Some further objections have been taken to the act and the proceedings proposed to be instituted under it, but they are not of sufficient importance to require special consideration. Those which appear to have been in any respect substantial have been considered with the care and detail required by the importance of the enterprise and the interests involved. Neither has appeared to be well founded, and they should, therefore, be overruled and the application allowed to result in the appointment of the commissioners required to carry into effect the provisions of the act.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Motion granted, and following named commissioners appointed; Luther R. Marsh, George W. Quintard, J. Seaver Page.


source: Caselaw Access Project

author: Daniels, J.: Brady, J.:

license: Public Domain

text:
    J. D. KURTZ CROOK, Appellant, v. LEOPOLD RINDSKOPF and Others, Respondents.

      General assignment — when a direction, invalid as to one class of creditors, renders it invalid as to all — when two pa/rtners cannot convert all their individual property into a common fund for the pro rata payment of their individual creditors.

    The defendants, who were partners, made a general assignment of all their property, the assignee being directed, after paying certain preferred debts, and all firm debts and liabilities, to apply the remainder and residue, if any, to the payment of the individual and private debts of the partners, providing that if such remainder should be insufficient to pay the said individual debts in full, that then the same should “be applied pro rata, share and share alike, to the payment of said debts, demands and liabilities, according to their respective amounts.” The partners owned, individually, different amounts of property, and their individual debts differed in amount:

      Meld, that as the individual estates and debts of the partners were unequal, the individual creditors of one would be defrauded by allowing their individual estate to be treated as a joint fund for the payment of all their debts.
    That the invalidity of this direction could be set up by a firm creditor, as he was hindered and delayed, though not defrauded thereby, and that the assignment should be set aside. (Brady, J., dissenting.)

      •O'Neil v. Salmon (25 How... 246); Smithy. Noward (20 id., 121), followed; Morrison v. Atwell (9 Bosw., 503); Scott y. Guthrie (10 id., 408); Fox y. Meath (16 Abb., 163) and Oox y. Platt 32 Barb., 127), not followed; Turner v. Jaycox (40 id., 164); affirmed 40 ÍT. Y., 470), distinguished.
    Appeal from a judgment in favor of the defendants, entered on the trial of this action before the court.
    . Edward T. Bartlett, for the appellant.

      Adolph 8. Scmger, for the respondents.
   Daniels, J.:

The plaintiff is a judgment creditor of the defendants Leopold Rindskopf and Meyer Rosenthal. Executions were issued upon his'judgments, being four in number, against the property of the debtors, which were returned unsatisfied, and the object of this action was to set aside as fraudulent an assignment which the judgment debtors executed and delivered to the defendant Abraham Rosenthal, for the benefit of their creditors. By the assignment they directed the assignee, out of the proceeds of their 1 property, first to pay certain preferred debts, and after that to pay with the residue and remainder of the net proceeds, if any there should be, all the other copartnership debts, demands and liabilities owing from the assignors, and if the residue of the proceeds should not be sufficient for that purpose, then to apply the same pro rata ■to the payment of such debts. By a further direction contained in the assignment the assignee was directed, with any residue or remainder of the net proceeds and avails of the assigned estate, to pay and discharge all the individual and private debts of the assignors. This direction is contained in the sixth paragraph of the assignment, which is as follows :

Sixth. By and with- the remainder and residue of said net proceeds and avails, if any there shall be, the party of the second part shall pay and discharge all the individual and private debts of the parties of the first part, or either of them, whether due or to become due, providing such remainder shall be sufficient for that purpose, and if insufficient, then the same shall be applied pro rata, share and share alike, to the payment of said debts, demands and liabilities, according to their respective amounts.” .

It appeared from the inventory executed, verified and filed after the assignment, that the assignors individually owed uneqal amounts of debts, and that the property individually owned by each of them was unequal, and by other evidence that their respective accounts with the partnership were likewise unequal, and it is because of this direction for the payment of their individual liabilities that the assignment has been assailed as fraudulent by the plaintiff. Compliance with this direction, if it should be carried into effect, would, so far as the individual indebtedness of one of the assignors should exceed that of the other, be to apply and appropriate a portion of his individual interest in the property to the payment of the creditors of the other debtor, for which such individual interest would not be legally liable. If one of the partners should be entitled to a larger sum than the other on the settlement of the partnership affairs, whatever that might be, it should legally be appropriated to the payment of his own debts; and in no event to the payment of those individually owed by the other partner. And a like consideration extends to their separate and individual property, which, according .,0 the inventory and the assignment, was intended to be vested in the assignee. That belonging to Rindskopf amounted only to the actual valué of ten dollars, while that belonging to Rosenthal is stated to be of the value of thirty dollars. The individual indebtedness of the former is placed at the sum of $4,600, and of the latter at the sum of $2,850. These amounts are small, but by the directions •contained in the assignment they are made a common fund for the payment of the individual, debts of each of the partners. In that manner a portion of the individual property of Rosenthal would necessarily be taken by means of this direction to pay in part the individual debts of Rindskopf, before payment of his own debts •should be made. And this was a fraudulent disposition of the individual property of at least one of the debtors. Whether this -direction, in this state of the affairs of the assignors, invalidated the entire assignment is the point upon which the disposition of this case depends.

