text:
    In the Matter of the Application of Hiram Broat et al.

      (Supreme Court, Special Term, Albany County,

      Filed January 20, 1894.)

    1. Election law—Caucus.
    In proceedings under section 65 of the election law, the decisions of party conventions, committees or caucuses are not binding and have no weight with tire court.
    3. Same.
    Their methods will not be sustained when found inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they are recognized and approved by senatorial and state conventions of the same political organizations.
    3. Same.
    Party caucuses should be the fair, full and free expressions of the party will, and such expression should nqt be thwarted by sharp practice or throttled by force or fraud.
    4. Same.
    The act of the chairman in declaring the persons nominated as delegates and committee-men elected, without taking a vote, and m ref using to take a vote thereon or to recognize any other nomination, is a nullity,

      5. Same.
    Where the chairman refuses to perform the duties of his position, or arrogates to himself the power lodged in the meeting or caucus itself, the meeting or caucus has power or authority to elect another chairman in his place.
    ■6. Same.
    In such case, the persons elected at the caucus presided over by the secondly elected chairman are the only ones regularly and legally elected from the town.
    7. Same
    A meeting, if it finds its proceedings broken in upon, prevented or delayed, may adjourn for the purpose of securing protection, attaining order and becoming enabled to conduct its business in an orderly and proper manner.
    ■8. Same.
    The town committee has no power to act except in session, where all are together or have had notice to be present.
    ■9. Same.
    Where the town committee has regularly elected its chairman it has exhausted its power in this respect, and cannot subsequently revoke such act and elect another in his place.
    40. Same.
    Unless notice of the meeting of the committee is given to all the members it is not a legal meeting.

      Henderson & Bell (J. A. Steele, of counsel), for the applicants ; A. M. Mills (George W. Smith, of counsel), for resp’ts.
   Herrick, J.

This is an application, under § 65 of chapter 680 of the Laws of 1893, known as the “Election Law,” which section reads as follows: “ A certificate of nomination which is in apparent conformity with the provisions of this article shall be valid, unless written objection thereto shall be filed in the office in which the certificate is filed within three days after the filing of the certificate. If such objection be filed, notice thereof shall be forthwith mailed to all candidates who may be affected thereby, addressed to them at their respective places of residence, as given in the certificate.”

“ The officer with whom the certificate is filed shall, in the first instance, pass upon the validity of such objection, and his •decision shall be final, unless an order shall be made in the matter by a court of competent] urisdiction, or by a justice of the .supreme court at chambers, on or before the Wednesday preceding the election. Such order may be made summarily upon application of any party interested, and upon such notice of not less than twenty-four hours, as the court or judge may require.”

On the 13th day of October 1893, a certificate of nomination of ■candidates for county officers was filed in the county clerk’s office of Herkimer county, which certificate purported to be a certificate of nominations made by the Democratic party of that county. On October 16, 1893, another certificate of nomination of other candidates for county officers was filed in said county clerk’s office, also purporting to be a certificate of nominations for county officers made by the Democratic party of that county.' Both certificates are upon their face in apparent conformity with the requirements of the election law. Written objections to each certificate were filed with the county clerk within three days after the filing of each certificate. The principal objection made to each is, that, the nominations therein certified to are not nominations made by a duly authorized convention of the Democratic party of Herkimer county.

Two conventions, purporting to be regular democratic conventions, had been held in this county; the convention that nominated the candidates whose certificates of nomination was filed October 13th was called by the democratic committee whose chairman was Daniel" E. Herlehey; and the convention whose nominations were set forth in the certificate filed October 16th, was called by the county committee, whose chairman was Frederick M. Lewis.

Each claimed to be the only regular democratic county committee of Herkimer county, and the only committee of the party authorized to call conventions therein.

This necessitates an examination into the organizations of such county committees.

For convenience, hereafter, we will speak of the organizations and branches of the party as the Herlehey and Lewis committees, conventions, organizations and parties.

The county clerk came to the conclusion that the Herlehey organization was the regular democratic organization in that county, and decided to print the ballots of their candidates, that is, that he would recognize the certificate filed' October 13th as the certificate of the regular democratic organization of that county.

Pursuant to the provisions of .§ 65 of the election - law heretofore quoted, the candidates of the Lewis party applied to a justice of the supreme court, who made an order returnable at this special term.

At the outset of the argument it is claimed that the question of regularity has been passed upon by the executive committee of the democratic state committee, and the regularity of one of the organizations in Herkimer county determined by that body, and recognized by it as the only democratic organization.

This claim is not a valid one. In proceedings of this character the decisions of- party conventions, committees, or caucuses, are not binding, and have no weight with the court, one of the very purposes of the law is to determine whether the action of such bodies is in conformity with the laws of the state.

Eecent legislation has been such as to bring within the law the action of all party caucuses, conventions and committees, and subjects them to the supervision and control of the-courts.

It has at last become recognized that, under our form of government, the primaries, caucuses, and conventions of parties should be surrounded by all the safeguards, and be conducted with the same conformity to law, that our regular elections should be ; and whether they have been so conducted is to be determined by the courts in the same manner as every other controversy that is brought before us.

In Re Woodworth et al., 16 N. Y. Supp., 147-152, the court said: “ Where the duty is cast upon the court and judges of determining the regularity and fairness of political methods, those methods must be subjected to the same tests as would those of any other body of men whose good faith is questioned, and no court or judge would be justified in sustaining them when found to be inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they be recognized and approved by senatorial and state conventions of the same political organizations. The trend of public opinion, as well as of legislation, at the present time, appears to be in favor of a radical reform in our political methods, and it is the plain duty of all good citizens, and especially those clothed with judicial authority, to encourage such a sentiment with all the force they can command.”

Now comes the consideration of which in truth, was the regular county committee ; that brings us ultimately to the examination of the caucuses in the several towns of Herkimer county.

Section 52 of chapter 680 of the Laws of 1892, as aménded by chapter 370 of the Laws of 1893, provides as follows:

“ Every primary held by any political party, organization or association, for the purposes of choosing candidates for office, or the election of delegates to conventions or for the purpose of electing officers of any political party, organization or association, shall be presided over and conducted by officers to be selected in the manner prescribed by the rules or regulations of the party, organization or association holding such primary.”

Prior to year 1893, there was'only one democratic organization in Herkimer county; it does not appear that it had any written or printed rules or regulations for the holding of conventions, caucuses or primaries, but the following were conceded upon the argument to be the rules and regulations of the party in that county, to wit: “ That town committees are to be elected at the caucuses for the first county convention, held after the general election in the fall.

“ That each town committee shall be composed of five members who shall all be residents and electors of the town, and in towns composed of more than five election districts, a member of the town committee shall be elected from each election district, and who shall be an elector and resident of such election district.

“ That each town committee shall have a meeting and select one of their number for chairman, who shall be county committeeman for such town for the ensuing year.

“ The caucuses to elect delegates to a county convention, or to select town committees, shall be held (one for each town) upon the same day, in each and every town throughout the county; such day to be designated by the county committee, and named in the call for such convention.”

“ That each town committee shall name the hour of the day and designate the place for holding such caucus.”

In this case, the county convention in and for Herkimer county, to elect delegates to the state and senatorial convention, was called by the then regular democratic county committee for September 30, 1893, and the day designated by said committee for holding the caucuses or primaries in the several towns of said county, was September 22,1893 ; calls were issued and notices posted by the chairman of the county committee, and the town committees of the several towns; such calls and notices specified that the purposes of the caucuses or primaries, so called, were for the selection of three delegates to represent said town in said county convention, and also for the purpose of selecting a town committee for the ensuing year.

A sharp contest ensued throughout the county, delegates were elected to the county covvention, to town committees, and members of the county committee were chosen.

After the adjournment of the convention to elect delegates to the state convention, the county committee met for organization ; for some reason which does not clearly appear in the papers before me, the committee did not organize at that time, but adjourned until October 4, 1893. ■ At that time eighteen of the nineteen towns in the county were represented at the committee meeting. As to fifteen of the towns, there was no contest as to who had been elected chairman of the town committee, and thereby elected member of the county committee.

In three of the 'towns, German Flats, Newport and Winfield, there were contests as to who had been elected.

From the town of Ohio two persons presented themselves, claiming to be the proxy of the representative of that town, to wit: Edmund Comstock and Ezra Beckwith ; and that left fourteen towns as to which there was no contest. It is conceded that eight of the persons whose seats were uncontested were adherents of Herlehey, and six adherents of Lewis.

The secretary of the committee appears to have been elected unanimously.