The statute has declared that every assignment of any estate or interest in lands or goods or things in action, etc., made with intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, shall be void as against the persons hindered, delayed or defrauded. (3 R. S. [6th ed.], 145, § 1.) And it has been urged in support of the assignment, as the plaintiff is a creditor of the firm, and not of either of the individual partners, and the effect of the assignment may be to-devote additional property to the payment of his debts, or, in any event, that be will not be injured by this direction concerning the payment of the individual debts of the partners, that he cannot complain of it, inasmuch as he will not be hindered, delayed or defrauded thereby. But this is a construction of the statute which it probably was not intended to receive. For where an assignment of the debtor’s property may be fraudulent on account of one or more directions contained in it, there eyery creditor is certainly hindered or delayed by a fraudulent instrument. The property of the debtors in that manner is taken from their possession and control and placed in charge of an assignee, to be disposed of and administered by him in the settlement of the debts and claims of creditors. If the assignment is allowed to stand, then the creditors-will necessarily be delayed until that settlement shall take place. And that delay will result,where one or more of the directions may be unlawful, in hindering and delaying the creditor, although not actually thereby defrauded. And that, by the language of this section of the statute, would entitle him legally to complain of the validity and effect of the assignment. He would be hindered and delayed in the ordinary course of proceedings for the collection of his debts-by the interposition in his way of a fraudulent disposition of the-debtor’s property, aud, by the terms of the statute, would have the right to insist upon the fraudulent obstruction being removed. This was the view taken of a similar assignment in O’Neil v. Salmon (25 How., 246), where this subject was very thoroughly and fully examined. And also in Smith v. Howard (20 id., 121). And, in both these instances, assignments containing similar directions were held to be fraudulent at the suit of creditors entitled to-the satisfaction of their debts out of the joint estate of their ■debtors. This conclusion resulted from the general principle of law that where an instrument is by statute declared to be void for violating any of its restraints, it will be wholly void. For this purpose this statute does not require that all the directions contained in the instrument shall be of a fraudulent character, but it entitled the creditors to require it to be set aside when it may have been made with the intent to hinder, delay or defraud them, and an assignment having that effect as to any of the creditors, is included within the language as well as the intention of the statute. This point was considered in Mackie v. Cairns (5 Cow., 547), where it was held in general terms that a contract which was partially illegal. and void, as being in contravention of the provisions of a positive statute, was wholly so. And the same view was followed in Grover v. Wakeman (11 Wend., 187). It was also approved in Leitch v. Hollister (4 Comst., 211), where it was held that a fraudulent assignment might be avoided by any creditor, whether provided for or not, who had not voluntarily become a party to the trust, or by his own act ratified and confirmed it. It must, it was held, when executed, bind all or none of the creditors of the assignor. (Id., 215.) And that was evidently the view which was followed in Collomb v. Caldwell (16 N. Y., 484).

A different view of the effect of the statute upon an assignment of this description was adopted and followed in Morrison v. Atwell (9 Bosw., 503) and Scott v. Guthrie (10 id., 408). These two cases proceeded upon the conclusion that the firm creditors were not hindered, delayed or defrauded by like directions, and, therefore, could not complain of assignments containing them. But the other authorities are more in harmony with the directions contained in the statute upon this subject, which were intended to afford every creditor who should be hindered or delayed by an assignment containing a fraudulent direction or disposition of the debtor’s property the right to avoid and remove it. Every creditor is hindered and delayed by such a fraudulent instrument, even though the fraudulent direction itself may not directly prejudice him, for it stands in the way of the ordinary legal proceedings provided for the collection of his debts, and he is accordingly entitled to relief under this general provision of the statute. The cases of Fox v. Heath (16 Abb., 163) and Cox v. Platt (32 Barb., 127) are also in their theory opposed to this construction of the effect of the statute. But as they are plainly in conflict with the manner in which the courts have been required to proceed by the statute and the views maintained by the other authorities, they cannot now be allowed to sustain an assignment containing a fraudulent disposition of the debtor’s property, although that may only be partial in its character. Turner v. Jaycox (40 Barb., 164; affirmed, 40 N. Y., 470) in no way conflicts with these views. There the individual debts of the assignor were directed to be paid out of the surplus remaining after the partnership debts should be discharged. But as it was shown as a fact that neither of the assignors owed individual debts and owned no individual property, the presumption of fraud arising upon this direction was held to be removed and out of the case. In the present case the fraudulent direction contained in the assignment is incapable of being answered or excused in that manner. For these assignors did owe individual debts, which, to a certain extent at least, could be benefited on the one hand and injured on the other, by carrying the fraudulent direction into effect. It remained as a substantial attribute in the transaction through which the debtors attempted to divest themselves of their property. And under the statute, as well as the more controlling authorities following it, this assignment should have been held to have been • fraudulent and void.

The judgment in the case should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.

Davis, P.. J., concurred.

Brady, J.:

If the provision discussed created a presumption of fraudulent intent it was not conclusive, it was one which could be shown by evidence. (Turner v. Jaycox, 40 N. Y., 475.) In this case it was shown (sec. D) that the partnership property was hot sufficient to pay the partnership debts. This overcame the presumption suggested.

I dissent therefore.

Judgment reversed, new trial ordered, costs to plaintiff to abide event.


author: Daniels, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZA PERKERSON, Respondent, v. THE SISTERS OF THE ORDER OF ST. DOMINICK, Appellants. (Matter of the Custody of ANNIE HOLTEN.)
    Habeas corpus — the sufficiency of the evidence upon which the relator was committed cannot he examined into — what evidence justifies the commitment of a child: as a vagrant — Penal Code, sec. 291.
    Where a vagrant or destitute child has been committed to a charitable or reformatory institution by a police justice, as provided in section 291 of the Penal Code, the sufficiency of the evidence upon whieh the commitment was issued cannot be examined into upon a return to a writ of habeas corpus or ceri'twrairi issued upon the application of the child.
    An affidavit, stating that on a day named, “ at the city of New York, one Annie Holton, a female child, Actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms in Centre street, iu violation of section 291 of the Penal Code,” is sufficient to authorize the commitment of the child by the justice.
    Appeal from an order discharging Annie Holten from the custody of the Sisters of the Order of St. Dominick.

      Elbridge T. Gerry, for the appellants.

      James Oliver, for the respondent
   Daniels, J.

Annie Holten, the person discharged, had been committed to the custody of the sisters of the order by a commitment of one of the police justices of the city of New York. She was so committed for violating subdivision 2 of section 291 of the Penal Code of the State. By that section a female child, actually or apparently under the age of fourteen years, who is found begging or receiving, or soliciting alms in any manner, or under any pretense, may, by subdivision 5, be arrested and brought before a court or magistrate as a vagrant, disorderly or destitute child, and tbe court or magistrate ■ is authorized to commit tbe child to any charitable, reformatory or other institution authorized by law to receive and take charge of minors. No controversy bas been made as to tbe authority of .the sisters of the order to receive the custody of the child under these provisions of the Penal Code. Neither was the commitment under which she was consigned to their custody in any manner informal or defective in carrying out these directions of the law. But still an application was made by the petitioner for a writ of habeas corpus and certiorari to discharge the child from the custody of the sisters. These writs were each issued, the habeas corpus to the sisters themselves, and the certiorari to the police justice before whom the child had been taken and who had committed her to the custody of the order. The habeas corpus was returned with the commitment as the authority under which the child was detained, and the police justice returned the sworn complaint or evidence, produced before him, upon which he determined the case to be within this section of the statute. Upon the hearing before the judge issuing the writ an order was made discharging the child from custody, and it is from that order that the appeal has been taken.

The proceedings seem to have been instituted and the hearing aiterwards had upon the supposition that the judge issuing the writs could, by means of them, review the hearing had before the justice, and determine whether he had or had not acted' upon sufficient evidence in making the order resulting in the commitment of the' child. It was, in other words, designed’ that the judge should review the hearing, not by means of an appeal or a certiorari, bringing it before a court for that purpose, but through a collateral application, and to consider and decide whether the justice had of had not erred in the conclusion adopted by him. The proceedings authorized by the statute were not designed for this purpose. Another and an entirely different course has been prescribed to review a hearing which may have taken place in the course of legal proceedings under a statutory authority of this description. The law regulating the proceedings by habeas corpus has neither in terms nor by implication authorized or sanctioned the consideration of the evidence submitted to the magistrate, upon which he may have finally decided a case of this description, to have been made out and proved. The provisions contained in the .habeas corpus act furnish no authority, after a final determination has been made by the magistrate, for requiring him, in answer to a writ of certiorari, to certify and return the evidence taken before him to a judge or court proceeding under the authority of this act. What is to be done under and by virtue of the writ of habeas corpus, when it may be lawfully issued, has been clearly defined and prescribed, and a certiorari has only been provided for in place of the habeas corpus itself, and when that writ may not prudently be issued. (Code, § 2041.) When the writ of certiorari is issued, it is to be directed in like manner as the habeas corpus itself to the person having the custody of the individual whose discharge is the object of the application (Code, §§ 2021, 2022), and the object designed to be accomplished by each writ is precisely the same, that is, to require a statement of the time and cause of the imprisonment and detention of the individual whose discharge is to be applied ior. in this respect the form of each writ, as well as the directions and authority given concerning them, are,the same as were, previous to the Code, contained in the Revised Statutes of the State. 3 R. S. [6th ed.], 876, §§ 41, 42.)