There are some questions which for the purpose of this case it is not necessary to decide, as to who at this time acted as chairman ; however that may be, a motion was made by one of the Herlehey delegates that S. I). Cary, of German Flats, be seated as a county committee man; that motion was amended by one of the Lewis delegates that W. H. Kittle be seated as the county committee man from the town of German Flats; the amendment was put to a vote and lost; the original motion was then put and declared carried; all of the fourteen uncontested delegates appear to have participated in these proceedings. Upon the motion to seat Cary being declared carried the adherents of Lewis, six in number, of the fourteen, withdrew to an adjoining room, which Appears to have been separated from the room where the committee met, by folding doors.

The eight Herlehey men of the uncontested fourteen, together with Gary, who had just been admitted, remained in the room, proceeded with their meeting, and decided to admit Nicholas W. •Garrigan, from the town of Newport, and Ezra Beckwith, as proxy or substitute, from the town of Ohio, and Thomas Smith, from the town of Winfield, and elected Herlehey chairman of the county committee so constituted, in place of Devoe, who was presiding, or claiming to preside, at the time the six members left the room. The secretary who was originally elected unanimously by the fourteen members, continued to act as the secretary of the Herlehey committee. The six members who had gone into the adjoining room seated the persons who were contesting the seats of those who were seated by the Herlehey organization from the towns of German Flats, Newport, Ohio, and Winfield, and elected Lewis chairman of the committee so organized.

Formerly, the facts, as I have so far stated them, would have been sufficient to settle any controversy as to regularity; when the majority of those whose seats were uncontested decided as to who of the contestants should be admitted to a convention or committee, party loyalty and odedience to party usage required the minority to acquiesce.

Here, as soon as a single case was decided against them, they abandoned the meeting without further effort, leaving the majority of uncontested members to proceed with the organization, they themselves proceeding to form a new committee.

But, as first stated, the decisions of committees or conventions are in no wise binding upon courts, and thus I am compelled to investigate the question as to whether the eight of the fourteen members decided correctly in admitting the person they did to membership in the committee. This leads to a consideration of the caucuses held in the towns of Winfield, German Flats and Newport.

Party caucuses should be the fair, full and free expression of the party will, and such expression should not be thwarted by sharp practice or throttled by force or fraud. And while it is not to be expected that political caucuses will -be conducted with the order and decorum of a church meeting or Sunday school, still fair play and .good faith should prevail, and a substantial compliance with the party and state law be compelled.

Bearing in mind these principles, let us examine how the caucuses in question were conducted, as appears from the affidavits used in this motion, and as to those affidavits, voluminous in number, I am a stranger to the persons makiug them, and I -can only test the truth of the statements made before me by the number of affidavits on each side, the means of knowledge of the affiants, and the intrinsic probability of their stories from those affidavits weighed and tested, as I have stated, .1 find the following:

As to the Town of Winfield; there was an affidavit made by three persons, in which they state that “ there was no opposition to the election of convention delegates or the town committee, the caucus was open and free, and that there was ample time for the nomination of an opposing ticket, but none was made, and no objection was made during the caucus;” on the other hand there were the affidavits of ten people who attended the caucus, that delegates were nominated by some -person attending the caucus “that immediately upon such nomination being made, the chairman declared the said persons elected, without having a vote of the electors present; that than and there these deponents and others, being upwards of five, demanded of the chairman that the election at said caucus for delegates and county committee men for the town should be by ballot, which was refused by the chairman, that deponents than and there protested against the methods by which such delegates were chosen, and demanded of the chair that it should be put to the caucus the question of said election of delegates. and especially that the chair should call for the noes, as to the choice of the said persons as delegates, which the chairman refused to do, and peremptorily declared the said persons to have been elected and chosen as delegates to said convention, although in fact no vote or expression of the choice of the electors present had been taken or ascertained.”

The affiants then go on to state that an attempt was made to nominate other persons, and other names were presented by them to be voted for, but the chairman refused to entertain or listen to such nominations, and refused to put the names of the persons so attempted to be nominated, or either of them, before the caucus to be voted upon, and refused to heed or recognize the nomination of any others than those that had first been nominated. That thereupon the persons so protesting against the action of the chairman, organized another caucus in the same room, with a chairman and secretary duly sworn according to law, and proceeded to elect delegates to the convention and members of the town committee, who in turn elected a chairman of such town committee, and members of the county committee.

It should need no argument to convince any person that the action of the chairman was grossly irregular. The chairman is not the whole caucus.

He is “ but the servant of the house, to declare its will, and obey implicitly all its commands.” Cushing’s Manual, § 294.

It is his duty to put motions properly made to a vote. He has no right to declare a motion or resolution carried without a vote being taken, unless by unanimous acquiescence.

The act of the chairman in declaring the persons nominated as delegates and committeemen, elected, without taking a vote, refusing to take a vote thereon, and refusing to recognize any other nomination, was a nullity.

Instead of acting as the servant of the caucus, he acted as its master; instead of declaring its will and obeying its commands, he attempted to substitute his will and commands for that of the caucus.

The delegates were selected by him not by the caucus.

It would be a burlesque upon the primary election law to recognize persons so chosen, or rather designated, as regularly elected.

When the chairman refuses to perform the duties of a chairman, or arrogates to himself the power lodged in the meeting or caucus itself, the caucus or meeting have power or authority to elect another chairman in his place.

“ The presiding officer, being freely elected by the members, by reason of the confidence which they have in him, is removable by them, at their pleasure, in the same manner, whenever he becomes permanently unable by reason of sickness, or otherwise, to discharge the duties of his place and does not resign his office; or whenever he has, in any manner, or for any cause, forfeited or lost the confidence upon the strenqih of which he was elected." Cushing’s Manual, § 299.

In this case electors present were perfectly justified in electing another presiding officer, and the persons elected at the caucus presided over by the secondly elected chairman were the only ones regularly and legally elected from that town.

As to the town of German Flats : the evidence presented before me including the affidavits of the five members of the town committee, under whose direction the caucus was called, is overwhelmingly to the following effect: that the chairman of the town committee called the caucus to order, that two nominations were made for chairman of the caucus, a ballot box was produced, and they proceeded to elect the chairman by ballot; there were several hundred persons present, the estimates vary from three to six hundred.

The balloting was accompanied by great disorder and confusion, which lasted for an hour and a' half or more. The platform was occupied by the chairman of the town committee, as chairman during these proceedings, and by the person having charge of the ballot box. The platform was invaded, the ballot box, wrested from its custodian, carried away to another part of the hall and broken into, it was again wrested from its then possessor, and returned to the person originally having charge of it. While the balloting was progressing, and during the struggle in the convention^ a motion was made to adjourn until the next day, at two o’clock in the afternoon.

The chairman who presided, or attempttd to preside, during the attempted organization of the caucus, declared the motion carried, and it was announced by him, and one other member of the town committee, and the caucus was adjourned until the next day.

The affiants state that the motion to adjourn was carried by a large majority, that no appeal was taken from the decision of the temporary chairman; the meeting adjourned, the lights were turned out, and the assembly, or at least part of it, dispersed.

Subsequently, on the same evening, a portion of those present, it does not appear how many, organized a caucus in the same hall, elected delegates to the county convention, and members of the town committee. The chairman of the town committee caused circulars to be distributed and posted, announcing the adjournment of the caucus until the next day at half past two o’clock.

At the time he called the caucus to order, a chairman, with proper officers were elected, and they proceeded to elect delegates to the county convention, and five members of the town committee; the members of which committee elected one Cary as chairman of the town committee, and delegate to the county committee.

The fact as to the disturbance, confusion and riot at the caucus held on the evening of the 22d was so overwhelmingly established, that really the only thing to be considered is as to whether, under such circumstances, the adjournment of the caucus to' the next day was lawful, and whether the delegates and commiteeinen could, under such circumstances, be lawfully elected on the 23d of the month instead of the 22d.

The objection that the delegates were elected on the 23d, whereas the caucus was called to be held on the 22d is not, I think, under the facts disclosed, a valid objection.

A meeting called for one day if, for any good and sufficient reason it is unable to perform and complete the duties it was called for, may properly adjourn to another day,

It seems to me that it must at all times be in the power of a meeting to protect itself from, disorder, and if it finds its proceedings being broken in upon, prevented or delayed, that it may adjourn for the purpose of securing protection, attaining order, and enabled to conduct its proceedings in an orderly and proper manner. To hold otherwise would put it in the power of a minority of lawless and disorderly persons to practically control the proceedings of all public meetings. The law abiding and peaceable, although in a majority, would be for all practical purposes controlled by the lawless minority of disturbers.

No question is raised but what the chairman of the town committee was the proper person to preside until a chairman of the caucus was elected.

I am of the opinion, therefore, that the delegates and committeemen " elected on the 23d of October were the legally and regularly elected ones, and that the member of the county.committee selected by the town committee there elected was the regular member of the town committee from the town of German Flats.