By no provision and no construction has any authority been given to the judge to issue a certiorari for the purpose of bringing before himself, or before the court, where the hearing is to take place, the evidence upon which a final determination may have been made by the court, or officer, before which the proceeding has taken place, and that such a review was neither contemplated nor intended, clearly results from the directions contained in section 2032 of the Code. For that has directed that the court, or judge, must forthwith make a final order to remand the prisoner if it appears that'he is detained in custody by virtue of a mandate issued by a court, or judge of the United States, having exclusive jurisdiction of the ^ase, or second, by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal made in a special proceeding instituted for any cause, except to punish him for a contempt, or by virtue of an execution or other process issued upon such judgment, decree or final order. These directions exclude, by necessary and clear implication, the authority to inquire into the force and effect of the evidence upon which the determination may have been made. They are no more than.a repetition'of those previously contained in the Revised Statutes. And this construction is further sustained by those contained in section 2033 of the Code, declaring the cases in which the person may be relieved from imprisonment, neither of which includes or justifies a review of the evidence resulting in the judgment or order of the court or officer's. Even the much criticised case of People ex rel. Tweed v. Liscomb (60 N. Y., 559) does not permit an inquiry into the effect of the evidence to be made. For, by that, it was held that the court, or officer, could not go behind the judgment and inquire into errors or irregularities preceding it, to determine whether it had been properly entered or not, but was confined to the judgment and process itself in the hearing and decision which might be made.

The point whether a court or officer could go beyond the commitment or order set forth in its recitals, to determine whether it was justified by the evidence, has been often examined in other cases, where it has been held that such a proceeding was wholly unauthorized. (Stewart's Case, 1 Abb., 210; Matter of Prime, 1 Barb., 340; Gray's Case, 11 Abb., 56; Bennac v. People, 4 Barb., 31; Case of Twelve Commitments, 19 Abb., 394; Case of Williamson, id., 413.) The statute required no more to take place before the magistrate than appears by the commitment to have been done. For it has simply provided that when a child shall be brought before him for a hearing, he may commit it to such an institution as is maintained by the appellant. No other or more formal proceeding than that which took place has been provided, and by the recitals in the commitment all the requirements contained in the statute appear to have been observed.

If, however, any investigation under the habeas corpus apt can be made into the sufficiency of the evidence before the magistrate, then that which was taken was sufficient to comply with the requirements of the statute. The form in which it should be taken has not been prescribed, and it has accordingly in an uncontested case been left very much to the discretion of the magistrate. It was taken by him in writing, subscribed and sworn to by the witness, and established all that was required to justify the commitment which was made. It was in the following form :

STATE OF NEW YORE, ) City and County of New York, ss.*

John F. Potter, of Earl’s hotel, Canal and Centre streets, being duly sworn, deposes and says, that on the 14th day of January, 1884, at the city of New York, in the county of New York, one Annie Holton, a female child, actually and apparently under the age of fourteen years, to wit, aged twelve years, was found begging, receiving and soliciting alms in Centre street in violation of section 291 of the Penal Code.

Therefore, deponent prays said child may be committed to some institute.

JOHN F. POTTER.

Sworn to before me, this ^ 30th day of January, 1884-]

P. Gr. Duffy,

Police Justice.

and fully sustained the conclusions of the magistrate and justified the commitment which was issued by him.

The order should be reversed, both write dismissed, and the child recommitted to the custody of the appellant.

Davis, P. J., concurred; Brady, J., concurred in the result.

Order reversed, writ dismissed, and child recommitted to custody of appellant.


author: DANIELS, J.:

text:
    BOLTON HALL and Others, Appellants, v. THE UNITED STATES REFLECTOR COMPANY, Respondent.

      Fees of sheriff on attaching property — when the judge cannot compel the party liable therefor to pay them — Code of Oiml Procedure, sec. 3307, sub. 2 — when the shes'iff ceases to hold the property for the attaching creditor— election of remedies.