In the case of the town of Newport no question arises as to the town caucus, the controversy is as to who was elected chairman of the town committee There is a certificate signed by three members of the town committee appointing Nicholas Carrigan chairman of the town committee, and member of the democratic county committee, from that town; in addition thereto in the affidavit of Carrigan, that on the 28th day of September there was a meeting of such town committee, that all the members thereof were notified to be present; that pursuant to the notice three of them met, and that at such time and place Carrigan was elected chairman and member of the county committee ; on the other hand a paper was produced dated October 2d signed by four members of the town committee, in which they certify that they elected and constituted Henry Molineaux as their representative in the county committee, and declared that they had not designated any other person, and there is a further certificate signed by three members of the committee reading as follows: “At the meeting of town committee of the town of Newport, Herkimer county, N. Y., held on the 3rd day of October, 1893, at the hotel-, we hereby represent and declare Henry Molineaux to be duly elected democratic chairman of the town of Newport, Herkimer county, and our representative in the county committee; ” this is signed by three members of the town committee, of whom was one of the three persons who signed the certificate for the appointment of Oarrigan; this last certificate is sworn to before a notary public.

While it does not appear in the papers submitted to me, it was stated upon the argument, and the last certificate set forth seems to substantiate it, that after the first meeting was held as alleged by Camgan, members of the town committee to the number of four, without holding any meeting, separately signed the paper appointing Molineaux county committeeman, and subsequently three of them held a meeting in which they ratified the action theretofore separately taken, as set forth in the certificate of the meeting held October 3rd.

It does not appear that notice was given of this meeting to the other members of the town committee. It is not not denied but that a meeting of this committee was called for September 28th, that notice was given to the members of the committee of-such proposed meeting, and that three of them attended such meeting, and it is not denied but that at such meeting Oarrigan was elected chairman of the town committee, except the unverified statements in the paper dated October 2nd, and signed by four members of the town committee, .in which they designate Molineaux as the “member of the committee, and our representative upon the county committee, and we hereby declare that we have not designated any other person to só act.”

If the meeting of the town committee was held as stated, and Oarrigan was elected chairman thereof which is not disputed by the evidence, then I think they had exhaused their power in that respect, and could not subsequently elect another in his place.

The substance of the whole matter seems to be this, that Carrigan was elected by two members of the committee, two staying away, one of the mumbers so voting for him, was induced to change and subsequently meet with the other two members and join in the election of another person.

There seems to have been no rules governing the action of this town committee, and in the absence of any, it must be held to the same rules that at common law govern any board or body of officers. That the act of the majority-is the act of the board or committee; that such act must be done however where all are together or have had notice to be present; they have no power to act except in session, that is, they cannot act separately without any meeting being held. American and English Encyclopedia of Law, vol. 19, p. 465 et seq.

The first meeting of the committee, all of its members having been notified, was regular, and their action in electing Carrigan was final.

It could not be revoked at another meeting. And no other regular meeting of the committee was held; no notice of any other meeting was given; notice of any meeting should be given to all members, and unless it is, it is not a legal meeting.

Carrigan was the only person ever elected at a legal meeting of the town committee.

In the town of Ohio there was no contest; there was no question raised as to who was the regularly elected county committee-man from that town; the regularly elected delegate gave his substitute or proxy to one Edmund Comstock on the 2d day of October; and on the 3d day of October he gave a proxy or substitute to Ezra Beckwith to act for him at the meeting of the county committee. Ezra Beckwith was not a resident of the town of Ohio, and the contention is that he not being a resident of the town of Ohio had no right to act as a proxy for the committeeman of that town. The petitioners claim that there is a rule of the committee that no one except a resident of the town can act as the proxy or substitute of the committee-man from that town; this is denied by the defendants; as before stated there are no written or printed rules, and each party produce affidavits to sustain their contention.

It is not necessary for the purpose of this proceeding that that question should be determined, neither do I see that any useful purpose can be subserved by so doing, and it is therefore not passed upon.

The Herlehey committee admitted to their body the persons that the foregoing discussion indicates should have been admitted, making their body consist of eleven regularly elected members out of nineteen, exclusive of the delegate from the town of Ohio, giving them a clear majority of the entire committee.

My conclusion is therefore that the Herlehey committee was the regular committee, and the only one authorized to call conventions for its party, and that the decision of the county clerk should be sustained.


source: Caselaw Access Project

author: Davy, J.

license: Public Domain

text:
    The People ex rel. Truman Carman, Pl’ff, v. Samuel W. Sawyer et al., as Assessors of the Town of Palmyra, Deft’s.

      (Supreme Court, Monroe Special Term,

      Filed December, 1893.)

    1. Taxes—Assessment.
    The taxable status of persons and property in the towns and wards becomes fixed on the first day of July of each yéar.

      2. Same.
    For the purpose of taxation, bonds and mortgages on real estate belonging to a non-resident creditor, may be taxed in the place where the obligations are held by his agent.

      3. Same.
    The provisions oí chap. 176 of 1851 are only designed and intended to protect foreign capitalists who send funds into this state for investment.
    4. Public officers—Burder.
    Where a party claims that public officers have failed to discharge a statutory duty the burden is upon him to show that such dnty was not discharged.
    Proceeding upon certiorari to review the action of the defendants in assessing the personal property of the relator.

      H. B. Durfee, for relator; & iS. McIntyre, for deft.
   Davy, J.

This is a certiorari proceeding instituted by the relator under chapter 269 of the Law's of 1880, to review the action of the defendants in assessing the personal property of the relator in the town of Palmyra, in the county of Wayne, for the year 1892.

It appears from the evidence that the relator was assessed by the town assessors for that year the sum of $5,175 for real estate and $20,000 for personal property. The referee to whom this matter was referred to take the testimony and to report the same with his opinion to the court, recommends that the $20,000 personal property assessed to the relator be stricken from the roll, upon the ground that the assessment is illegal..

The evidence shows that the relator, on the 15th day of March, 1892, was the owner of bonds and mortgages amounting in the aggregate to $20,000 or over, that the mortgages were upon real estate located in the counties of Wayne and Monroe, and that these mortgages were assigned by the relator, on that day, without consideration, to his daughter, Jeannetta Palmer, of Chicago, 111.; that he retained the assignments until the 29th of March, when they were mailed to her. He also retained the bonds and mortgages in his possession until after the 4th day of July, 1892, and collected the interest on some, if not all, of them up to as late a period as the first of July. The assignments of the mortgages were not recorded in the clerk’s office of the county of Wayne until the 15th day of July, 1892.

The principal question which arises on this motion is whether the assessors, upon the above state of facts, had a legal right to assess the bonds and mortgages to the relator either as principal or as the agent of his daughter. By the provisions of the Revised Statutes all property, real and personal, within this state, unless exempt, is liable to taxation. 1 Rev. Stat., 887, § 1. Chap. 176 of the Laws of 1851 provides that every person shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person. 1 Rev. Stat., 389, § 5. The term “personal property ” as defined by the Revised Statutes includes all household furniture, moneys, goods, chattels, debts due from solvent debtors, whether on account of contracts, notes, bonds and mortgages, public stocks and stocks in moneyed corporations. 1 Rev. Stat., 388.

The general statute law pertaining to the duties of assessors in towns and wards in all counties in this state, except the county of New York, authorizes and directs the assessors in the months of May and June in each year to make the necessary inquiries, and to ascertain the names of the taxable inhabitants and the property liable to taxation in their respective towns and1 wards, and to make up an assessment roll embracing such persons and property. The assessors are required to give notice on the 1st day of August in each year that the roll is complete and open for examination, and that they will meet on the 3rd Tuesday of August and correct their assessments, and that parties aggrieved can be heard. The roll is required to be delivered to the supervisors on the 1st day of September, so that the assessors in each town and ward have until September 1st in each year to review and correct their assessments.

The court of appeals, in construing this statute, has held that, notwithstanding the provisions of the act giving the assessors until the first day of September to review and correct their assessments, that the taxable status of persons and property in the towns and wards becomes fixed on the first day of July in each year, and that .the assessors are not clothed with power under the statute to enter property thereafter acquired by a taxpayer upon the .assessment roll, or to change an assessment already made on account of any transfer of title. The names of the persons and the amount and nature of the property to be assessed must be determined upon by the assessors and entered upon the roll before the 1st day of July in each year. 1 Rev. Stat., 398 ; Clark v. Norton, 49 N. Y., 243 ; People v. Com'r of Taxes, 91 id., 602. Reynolds, commissioner, in the case of Overing v. Foote, 65 N. Y., 263, says“ All the cases, so far as I have discovered, agree that the assessment must be made upon the condition of facts as they exist on the 1st of July.” In the case of Mygatt v. Washburn, 15 N. Y., 316, Denio, J., says: “In my opinion, the assessment should be considered as made on the 1st day of July. If there is any change of residence or ownership of property after that day, it does not affect the assessment roll." Any change which the assessors are authorized to make after that time are such as may be required to correct mistakes. In this case, the defendants exercised the power devolved upon them as assessors of the town of Palmyra, in the months of May and June, and adjudged that the relator was liable to assessment for the personal property, consisting of the bonds and mortgages in question.

The language of the statute embraces all personal property in the possession of a person or under his control as agent, trustee, guardian, executor or administrator. The mortgages were personal property, assessable to the relator, because he either held them on the first day of July as his own or as the agent of his daughter. The assessment, therefore, could not, under the statute, be made to any other person. The legislature, in establishing our system of taxation, was careful to leave no doubt as to the persons who should be taxed by reason of their ownership of personal property, and those who held personal property in their representative capacity, as agents or trustees. Notes, bonds and mortgages, and other contracts for the payment of money, have always been regarded and treated in law as personal property; they represent the debts secured by them. It has been repeatedly held by the courts in this state that, for the purpose of taxation, such property belonging to a nonresident creditor, may be taxed in the place where the obligations are held by his agent. People ex rel. Hoyt v. Commissioners of Taxes, 28 N. Y., 224-228; People ex rel. Young v. Williams, 133 id., 383; 45 St. Rep., 221. Judge Story, upon this subject, says: “A nation within whose territory any personal property is actually situated, has entire dominion over it while therein, in point of sovereignty and jurisdiction as it has over immovable property situated therein.” Story’s Conflict of Laws, § 550. Chief Judge Comstock, in the case of People ex rel. Hoyt v. Commissioners of Taxes, supra, says: “I can think of no more just and appropriate exercise of the sovereignty of a state or a nation over property situated within it and protected by the laws, than to compel it to contribute toward the maintenance of the government and law.” Judge Rapallo, in Williams v. Board of Supervisors, 78 N. Y., 565, says: “ The general rule in regard to taxation of personal property is, that it is to be assessed to the owner at the place of his residence, and but for the provision of our statute which authorizes the assessment of persons resident in this state for property held by them as trustees or agents for others, there would be no legal means of taxing the personal property of a nonresident as there could be no jurisdiction here over the owner.” The right, therefore, of a state or town to tax real estate or personal property, is based upon the control or dominion which it has over the property at the time the tax is imposed.

The learned counsel for the relator also claims that if the bonds and mortgages were subject to taxation they should have been assessed to the relator as agent. There is always the legal presumption that public officers will properly discharge their official duties, and if the assessors at the time the relator made his application for the correction of the assessment roll had discovered facts sufficient to satisfy them that the roll should have been corrected so as to have it appear that he was holding the securities as the agent of his daughter, they, no doubt, would have corrected it. Where a party claims that public officers have failed to discharge a statutory duty, the burden is upon him to show that such duty was not discharged. The assessors, whose duties required them to make diligent inquiry during the months of May and June for the purpose of ascertaining the taxable inhabitants of the town and the property, real and personal, liable to taxation, must have learned that the relator had three children, and that his property liable to taxation amounted to $25,175, from which $20,000, consisting of bonds and mortgages on property in the counties of Wayne and Monroe had been assigned without consideration to his daughter who lived in Chicago, 111., and that the assignments on the first day of July were not recorded, and that the securities had not been delivered to her, but were retained by the relator and in his possession on that day. The assessors, therefore, being in possession of all these facts, could not very well escape reaching the’conclusion that the bonds and mortgages belonged to the relator instead of his daughter, and that they were only assigned for the purpose of evading taxation.

The relator also contends that these securities were exempt from taxation under chapter 176 of the Laws of 1851. If the assessors had reached the conclusion that the bonds and mortgages belonged to the relator’s daughter and that they were held by him as her agent, they would not even then be exempt from taxation under the statute. The provisions of the above act were only designed and intended to protect foreign capitalists who send funds into this state for investment. The. mortgages were purchased by the relator with his own money and not with foreign capital. In the case of the People ex rel. Young v. Willis, supra, Judge Peckham, in referring to this statute says : “ Thefoundation of the exemption consists in the fact that it is, in substance and effect, foreign capital transmitted for investment.” In my opinion, the bonds and mortgages in question were not exempt from taxation and that the assessment was legally made.

The motion, therefore, to confirm the referee’s report is denied and the motion to quash the writ of certiorari is granted, with costs against the relator.


author: Ward, J.

text:
    In the Matter of the Application of John J. Ryan, for a Mandamus Against the Board of Audit of the Town of Royalton, Niagara County, N. Y.

      (Supreme Court, Erie Special Term,

      Filed December, 1893.)

    1. Excise law—Commissioners.
    The majority of the board of excise has the right to call a special meeting at any time when the exigency of the case demands.
    2. Same—Attorney.
    Where the board of excise employs an attorney who acts from time to time as may be reasonable, his compensation is a town charge and shall be audited and paid.
    3. Same.
    Where the commissioners have entered upon the performance of their duties and, in consequence .of their action or non-action, they are assailed and charged with misconduct and wrong doing as a board and as commissioners, and it is sought to remove them.from office, it presents a case where the services of an attorney are reasonably necessary.
    4. Same—Mandamus.
    Where the relator has a clear legal right to have his claim audited, but the board of audit refuses to act upon it, mandamus may issue to set the board in motion and compel it to perform its statutory and legal duties.

      Motion for peremptory writ of mandamus to issue to the board of audit of the town of Royalton, Niagara county, N. Y., to compel them to audit an account of John J. Ryan, as attorney for the board of excise of said town.

      John J. Ryan, petitioner in person; G. W. Laskey, for the board of audit.
   Ward, J.

The petitioner, Ryan, is an attorney and counsellor of this court, practicing his profession at Medina, N. Y. In the year 1892, Barnard A. Mackey, David Snell and G-eorge Sayres were commissioners of excise for the town of Royalton, in Niagara county. Applications were made for licenses by various persons in the spring of 1892, to this excise board, and they were all refused by the board, two of them,, Mackey and Snell, having been elected as no license commissioners and refusing to grant any licenses whatever. The disappointed applicants for license made complaint to the county judge of Niagara county of these commissioners, and charged that they had been guilty of willful neglect of duty and of misconduct in office in not granting licenses in proper cases, and demanded their removal from office by the county judge under § 6 of chap. 401 of the Laws of 1892, being the “ act to revise and consolidate the laws regulating the sale of intoxicating liquors.”

This act took effect on the 30th of April of that year, and the application to remove the commissioners was made to the county judge on the 13th of July, 1892. On that day, the county judge issued an order directed to the said excise commissioners, and to each of them, and requiring them to show cause before him as such county judge at his office in the city of Lockport, on the 22nd day of July, 1892, at 2 o’clock p. m., why they and each of them should not be removed from the office of commissioner of excise for neglect of duty and misconduct in office. A copy of this order and the petition upon which it was granted was duly served upon each of the said excise commissioners.

On the 16th of July, 1892, Commissioners Mackey and Snell caused a notice in writing signed by them to be served on the other commissioner, Sayres, notifying him that there would be a meeting of the board of excise of the town of Royalton, Niagara county, New York, on the 19th day of July, 1892, at eleven o’clock, A. M., at the law office of George D. Judson in the village of Middleport in said town. The service of this notice was personal upon Sayres. At the time and place mentioned in said notice Commissioners Snell and Mackey met as a board of excise of the town of Royalton, and organized by electing Mackey temporary chairman. Sayres did not appear; but the board adopted a resolution appointing the petitioner, John J. Ryan, as attorney for the board of excise. Afterwards Mackey and Snell applied to the petitioner, informing him of such appointment as such attorney, which employment he accepted, and the commissioners then submitted to the attorney the proceedings that had been taken to remove them from office. He examined the law, advised them as to their duties, prepared an answer to the petition upon which the order to show cause was granted, appeared before the county judge, and acted as attorney for the commissioners before the county judge. All the commissioners appearing upon the return of the order to show cause, and upon a full hearing, the parties asking the removal of the commissioners being represented by counsel, and the commissioners being represented by the petitioner, Eyan, the county judge upon consideration dismissed the proceedings, and refused to remove the commissioners, or any of them. Sayre was present at the hearing before the county judge, but did not sign the answer made by the petitioner for the other-two commissioners. The petitioner afterwards prepared an account against the town of Eoyalton making a claim of fifty dollars. The period of his service covering about six days; which account he verified and presented to the town board of audit of the said town of Eoyalton at a regular meeting of the board held in the town for the purpose of auditing accounts against the town in the fall of 1892, and in October the board decided to and did reject and disallow the claim of the commissioner in toto as not a proper town charge for the reason, as it substantially appears from the papers, that the attorney for the board only rendered service for the commissioners individually upon a charge of misconduct for their removal, and his employment was not necessary or proper for the board of excise in discharging any of their duties under the statute.