    The amendment made to subdivision 2 of section 3307 of the Code of Civil Procedure, in i 884, which authorizes the judge, upon making an allowance to the sheriff for his trouble and expenses in taking possession of and preserving attached property, to make an order requiring the party liable therefor to pay the same to the sheriff, did not authorize such an order to be made in cases where the bills had been settled and the allowances made before the passage of the amendatory act ; it only applied to cases-in which such allowance should be subsequently made.
    After a sheriff has been notified by the plaintiffs in an action, of the release of the property seized and held by him under an attachment issued upon their application, except as it might be held for the purpose of satisfying any lien he might have thereon for his charges and expenses previously -accrued, he ceases to hold the property under their authority, and they cannot he compelled to pay him for the cost and expenses incurred by his subsequent retention thereof.
    If a sheriff brings an action to foreclose a lien, claimed.to exist in his favor, for costs and expenses incurred in taking and preserving property under an attachment, he cannot thereafter, and during the pendency thereof, apply for the order provided for in the said amendment to subdivision 2 of section 3307 of the Code of Civil Procedure, as the two remedies are inconsistent.
    Appeal from an order adjusting tlie sheriff fees and expenses under certain attachments, and directing the same to be paid by the plaintiffs.
    ■ William G. Hornblower and Joseph, 8. Auerbach, for the appellants.

      Edward P. Wilder, for the respondent.
   DANIELS, J.:

The plaintiffs commenced two actions against the defendant and procured attachments to be issued in each, under which its property was seized by the sheriff of the city and county of New York. The property remained in the possession of the sheriff under the attachments until the 9th of May, 1883, when notice was served upon him by the attorneys for the plaintiffs, releasing the attachments from the property seized, except for the purpose of satisfying any lien the sheriff had upon the same for charges and expenses which had previously accrued. And notice of such release appears very soon afterwards to have been received by the defendant. A demand of the property was thereupon made in its behalf from the sheriff, who refused to deliver it, and an action was commenced against him for its alleged conversion. The sheriff’s fees and expenses were adjusted by the judge allowing the attachments on two different occasions, and upon the second adjustment so made a balance remained due to the sheriff on the 1st day of June, 1883, of $5,429.78, which the judge ordered the plaintiffs to pay. From this order an appeal was taken to the General Term, where it was reversed on the ground that no authority was vested in the judge to give that direction. (Hall v. U. S. Reflector Co., 31 Hun, 609.) And that decision was afterwards affirmed by the Court of Appeals. The adjustment of the fees a,nd expenses, however, was in no manner changed, which left this balance due to the sheriff for his services and expenses under the attachments.

The sheriff retained the possession, because of the non-payment of his bill, until the 11th of June, 1884, when he presented a further bill amounting to the sum of $3,825.50, and that was in like manner adjusted by the justice ■ allowing the attachments. And an order was then made requiring the plaintiffs not only to pay this additional bill, but also the balance remaining unpaid on the two preceding bills. This order was made under the authority of chapter 462 of the Laws of 1884, amending subdivision 2 of section 3307 of the Code of Civil Procedure in such a manner as to permit the judge adjusting the sheriff’s bill to order payment thereof by the party liable therefor. This authority was vested in him as a part of that permitted to be exercised in the adjustment of the bill. It was not made applicable to bills which had previously been adjusted, but to those which might be adjusted under its authority. It was prospective in its character, and necessarily related to proceedings, after its enactment, to be taken before the judge. As it did not provide • that he might order bills previously adjusted to be paid by the party deemed to be liable, the power to do that was excluded and they were left to depend upon the rights and liabilities of the parties, as that might be otherwise determined in the course of proper legal proceedings. 'When the matter was brought before the judge, therefore, after the enactment of this statute, he had no power under its provisions to go back to the bills already adjusted and direct them to be paid by the plaintiffs, even though they may be liable to the sheriff to make such payment. His authority over those bills was exhausted at the time when he finally acted upon them, and that was simply to adjust the amount to which the sheriff was entitled, leaving him to his remedy for their collection, as that was otherwise provided by law. So far as the plaintiffs were directed by the order of June,, 1884, to pay these preceding bills, it was without authority and cannot be sustained.