The board of town audit seemed only to consider the question as to whether the bill was a proper town charge and did not go into the merits of the claim and there does not seem to be from the papers any dispute as to the facts. The meeting of the board at which Eyan was appointed attorney was a special meeting called after proceedings to remove the commissioners were instituted. The last regular meeting of the board of excise was held on the first of July and a motion was made and carried that, that meeting was adjourned until the first Monday of May, 1898; but the majority of the board have the right to call a special meeting at any time when the exigency of ■ the case demands it.'

Section 11 of chap. 401 aforesaid provides: “ a board of excise of a town may employ an attorney and counselor of the supreme court to act as attorney of such board from time to time as may be reasonably necessary. His compensation shall be a town charge and shall be audited and paid in the same manner as other town charges.”

The command of this statute is imperative. If the board of excise do employ an attorney and he does act from to time as may be reasonably necessary, his compensation shall be a town charge and shall be audited and paid. It must be conceded that Mr. Eyan was employed as an attorney by the board of excise; that he performed services at their request. Were the services which he performed reasonably necessary for the board ? A new and most comprehensive and important statute which assumed to revise and consolidate the laws regulating the sale of intoxicating liquors had just gone into operation. The duties of the board of excise and the consequences of a violation of those duties were prescribed by this statute. Important legal questions must be ■considered and acted upon by the board under it. It was plainly contemplated by the statute that the board would need an attorney to guide them in the discharge of their duties; they had entered upon the performance of those duties and in consequence of their action or non action they were assailed and charged with misconduct and wrong doing as a board and as commissioners and it was sought to remove them from office, not for anything they had done as individuals but because of their official action. It would seem that if any case could be presented where the services of an attorney were “ reasonably necessary,” it was this very case. It clearly was so.

The remaining question is whether the petitioner is entitled to a writ of mandamus compelling the auditing board of the town of Eoyalton to audit his account; that board has refused to consider his account upon its merits, and taken the position that no part of it was a proper town charge, and therefore rejected it altogether. In other words they have not acted upon the claim, but refused to act. Where this state of facts arises, and the petitioner has a clear legal right to have his claim audited as whereas, in this case the statute commands it to be done, mandamus may issue to set the board in motion and compel it to perform its statutory or legal duties. People v. Supervisors, 51 N.Y, 401, 407 and408; People ex rel. Hall v. Board of Supervisors of New York, 32 N. Y., 473 ; Hull v. Supervisors of county of Oneida, 19 John. 259 ; People ex rel. Lawrence v. Supervisors of Westchester County, 73 N. Y., 173 ; People ex rel. Johnson v. Board of Supervisors of Delaware County, 45 id., 196 ; People ex rel. Thurston v. Board of Town Auditors of Elmira, 82 id., 80; People ex rel. Sage v. Schuyler, 79 id., 189; Fiero on Special Proceedings, pages 48 and 52. People ex rel. Kellner, v. Mayor, etc., of New York, 23 N. Y. Supp., 1060; People ex rel. Fraser, v. Board of Auditors of Town of Hampton, 24 id., 974; 54 St. Rep., 403.

The counsel for the auditing board seems to rely greatly upon the People ex rel Myers v. Town Auditors of Highlands, 114 N. Y., 317; 22 St. Rep., 164. The facts in that case are so different from the one before us as to give us but little aid here. Two opinions were pronounced by the court of appeals in that case. Upon the first argument the opinion of the court is pronounced by Potter, J., and upon a motion for reargument an opinion was handed down uper curiam,” which after again revising the case to some extent and referring to the mixed questions of law and fact, in that case the court conclude at page 331, “ if the record before us showed that the claims sought to be recovered were made by a statute or by some well settled rule of law legal charges against the town, charges which the board was bound to allow in whole or in part, then this case would have been within the rule laid down in People ex rel Johnson v. Board of Supervisors, etc., 45 N. Y.. 196; People ex rel Thurston v. Board of Town Auditors, 82 id., 80 (cited above), and kindred cases. But as we have attempted to show the relator had failed to establish by the evidence contained in the record the absolute liability of the town, for the whole or part of any one of the claims.”

So that whatever may have been the inferences from the opinion of Judge Potter in conflict with the position here assumed, the court in its conclusions swings around the sound proposition, that if the town was liable for this claim or any part of it and refused to allow the claim for the reason that it was not liable, then mandamus would issue to compel the auditing board to consider and audit the claim.

It follows that the motion for a peremptory mandamus should be granted, and let an order be entered accordingly.

But as the auditing board seem to have acted in good faith and under the advice of counsel, no costs are imposed upon the granting of this motion.


author: Pratt, J.

text:
    The People ex rel. Lawrence D. Huntington et al., App’lts, v. John J. Crennan, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Fisheries—Fines.
    Section 238, chap. 488 of 1892, does not affect the title of the county to, fines imposed prior to the passage of said act.
    Appeal from a judgment in favor of the defendant.

      Edward Q. Whitaker, for app’lts; Martin J. Keogh, for resp’t.
   Pratt, J.

We think the court below correctly held that the law of 1893 cannot be given a retrospective effect, so as to change the title to the moneys already in the hands of the defendant.

Order affirmed, with costs.


author: Parker, J.

text:
    The People ex rel. Edison General Electric Company, App’lt, v. Edward P. Barker et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Taxes—Assessment.
    Where it does not appear that the property unvalued in the statement, added to relator’s admitted valuation, will not exceed the sum which the commissioners found it to be worth, the assessment will not be disturbed on certiorari.

    3. Same.
    The relator can succeed in a proceeding to reduce the assessment, only by showing that there has been an overvaluation.
    Appeal from an order dismissing the writ of certiorari.

      Charles E. Miller, for app’lt; William H. Clark, Corp. Counsel, (Z). J. Dean, of counsel), for resp’ts.
   Parker, J.

The appellant, a New York corporation, with a capital stock actually paid in or secured to be paid in of $14,964,-900, was assessed by respondents for the year 1892 at $15,000,000. The corporation, feeling aggrieved, made application, pursuant to § 820 of the consolidation act, to have the assessment corrected. It submitted a statement in writing and under oath, which it claimed' demonstrated that the assessment complained of was wholly erroneo us, and should be taken off. Thereupon respondents reduced the assessment from $15,000,000 to $2,670,700, but, the corporation being still dissatisfied, it became the relator in certiorari proceedings to review the assessment. The writ was dismissed at special term, and the relator, having appealed, insists that a recent decision of the court of appeals, People ex rel. Edison Electric Illuminating Company v. Barker, 139 N. Y., 55; 54 St. Rep., 444, commands a reversal. In that case it was determined: (1) That when the evidence of a corporation as to the value of its assets is so full and complete as to establish the basic facts upon which its claim for reduction rests, and they are not contradicted, and no good reason is made to appear for doubting their truth, a refusal of the taxing officers to decide in accordance with such evidence constitutes legal error. (2) While thé assessing officers are not bound by the sworn statements when they have fair reason or ground for disbelieving them, they must return the information inducing such disbelief, so that the court may understand what it was upon which they acted. This, of course, does not mean that if the facts which lead to the conclusion that the contention of the aggrieved corporation is not founded in truth may be found in its statement to the taxing officers, and which forms a part of its petition, must also be set up in the return ; but, if the assessors rely on facts not otherwise appearing in the proceeding, they must return them. Now, the return in this proceeding is in the usual form, and does not set up any of the special facts, if such there were, which induced the determination made. Unless, then, the contention is well founded which is made in their behalf, that they were supported in their decision by the evidence presented by the corporation, the assessment made was erroneous. The statement furnished the tax commissioners showed the following matters: Capital stock actually paid in or secured to be paid in, $14,964.900. But its gross assets, exclusive of patent rights, value unknown, it alleged to be only $9,459.500; thus giving its gross assets a valuation of about $5,000,000 less than the sum of money actually paid in, or secured to be paid in for its stock. But according to the statement the gross assets were chargeable with the payment of an indebtedness of the corporation, amounting to $4,740.174, making the net value of its assets only $4,719,326, or less than one-third of the amount of money paid in or secured to be paid for its capital stock. The statement further alleges that other property of the corporation, amounting to $2,116,000, was permanently invested and taxable in other states ; that the gross assets included real estate of the assessed value of $982,500, while $3,526,800 of the gross assets were invested in the stocks of other corporations, and otherwise taxed ; making an aggregate of $11,365,474 to be offset, according to the contention of the relator, against gross assets amounting only to $9,459,400, necessarily leaving no basis for an assessment.

There are two grounds upon which the respondents challenge the statement of gross assets made by the relator: First. It expressly excluded the value of its patent rights, asserting that such value was°unknown. If, then, it was proper for the tax commissioners to consider their value, the relator did not present any evidence to them which was controlling on the question; and it has not presented any evidence in this proceeding which will support a determination that they were not of such a value that, added to relator’s admitted valuation of its gross assets, their total value would not he equal to the sum which the tax commissioners found them to be worth. It is true that relator stated their cost to have been $326,000, but, having further said that their present value is unknown, it cannot be assumed, for the purposes of this proceeding, that the commissioners erred in their estimate. It must be proven that they did, if such is the fact.