The bill presented for expenses, arising after the adjustment of the preceding bills, arose entirely out of the detention of the property by the sheriff after the plaintiffs had released their attachments. From that time he ceased to hold the property under their authority. They simply left it in his hands for the purpose of satisfying his already accrued lien for charges and expenses thereon. From that time he ceased to hold the property at their instance for their bénefit, or by means of their direction, and it would seem very clearly to follow, from that circumstance, that they could not be rendered liable for the charges and expenses afterwards accruing. As to those previously arising,- the right of the sheriff may very well be entirely distinguishable. For during the time when those charges accrued he held the property under the authority and direction of the plaintiffs, who would seem certainly, from that circumstance, to render themselves liable to him for his fees and expenses. But without determining whether they were subject to that liability or not, it appears to be quite clear that they could not be liable to him for the expenses incurred by him in retaining the custody of the property after they had released and discharged their attachments. The judge, consequently, had no authority under the statute to adjust or order the plaintiffs to pay these expenses. They were not liable for them, and the order was unauthorized.

Before this order was made an action was commenced by the sheriff to foreclose the lien claimed by him upon the attached property for his fees and expenses. The plaintiffs were made parties to that action, and whatever deficiency may remain in it, after the appropriation of the property to the payment of his bills, if that can be permitted to be done in any view which can be taken of the law, has been claimed as a personal liability against them. The Code, by section 709, has by its language provided the sheriff with the right to retain the property, even against the defendant, until payment shall be made of his costs, charges and expenses. But, whether that should be held to be applicable as a constitutional exercise of legislative power to any cases except those where the property shall be released by means of the undertaking.provided by section 688 of the Code, it is not intended now to decide. But as the sheriff has brought his action for the recovery of his fees and charges, he has elected that as the remedy to be pursued by him while that action shall be pending. And, having made that election, he cannot resort to the order provided for by this act of 1884, even if it should be held to be applicable to the fees and charges now legally claimed by the sheriff. The two remedies are not consistent, and tbe rule is, where that is the fact, that the election of one determines the right of the party to resort to the other. (Morris v. Rexford, 18 N. Y., 552; Bank of Beloit v. Beale, 34 id., 473; Rodermund v. Clark, 46 N. Y., 354, 357.)

As the attachments were released before either of the items included in the last bill accrued, they could'neither of them be for costs or expenses arising under the attachments. .And, as the plaintiffs were not liable for them, no order was authorized directing the payment of the last bill by them. An order, therefore, should be made reversing the order from which the appeal has been taken, and denying the motion for the adjustment of so much of the sheriff’s account as accrued after the 1st of June, 1883, and the plaintiffs should recover their costs and disbursements oh the appeal.

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

Order reversed, and motion for adjustment of so much of sheriff’s account as accrued after June 1, 1883, denied; costs and disbursements to plaintiff.


author: Daniels, J.:

text:
    SIEGFRIED ROWN, Respondent, v. THE CHRISTOPHER AND TENTH STREET RAILROAD COMPANY, Appellant.

      Bireet railroad company — when a driven' has cmthoriiy to give a passenger into the custody of a policeman — unlawful arrest — injury to feelings, and the indignity, to be considered in estimating the damages.

    A dispute arose between the plaintiff, while a passenger on one of the defendant’s cars, and the driver thereof, as to whether or not he had paid his fare; the plaintiff insisting that he had, and the driver that he had not paid it. A policeman, called by the driver, arrested the plaintiff, upon his resisting the efforts of the driver to remove him, and took him to the station house, where he lemained until morning when he was discharged by the court. The driver testified that the plaintiff, while resisting him, used profane and abusive language and conducted himself in a disorderly manner.

      Held, that the act of the driver, in giving the plaintiff into the charge of the policeman, was within the apparent scope of his authority and rendered the defendant liable for the damages thereby occasioned.
    The court instructed the jury that in estimating the actual damages sustained by the plaintiff, they could include the injury to the plaintiff’s feelings and compensation for the insult they deemed, him to have sustained and the indignity to which he was subjected.

      Heldt< no error.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Mdbinson, Scribner c& Bright, for the appellant.

      Albert Owrdozo, for the respondent.
   Daniels, J.:

The plaintiff was a passenger on one of the defendant’s street cars. A misunderstanding arose between himself and the driver, there being no conductor, concerning the payment of his fare, the driver insisting that the plaintiff had not paid, and he insisting as positively that he had placed his fare in the box soon after entering the car, and he refused to pay again. The driver required him to pay or leave the car, which he declined to do, and afterwards called upon a policeman to interfere and remove him. A similar altercation as to the payment of fare again arose, when the driver endeavored to remove the plaintiff from the car, and upon his resistance he was taken in charge by the officer, and afterwards to the station-house, where he remained in custody during the night, and in the morning he was removed to the court, where, upon the presentation of the complaint, he was discharged. A controversy .arose upon the evidence as to whether the plaintiff - was placed in the custody of the officer on the complaint of the driver, at the time when the officer interfered. As the evidence was given upon this point it was a proper subject for the decision of the jury, and under the charge they must be held to have found in favor of the plaintiff. A like controversy arose as to the fact of the payment of his fare, and as the disposition of the case was submitted to the jury upon that as the controlling point, it is to be assumed now that they found the plaintiff to be correct in the statement made by him, that he had, in fact, paid his fare. His removal from the car by the driver was consequently a wrongful act. It was in the nature of an unlawful assault in the judgment of the law, and as the acts performed by him were in the regular course of his employment, and within-the authority possessed by him as the driver and manager of the car, the defendant was certainly liable for the driver’s acts to that extent. The late authorities are so decisive against the defendant upon this point as to require no special examination to be given to them. (Hoffman v. N. Y. Central, etc., R. R. Co., 87 N. Y., 25; Schultz v. Third Ave. R. R. Co., 89 id., 242; Stewart v. Brooklyn, ete., R. R. Co., 90 id., 588.)