Whether an assessment against a corporation for the value of its patents is legal was suggested, but not decided, by the court of appeals in the case above referred to, because not necessary for its decision. We shall not consider that question now, because the second ground on which the commissioners challenge the truth of relator’s representation as to the gross value of its assets, seems to us sufficient not only to have raised a doubt, but to have justified an inference of fact that they were of greater value than claimed by relator; and, if so, then relator could only succeed by showing in this proceeding that there was an overvaluation. Laws 1880, chap. 269. This was not attempted. As has already been observed, the relator stated to the commissioners that, after deducting the amount of its indebtedness from the gross valuation of its assets, the net value would be only $4,719,326; yet in the same statement the relator admitted that for the year just ended it had declared and paid a dividend of eight per cent on its capital stock of $15,000,000. A moment’s examination will disclose that the tax commissioners would naturally and properly attach considerable importance to this statement. The statute declares that it shall not be lawful for the directors or managers of any incorporated company in this state to make dividends except from the surplus profits arising from the business of the corporation. If the capital of the corporation was impaired (counting the patents at cost) to the extent that the affidavit presented to the commissioners was intended to assure them, it would follow that the directors acted in violation of law. The presumption, of course, is that they acted legally and properly. This presumption, which attached to each of the members of the board of directors participating in declaring a dividend, amounted to an assertion on their part, but shortly before the application to reduce the assessment, that the value of the corporate assets was $15,000,000. This evidence the relator placed before the tax commissioners, and they decided that the evidence furnished by an officer of the company for the purpose of securing a pecuniary advantage to it was overborne by the testimony furnished by the action of the directors and managers of the company while proceeding in the discharge of the trust committed to them. These facts so far distinguish this case from the one cited as to require a different determination.

The order should be affirmed, with fifty dollars costs and printing disbursements.

All concur.


author: Bartlett, J.

text:
    Philip H. Moore et al., as Executors, etc., Resp’ts, v. The Hanover Fire Insurance Company of the City of New York, Impleaded, etc., App’lt.

      (Court of Appeals,

      Filed February 6, 1894.)

    1. Insurance—Fere—Mortgagee.
    Where the contract of insurance is with the mortgagor and the undertaking to pay .the loss to the mortgagee is collateral and dependent upon the principal undertaking, a breach of the conditions of the policy by the assured prevents a recovery by the mortgagee or his representatives.
    3. Same—Waiver.
    Since the enactment of chap. 488 of 1886, the verbal assent of the company’s agent does not constitute a waiver of the conditions of the policy.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made July 28, 1893, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.
    This action was brought by plaintiffs as executors of Barbara O. Rikert, deceased, upon a fire insurance policy issued by defendant to Maggie P. C. Smith, loss, if any, being made payable to plaintiffs’ testatrix as mortgagee.,
    The facts, so far as material, are set forth in the opinion.

      A. T. Clearwater, for app’lt; JEsselstyn & McCarty, for resp’ts.

       Reversing 53 St. Rep., 861.

   Bartlett, J.

On the 15th of July, 1890, defendant insured the property of one Maggie P. C. Smith for a period of three years, issuing to her a standard policy, the loss, if any, first payable to Barbara 0. Rickert, mortgagee, as interest might appear.

Barbara 0. Rikert was the owner of a mortgage covering the insured premises, executed by Maggie P. C. Smith, the owner. On the 17th of August, 1891, Mrs. Rikert having died in the meantime, her legal representatives began an action to foreclose - ■said mortgage, which proceeded to judgment, and the premises were advertised to be sold October 26, 1891. Three days before the date of sale the dwelling house covered by the policy was destroyed by fire. The defendant declined to pay the loss, and plaintiffs, as legal representatives of the mortgagee, began this action to enforce payment

The answer sets up, by way of defense, that the defendant did not have knowledge or notice of the commencement of the said foreclosure proceedings, or of the notice given by the referee of . the sale of the property covered by the said policy, nor did the •defendant assent thereto by agreement indorsed upon the policy. The policy reads that “ this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall-be void * * * if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed.” The special term found that both the plaintiffs and Maggie P. C. Smith, the insured under said policy, had knowledge of the said foreclosure proceedings on the said 17th day of August, 1891. The policy contains a further condition material to be considered, viz. : “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto ; and no officer, agent or other representative of this company shall have the power to waive any provision or condition of this policy except such as by the terms of this policy may be subject of agreement, indorsed hereon or added hereto; and as to such provisions and conditions, no officer, agent or representative shall have such power, or be deemed or held to have waived such provision or conditions, unless such waiver, if an)r, shall be.written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The special term found that, before the commencement of the foreclosure proceedings upon the mortgage alleged in the complaint, the plaintiffs in this action informed J. H. Thorn, a duly authorized agent of this defendant at Bhinebeck, that they were about to commence such proceeding, and the said agent agreed that such proceedings might be commenced without injuring the plaintiffs' rights under the policy.

It is further found that there is no evidence that the said J. II. Thorn, the alleged agent of the defendant, ever noted upon any register kept by him that the said foreclosure action or proceeding had been commenced. The policy was read in evidence, and is signed by the president and secretary of the defendant, and by J. B. Thorn, agent. There is no other proof as to the power and authority of Mr. Thorn, except that he was the duly authorized agent at Bhinebeck, and signed the policy as above.

It is also found that no agreement or consent for the commencement of the said foreclosure action and proceedings, or for the giving of a notice of the sale of the property covered by the said policy, or by virtue of the said mortgage and of the foreclosure of the same, was indorsed upon the said policy of insurance or added thereto.

The defendant insists that, in the absence of .such agreement or consent indorsed upon the policy, the foreclosure action and sale rendered the policy void.

The court below held the notice to the agent Thorn of Bhinebeck,' that the action was about to be commenced and his verbal assent thereto constituted a waiver of the provisions of the policy. We are of opinion that this is error, and the judgment appealed from cannot be sustained. _ _

_ _ There was no mortgage clause attached to this policy, simply the provision that loss, if any, first payable to mortgagee as interest may appear. The contract of insurance was with the mortgagor, and the undertaking to pay the loss to the mortgagee was collateral and dependent upon the principal undertaking, and if there has been a breach of the conditions of the policy by the assured the plaintiff cannot recover. Weed v. London & L. Fire Ins. Co., 116 N. Y., 106; 26 St. Rep., 414; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391; Bidwell v. Northwestern Ins. Co., 19 id., 179; Perry v. Lorillard Fire Ins. Co., 61 id., 214.

The sole question is the construction of the standard policy issued under the requirements of chapter 488, Laws of 1886.

The precise point involved in this case has been before this court frequently since the enactment of the law of 1886. The use of the standard policy was compelled by legislative enactment to remedy existing evils, and, among others, to protect insurance companies from the perils of alleged parol waivers by their local agents.

Every person who now enters into a contract of insurance is required to agree that no officer or agent or other representative of the company shall have power to waive any provision or condition of the policy, except such as by the terms thereof may be subject of agreement indorsed thereon, and as to such provisions and conditions the waiver must be written upon or attached to the policy, and he specially covenants that he will not claim any privilege or permission unless it be in writing.

The judgment appealed from ignores the plain provisions of the contract of the parties relating to foreclosure and waiver, and is contrary to the decisions of this court on the precise point presented now, and others which involve the same principle of construction. In Quinlan v. Providence Washington Ins. Co., 133 N. Y., 356; 45 St. Rep., 200; the necessity of notice in case of foreclosure was considered. Judge Andrews, in discussing the question of alleged waiver, said (p. 363): “ It is to be assumed that Kelsey ” (the agent of the company) 11 learned of the commencement of the foreclosure proceedings, and thereupon assured the plaintiff that his rights under the policy would not be prejudiced thereby.”

Again, at page 866, after holding that the principle that courts lean 'against forfeitures is unimpaired, says: “But where the restrictions upon an agent’s' authority appear in the policy, and there is no evidence tending to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power; nor is there any reason why courts should refuse to enforce forfeitures plainly incurred, which have not been expressly or impliedly waived by the company.”

The following cases are also in harmony with these views, viz.: Armstrong v. Agri. Ins. Co., 130 N. Y., 560; 42 St. Rep., 555: Baumgartel v. Prov. W. Ins. Co., 136 N. Y., 547; 50 St. Rep., 19; Allen v. German Am. Ins. Co., 123 N. Y., 6; 33 St. Rep., 216; Messelback v. Norman, 122 N. Y., 583; 34 St. Rep., 549; O’Brien v. Prescott Ins. Co., 134 N. Y., 28; 45 St. Rep., 389; Lett v. Guardian Fire Ins. Co., 125 N. Y., 82; 34 St. Rep., 411.

The foregoing cases are so cogently reasoned and the conciasions stated therein have so long been the settled law of this court, it is unnecessary now to do more than refer to them.

The judgment appealed from is reversed, and a new trial ordered, with costs in all the courts to abide the event All concur.

Judgment reversed.


author: Peckham, J.

text:
    Lemuel Lyon, Resp’t, v. Henry P. Ricker, App’lt.

      (Court of Appeals,

      Filed February 6, 1894).

    1. Evidence.—Deolabations.
    Declarations of a deceased grantor, made when in possession of real . estate in reference to his title thereto and against his interest, are admissible in an action against a person who claims nothing under such grantor and is not strictly in privity with him.
    2. Same.—Section 829.
    Proof of such declarations by competent third persons does not open the door for the admission of what would otherwise be plainly incompetent evidence under § 829 of the Code.
    3. Same.
    The fact that the plaintiff’s brother, who was one of the witnesses to prove . such declarations, occupied the same position as plaintiff, does not render his testimony incompetent.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made March 29, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    The plaintiff commenced this action to recover from the defendant a certain deed alleged to have been executed by plaintiff’s father and delivered to defendant under instructions 'to deliver the same to the plaintiff upon the death of the grantor.
    It was alleged in the complaint that the deed was executed and acknowledged by the grantor and that it conveyed about seventy-five acres of land to the plaintiff, who was the son of the grantor, and that in the deed there was a provision that the grantee (the plaintiff herein) was not to have possession of the premises until the death of the grantor. It was further alleged that the deed so executed was delivered by the grantor to the defendant,, to be delivered to the plaintiff upon the death of the grantor, who at the time was in the possession and was the owner of the land described in the deed, and so continued up to the time of his death in 1889. The defendant, it was also alleged, had, ever since the death of the grantor, kept possession of the deed and refused to' deliver it to the plaintiff, although the plaintiff had, since the grantor’s death, frequently demanded the same from him. The deed has never been recorded, and it was alleged to be necessary to have the possession thereof for the purpose of establishing the plaintiff’s title to the land therein described.
    The answer of the defendant admits that he drew for the grantor a deed of the premises described in the complaint, and that he took the acknowledgment of the grantor, and that the deed contained the covenants set forth in the complaint (seizin, against incumbrances, good title and warranty), and that at the time the deed was executed the grantor was the owner of the land described in the deed, and was in possession of the same up to his death. The defendant then denied upon information and belief, each and every allegation in the complaint not before admitted. The answer also contained a statement that “ the defendant retains possession of the deed for the reason that he does .not know to whom to deliver it or his duties in the premises, and is not advised what is proper and just for him to do with the deed.” He, therefore, asked that the complaint should be dismissed, with costs, .and that the court should determine his duties in the premises, and he be granted such further relief as should be just
    The case was referred to a referee to hear and decide, who subsequently reported in favor of the plaintiff for a delivery of the deed and for costs. Judgment was entered, and being affirmed at the general term of the supreme court, the defendant has appealed here.

      S. M. Norton, for appellant; Armstrong & Todd, for respondent

      Affirming 45 St. Rep., 940.

   Peckham, J.

The answer in this case only puts in issue the allegation that the deed in question was confided to defendant to be by him delivered to the plaintiff upon the death of the grantor, and the further allegation of a demand by plaintiff upon defendant for the possession of the deed since the death of the grantor.

It is claimed that the form of the denial is such that it does not make an issue, because it is alleged upon information and belief, while the matter denied is necessarily within' the personal knowledge of the defendant. Without deciding the question of pleading, we prefer to base our decision upon the real questions at issue between the parties. These questions arise upon certain rulings made by the learned referee in the course of the trial in regard to matters of evidence, and if.decided in favor of defendant the case of the plaintiff would be barren of any evidence to support it, and the judgment in his favor would have to be reversed.

First. To prove the condition upon which the deed was delivered to the defendant, the plaintiff called his mother, the widow of the grantor, and against the objection and exception of fhe defendant, the plaintiff proved by her that her husband came home after making the deed and said that he had made out deeds to the boys of seventy-five acres of land each, and that he left the deeds with Ricker to be given the boys at his death; that he had deeded to them seventy-five acres each of the lands they were living on; that they were to work them as they had done, and that she (the witness) need not sign them for she could have the use of her share while she lived.

Other declarations of a somewhat similar nature were proved by other witnesses. There was no evidence other than these declarations, showing a delivery of the deed to the defendant for the plaintiff and to be given him upon the death of the grantor

If the action were brought against the heirs, at law of the grantor to obtain possession, or if the plaintiff here were defending his possession of the land described in the deed against the claims of the heirs at law, the evidence of declarations such as these in question would be competent. Vrooman v. King, 36 N. Y., 477; Chadwick v. Fonner, 69 id., 404.

Defendant makes nq claim to the deed himself, nor does he allege any interest in it whatever. Refusing to deliver it to the plaintiff because he does not know his duty, as he says,, leaves him as representing no interest other than possibly that of the heirs at law, and it can only be urged that he represents them in a very indirect manner by assuming that it might'benefit them if the plaintiff were without possession of the deed in a controversy with them as to the title of the land. A judgment in favor of plaintiff in this action would not be evidence in his favor against the heirs in such contest. In such a case, where the defendant-makes no claim of right or title to the deed or its possession, and under the circumstances herein detailed, we think these declarations were competent as against the defendant himself. They were made by a party while, in the possession of the real estate and in relation to his title, and they were made against his interest, and he was deceased at the- time the proof was given. In such cases declarations of a deceased person may be given in evidence even in actions between third parties. 1 Ph. on Ev., C. & H. & Edwards notes, page 244, note 102; 1 Greenleaf on Ev., § 147 & note; White v. Chouteau, 10 Barb., 202; Schenck v. Warner, 37 Barb., 258; Higham v. Ridgway, 10 East, 109 ; Ivat v. Finch, 1 Taunton, 141; Peaceable ex dem. Uncle v. Watson, 4 id., 16.

In Papendick v. Bridgwater, 5 Ellis & Blackburn, 166, it was held that the declarations of a deceased tenant as to the non-existence of a right of common on the part of the owner of the land occupied by such tenant, were not admissible, for the reason that the tenant could not derogate from the right of the landlord or owner of the fee by any declaration he might make. The case was stated to be in effect an exception to an exception. Lord Campbell, C. J., in stating the rule said, generally any declaration of a deceased person on a matter with which he is acquainted, made against his interest, is admissible in evidence. But the learned chief justice continued by saying that an exception to this rule was that you cannot admit in evidence the declaration of a tenant which derogates from the title of a reversioner. The distinction is taken between declarations against interest and those made by one in privity of estate. In the first case, the evidence is admissible without privity of estate, and hence declarations must be not only against interest, but the declarant must be dead, while in the case of declarations by one in privity of estate, the declarations are admissible whether the declarant be alive or dead. (Per Campbell, C. J., at top of page 178 in the 85th Eng. Com. Law Series, reporting above case in 5 Ellis & B.) Lord Coleridge in same case said that if the tenant were alive he would not be called and asked whether when tenant he had or had not the right, for the purpose of cutting down the landlord’s title by the Answer, and how, therefore, could his declaration have any such effect. The court receives declarations of a deceased person against his interest because of the likelihood of their being true, of their general freedom from any reasonable probability of fraud, and because they cannot be set up or proven until the death of the party making them.

We think it plain that the declarations of the deceased grantor Were admissible against the defendant, although the latter claimed nothing under the grantor, and was not, therefore, strictly in privity with him. The principle is discussed at length in Higham v. Ridgway (10 East, supra), and the declarations admitted in that case show the ground upon which the courts proceed. We think the referee committed no error in admitting this evidence.

Secojid. Upon the question of admitting the defendant’s evidence as to what took place between him and the grantor in the deed regarding the delivery to the plaintiff, we are of the opinion the referee correctly decided when he rejected the offered testimony. It seems to come directly within the provisions of § 829 of the Code of Civil Procedure. When the plaintiff proved by third parties the declarations of the deceased grantor made at a different time and upon another occasion than the transaction between the deceased and this defendant, those declarations so proved did not become the testimony of the deceased given in evidence within the section of the Code under consideration.

Although declarations against interest are admitted the same as if the declarant were present and testified in person, yet proof of such declarations by competent third parties is not, within the meaning of this section, the testimony of a deceased person, and it does not open the door for the admission of what would otherwise be plainly incompetent evidence under such section. The cases cited by the defendant do not so hold so far as this has decided them.

The fact that the brother of the plaintiff occupies the same position in regard to his seventy-five acres as the plaintiff does to the land described in this deed, does not render the brother’s evidence incompetent. The record does not fully show that such is the exact fact, but assuming it, the fact itself, while it might go to the credibility of the witness, does not touch the competency of his testimony. Hobart v. Hobart, 62 N. Y., 80. The referee herein has written a most satisfactory opinion in giving his reasons for his various rulings, and it is unnecessary to further elaborate our own.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    The People ex rel. Lawrence D. Huntington et al., App’lts, v. John J. Crennan, as Justice, etc., Resp't.