Whether the driver acted within the limits of liis authority, in making a complaint against the plaintiff and delivering him into-the custody of the officer, is a point that has not yet been settled by authority. But that he was so authorized, by his own statements of his conduct and the inducement leading to its performance, is-not considered to be involved in serious doubt. His statement was that the plaintiff not only resisted him in his attempt to remove him from the car, bu t beyond that made use of profane and abusive language, and was charged with having conducted himself in a disorderly manner, and that charge, under the- authority of chapter 186 of the Laws of 1880, would not only justify his removal from the car, but in addition to that his arrest and confinement by the officer. This act, so far as it was designed to affect a charge of this descri ption, is in the following language :

“ Section 1. Any person who shall, by any offensive or disorderly act of language, annoy or interfere with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occupants of such stage, car, boat or conveyance by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery,, shall be deemed guilty of a misdemeanor, and any police justice or justice of the peace of the city or county in which any of such acts shall be committed, shall have jurisdiction thereof.”

And under it the driver of the car would be authorized to act as he did, if the plaintiff’s conduct had been such as it was charged to be by the driver. He so regarded it according to his sworn statement and the testimony given by him upon the trial.. It was consequently within the limits of his authority, in the views entertained by him, to deliver the passenger into the custody of the officer. The law was intended to be executed and enforced in that manner, and the person under whose special supervision the misconduct intended to be punished will necessarily take place, is that of the driver of such a car. He consequently exercised an authority conferred upon him, when he made the complaint and placed the plaintiff in the charge of the officer, and the defendant was equally as liable for the consequence of that act as it was for the assault made by the driver upon the plaintiff in the effort to remove him. That he did, in fact, make use of the authority when the circumstances did not justify it will not relieve the defendant from liability for his conduct. For, where a servant acts within the scope or limits of the authority conferred upon him, designing to discharge the duty owed by him to his employer, and he acts erroneously, or in a case where the authority cannot, under the circumstances, be lawfully exercised, there the employer must bear the responsibility, for the act is within the limits of the authority conferred upon the servant. It was the authority of law given to the company that the driver claimed to exercise, but it was misapplied for the reason that the facts upon which he depended for his justification were shown to the satisfaction of the jury not to exist.

And the company cannot exonerate itself from liability because it had not, as a matter of fact, delegated this broad authority to the driver. He had it by virtue of his position and could exercise it within the scope of his employment, whenever a state of facts arose indicating to him that it was the proper course to be followed. What was done was a continuous act, beginning with the attempt of the driver to remove the passenger and tenninating only with his discharge the next morning by the court before which he was taken. No division'of it can, either legally or logically, be made relieving the defendant from any part of the liability incurred in consequence of the unlawful removal of the plaintiff from the car, and his imprisonment because of the fact that he resisted the effort of the driver to remove him.

The court was asked to direct the jury that the fact that the police justice refused to entertain the complaint and discharge the plaintiff did not, in any manner, tend to establish a liability on the part' of the defendant. The proposition itself was too broadly, ■stated, for the fact of the discharge was a circumstance which tended to make out the plaintiff’s case, and in that manner to estab* lish a liability on the part of the defendant. It was in that view an essential circumstance to be proved, and the court merely left it to the jury to be considered by them without, in any manner, explaining the use which might be made of the fact.a And as it was pertinent to this extent, it cannot be said that any error arose out of the circumstance that the jury was not more specifically directed upon the subject. But it was not left in this condition by the learned counsel for the defendant, for the proposition was again repeated without this exclusive qualification, and then the court stated tp the jury that the fact of the discharge of the plaintiff by the police justice did not afford want of probable cause, which, as the charge had been given to the jury, was all that could strictly be required to be repeated by the court. By the charge, as it was made, and the answers that were given, the jury were placed in full possession of the case and could not encounter any misunderstanding as to the points upon which it was to be determined.

The court restricted the jury in their verdict to the actual damages sustain ed by the plaintiff by reason of his removal and consequent imprisonment, and in estimating them the jury were instructed that they could include the injury to the plaintiff’s feelings and compensation for the insult they deemed him to have .sustained and the indignity to which he was subjected. But that was no more than, in a case of this description, the plaintiff was entitled to have considered by the jury for the purpose of ascertaining the actual damages sustained by him.

To present the case clearly to the jury, the evidence of what occurred after the plaintiff was taken from the car and up to and including the time of his discharge was p*oper for their consideration. It simply exhibited the development .of the events naturally following and arising out of the unlawful act of the driver in endeavoring to remove the plaintiff from the car, and the objections therefore taken to the evidence were without substantial foundation, and do not require particular consideration. They were rightly overruled and the evidence allowed to be submitted to the jury.

The essential facts upon which the legal liability arose were •directly in dispute by the witnesses whose testimony was taken ■upon the trial. Who was correct, was a question entirely proper for the consideration of the jury, and the case is not one in which the court could lawfully interfere and set aside their verdict. It was not unfavorably presented for the defendant, and the judgment and order appealed from should be affirmed.

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

Judgment and order affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent. (Matter of Application of CARRIE L. YOUNG, Appellant.)

      Insolvent insurance company — valuation of policies in case of death after the a/ppomtmént of a receiver.

    An insurance company having been dissolved, and a receiver thereof appointed, an actuary was directed to determine the value of its outstanding policies. A claim was presented by the appellant upon a policy issued upon the life of her husband. Before the proceedings were completed, and on November 2, 1883 her husband died. On December fourteenth, the proofs required by tire policy, were filed with and retained by the receiver. The report of the actuary was confirmed on August, 7,1884.

      Held, that the appellant was entitled to have her policy valued upon the basis of her husband's death, and not as an existing and continuing insurance.
    Appeal by Carrie L. Young from an order denying an application made by her for the revaluation of a policy of life insurance, issued by the defendant, the Knickerbocker Life Insurance Company, upon the life of her husband.

      Joseph B. Green, for the appellant.

      John O. Keeler, for the receiver, etc., respondent.
   Daniels, J.:

1 By an interlocutory judgment in the action, the company had been dissolved and a receiver of its property and effects had been appointed by the court. An order was made requiring the claimants-to present their claims, and within the time prescribed for that purpose the policy issued for the benefit of the .petitioner upon the life of her husband, was filed with the receiver. Proceedings were taken to value such policies as were filed with the receiver, and this was included in them; but before they were completed or'the report of the actuary confirmed the plaintiff’s husband died. The decease took place on the 2d of November, 1883, and the proofs thereupon required by the policy were filed with the receiver on the fourteenth day of December following, and afterwards retained by him. The report of the actuary was confirmed on the 7th of August, 1884, without notice to the petitioner, and as the valuation was made upon the policy as an existing and continuing iusurance, and not upon the basis of the decease of the person whose life was insured, the petitioner applied for an order directing a revaluation to be made. It appeared by a stipulation entered into between the attorneys for the parties that this could be done without disturbing or diminishing the dividend already directed to be paid to other policyholders. No embarrassment, or confusion, therefore, could arise from the revaluation of the policy as a death claim against the receiver. And as the person whose life was insured died while the actuary was proceeding with his valuations, and knowledge of that fact was brought to the receiver himself, it seems to have been no more than was just and equitable that the revaluation asked for should be directed. By the valuation of the policy, which was made, the petitioner and owner became entitled to the payment, of so much money only as would enable her to obtain another policy for the same amount upon the life of her husband in a solvent insurance company. And that was very far below the amount she would be entitled to receive upon the policy after the decease of her husband. And this decease followed so nearly upon the time when the policy was filed with the receiver, as to exonerate her from the charge of laches or unreasonable delay in obtaining another insurance upon his life. She had unusually strong claims, under the circumstances, that the policy should have been valued by the actuary as a death claim, inasmuch as all the facts had occurred entitling her to that valuation before he had completed the performance of his services, or made his report upon the subject committed to his consideration: The cases of People v. Security Insurance Company (23 Hun, 601), as well as that of People v. Security Insurance Com- pany (78 N. Y., 114), The Attorney General v. Continental Insurance Company (88 id., 77), do not require any different view to be taken of tbe effect of tliese facts. But they committed the subject to the discretion of the court to make such order as may appear to be just and equitable in the disposition of these applications. And as the facts were presented both justice and equity combined in support of the petitioner’s application. The order should be reversed, and an order entered directing a revaluation of this policy, but under the circumstances presented, without costs to either of the parties.

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

Order reversed, and order to be entered directing revaluation of policy, without costs to either party.