      (Court of Appeals,

      Filed February 6, 1894.)

    1. Game law—Fines.
    The amendment of 1893 to § 238, chap. 488 of 1892, requires fines ior the violation of said act to he paid to the commissioners of fisheries.
    2. Constitutional.
    Such amendment, though it has a retroactive effect, is constitutional.
    3. Same—Mandamus.
    A mandamus cannot issue to compel a justice of the peace to pay over such fines collected by him, as the statute provides an adequate remedy.
    Appeal from order of the general term of the supreme court in the second judicial department, made December 1,1893, which affirmed an order of special term denying an application for a writ of peremptory mandamus.

    The relators, the board of commissioners of fisheries of the state of New York, applied for a writ of peremptory mandamus to compel defendant to pay over to them moneys collected by him as a justice of the peace for fines imposed for using purse nets in Long Island sound.
    The facts, so far as material, are stated in the opinion.

      Fdward Q. Whittaker, for app’lts; J. F. Coffin, for resp’t

       Affirming 56 St. Rep. 798.

   Earl, J.

During the summer of 1892 a large number of persons were arrested by the state game and fish protector for using purse nets in the west end of Long Island sound, within the boundaries of Westchester county, contrary to the provisions of §135 of chap. 488 of the Laws of 1892. They were taken before the defendant, who was a justice of the peace in that county, and were by him severally fined, and they paid their fines to him, amounting in all to upwards of $1,000. He retained the money, being in doubt whether he should pay it to the county treasurer of Westchester county or to the relators, and he refused upon their demand to make payment to them. Thereafter, in April, 1893, they obtained an order from a judge of the supreme court requiring the defendant to show cause why a peremptory writ of mandamus should not issue against him, requiring him to pay the money to them. Upon the return of that order and the hearing of the motion, the judge denied the motion but without prejudice to the right of the relators to renew it. They claimed the money under the following sections of the act above referred to, to wit:

“ Section 238. The recovery and costs in all actions heretofore brought and remaining undetermined, or hereafter to be brought under the direction of the chief protector or a commissioner in the name of the People, shall be paid to the board of commissioners and such money shall be by it distributed as hereinafter provided.

“ Section 239. One-half of the recovery in all actions heretofore brought, or hereafter to be brought, by ' an individual or society in his or its name, shall be paid to the board of commissioners to be by it disposed of in the same manner as other moneys received by it, and it shall be the duty of the person in whose hands such moneys shall come to pay over the same, and in case of failure so to do, such moneys shall be recovered from the person receiving the same in an action brought in the name of the People under the direction of the chief protector of the commissioners.

Section 240. There shall be paid out of the funds received by the board of commissioners one-half of the fines and penalties collected in an action by the People, to the protector or special protector upon whose information the action was brought; such moneys shall be paid on the certificate of the chief protector that such protector is entitled thereto; such certificate shall be final.

“ Section 241. The remaining money received by the board of commissioners shall be applied to the payment of the expenses of actions for violation of this act on the certificate of the chief protector.

“Section 242. The board of commissioners shall include in their annual report to the legislature a detailed report of their receipts and disbursements under this article.”

The motion was denied, as we suppose, because these sections did not require expressly or by implication the payment of fines to the relators, the claim of the defendant being that they required only the payment of the money recovered in actions brought for penalties. Thereafter, by the act, chap. 573 of the Laws of 1893, passed May 4th of that year, §§ 238 and 240 were amended so as to read as follows:

“ Section 238. The amount of fines imposed or penalties recovered and collected in all actions, settlements, compromises or proceedings hereafter or heretofore brought under the direction of a commissioner or upon the order of the chief protector in the name of the People shall be disbursed by said board as hereinafter provided. Any officer or person failing to pay over any such money recovered by him shall be guilty of a misdemeanor and shall be removed from office, and a civil action may be brought against any such officer or person for the recovery of any such money received by him in the name of the People, under the direction of either of the commissioners.

“ Section 240. The commissioners shall dispose of the fines and penalties received by them as follows: They shall deduct all the expenses incurred in the inquisition or collection of such fines or penalties, and shall pay one-half of the remainder to the protector or special protector upon whose .information the action was brought. Such payment should be made on the certificate of the chief protector that such protector is entitled thereto, and the certificate of the chief protector shall be final.”

The relators then renewed their motion for a mandamus before the same judge, and he denied it on the ground that it was beyond the power of the legislature to deprive the county of Westchester of the fine money to which it was entitled under the law as it stood before the amendment of 1893. The relators then appealed to the general term, and there the decision was affirmed, apparently on the ground that the amendments of 1893 could not have retroactive effect so as to change the title to the money then in the hands of the defendant.

There is no express provision in § 238 as amended requiring the fines to be paid to the commissioners of fisheries, but we think snub payment is fairly and indeed necessarily implied. It is clear to us that the amendment of § 238 was made to put penalties and fines on the same footing, requiring them both to be paid to the commissioners. There could have been no purpose or policy to have the penalties take one direction and the fines ¿mother. Whatever may be said of the fines, the penalties recovered by action were under § 238, prior to its amendment, required to be paid to the commissioners, and it cannot be supposed that the legislature intended by the amendments that now both penalties and fines should go to the county treasurer, under § 726 of the Code of Criminal Procedure, to be used and applied contrary to the policy of the state as manifested in all the previous acts upon the subject. (Laws of 1879, chap. 534, sec. 35; Laws of 1888, chap. 577, sec. 4.) Now the moneys realized from fines and penalties aré to be mingled together into one fund and are to be disbursed by the commissioners. How could they disburse the moneys unless they were paid to them ? It is made a misdemeanor for any officer or person not “to pay over” such moneys. To whom is payment to be made if not to the commissioners ? And payment may be enforced by the commissioners in an action brought by them in the name of the People. The sections cannot have full force and effect and the law cannot be fully administered unless the moneys received for both fines and penalties are paid to the commissioners. All the provisions of a statute must be consulted so as to ascertain the legislative intent, and whatever is necessarily implied in a statute is just as much a part thereof as if written therein. People v. Utica Ins. Co., 15. Johns., 358; Riggs v. Palmer, 115 N. Y., 506; 26 St. Rep., 198.

But it is said that § 238 as amended cannot have retroactive effect, and our attention is called to many authorities which illustrate the rule that statutes are to be so construed as to give them prospective operation only if that is reasonably possible. But these authorities and the rule they establish have no application, because here the legislative intent is plainly manifested that this section shall have retroactive operation. To hold otherwise, we would have to eliminate, the word “heretofore,” which is used in contrast with the word “ hereafter,” from the section. Shreveport v. Cole, 129 U. S., 36; People ex rel. Collins v. Spicer, 99 N. Y., 225.

But the further contention is made that if the section was intended to have retroactive effect, it is unconstitutional, as depriving the county of Westchester of its property in the money without due process of law. The county, prior to the amendment of § 238, had no equitable or meritorious claim to money. It was in noway produced or brought into existence by it or any of its agents. It did not even come from the taxation of any of its inhabitants It came from the criminal violation of the general laws of the state, and assuming that it was payable under the law of 1892 to the county, it was made so payable by a general law. Whatever right the county had to it was not such as an individual has to his private property. The county would take it for a public use under the laws of the state. It can hardly be said even that the. county would take it all. The county treasurer would take it to be disbursed as the laws direct. Until it was actually disbursed the legislature could direct by laws duly enacted the purposes for which it was to be used. It could even direct its payment into the state treasury to be mingled with the other moneys of the state, or it could direct its payment to any officer or agent of the state to be used for public purposes. The legislature could go further and compel payment out of the county treasury of all the expenses attending the enforcement of the game and fishery laws within the county limits. Still more could it arrest this money in the hands of the justice of the peace and thus prevent its payment to the county treasurer. The money was in no sense the private property of the county, and, hence, the county was not deprived of private property by the amended section.

We, therefore, see no reason to doubt that this money was payable to the fisheries commissioners, and we announce this conclusion because the questions bearing upon it were fully argued, and both parties seem desirous that the statute should be construed now so as to save further litigation.

But, nevertheless, this order must be affirmed. A mandamus could not be issued in this case upon the facts now appearing without a departure from a fundamental and important rule of law always observed in such cases, and that is that such a writ will not be issued where the relator has an adequate remedy by action. People v. Supervisors of Chenango County, 11 N. Y., 573 ; People v. Campbell, 72 id., 496; People v. Thompson, 99 id., 641. Here the very remedy provided by the statute for the recovery of this money is an action, and there is no reason to doubt that that remedy will prove in this case to be entirely adequate and effectual.

The order must, therefore, be affirmed, but under the circumstances, without costs of the appeal to this court.

All concur.