author: Dteman, J.:

text:
    CHARLES H. GREENLEAF and JAMES S. BUTLER, Respondents, v. THE BROOKLYN, FLATBUSH AND CONEY ISLAND RAILWAY COMPANY and CHARLES W. KITCHEN, Appellants.

      ■Judgment taken on an inquest must be reviewed by motion not by appeal — a ¡judgment in a partition suit in chancerry imports a seizin of the lands by the pa/rties.

    Where a judgment has been entered upon findings made and filed, after an inquest taken at a circuit, on the failure of the defendant to appear-, the remedy of the defendant is by motion to set aside the judgment and not by appeal.
    In this action of ejectment the plaintiffs put in evidence the record of a suit brought in chancery for the partition of certain lands, among -which was included the lands in question in the present action. The complaint in the chancery suit alleged, and the referee appointed therein found, that one Emmons died seized of the premises described therein. The plaintiffs in the present action also introduced deeds, given in pursuance of the decree entered in the chancery suit, showing documentary title to the land in question.

      Melcl, that this proof was sufficient to sustain a finding that the plaintiffs were seized of the lands; that a judgment for partition in a suit in chancery imports of itself a seizin of the lands by the parties thereto.
    Appeal from an order denying a motion to set aside a judgment, entered on an inquest taken at a circuit upon tbe failure of tbe defendant to appear.

      Wm. C. De Witt, for tbe appellants.

      Winchester Britton, for tbe respondents.
   Dteman, J.:

Tbis is an appeal from an order denying a motion to set aside a judgment, entered on an inquest taken at tbe circuit for failure of tbe defendant to appear.

The action is for the recovery of a long narrow strip of land at Coney Island. At the inquest the plaintiff introduced a decree in partition in the Court of Chancery, between Richard J. Stillwell and wife, plaintiffs, and John Emmons and others defendants. The judgment was entered in June, 1848. The record exhibited the complaint which alleged that the parties named were the heirs and devisees of Johannes Emmons who had died leaving a large amount of real estate which could not be divided without partition, including the property included and described in the deed to the plaintiffs; (a reference was had and the referee reported that Johannes Emmons died seized of the premises); also a deed of release reciting the decree and given in pursuance of the same by Stillwell and others to Johannes Emmons, dated April 6, 1848. Also full covenant warrantee deed from Johannes Emmons to the plaintiff Charles H. Greenleaf, dated September thirty. Also a full covenant warrantee deed for one undivided half of the same lot from Greenleaf to the plaintiff Butler, dated July 27, 1877. Proof was-also made of the identity of the lot and the possession by the defendants. On this proof the trial judge made his findings of seizin in the plaintiffs, and the unlawful entry and possession of the defendants. The practice pursued by the defendants raises a question in relation to the proper mode of review in such a case. The judgment was entered on findings after an inquest, and whether that can be set aside on motion or whether the remedy is by appeal is the question presented by the plaintiffs. They object to the-practice but our examination leads us to the conclusion that the proper course has been adopted. (Flake v. Van Wagenen, 54 N. Y., 25.) The motion to set aside the judgment was properly denied if the evidence adduced by the plaintiffs was sufficient to sustain the-findings, and we think it was.

In the first place it is to be remarked that the action of ejectment is a possessory action, and while the plaintiff must recover on the-strength of his own title, yet it need not be an absolutely indefeasible title against the whole world. A plaintiff may recover against a naked trespasser on proof of possession under a claim of title. All that is necessary in the first instance under our law is- to make a jyrima facie case, and if it be not answered the plaintiff takes judgment. In this case the plaintiffs proved a documentary title. They introduced a judgment in an action of partition and deeds of conveyance executed in pursuance of the allotment provided for in that judgment.

The rule of the Court of Chancery was that it would not take ■cognizance of an action for partition of lands unless the parties had clear title, and a party applying for partition of lands must not only have had a present estate in the premises as a joint tenant or tenant in common, but he must also have been actually or constructively in possession of his undivided share or interest in such premises. (Burhans v. Burhans, 2 Barb. Ch., 398.) It results necessarily, therefore, that a judgment in an action in the Court of Chancery itself imports seizin. The institution of an action for partition in chancery was a direct act of ownership. (Jackson v. Gilchrist, 15 Johns., 89.)

Some objection is raised to the regularity of the proceedings in the chancery suit for partition, but such irregularities only lay the foundation for a claim that they are not conclusive. But it is sufficient for the purposes of the plaintiffs here that they are prima facie evidence of seizin. The decree may be inconclusive against some of the parties named, but the Court of Chancery entertained the suit and assumed jurisdiction of the proceedings, and the presumption of law is that such jurisdiction was properly exercised according to the rules prevalent in the Court of Chancery. It follows, therefore, that the parties to the suit for partition were seized ■of an estate in the lands and either in the actual or constructive possession thereof, otherwise the decree of partition could not have been made. Thus proof is furnished of the seizin of the grantors of the plaintiff sufficient in the first instance, and their title is ■deduced through deeds of conveyance which follow the chancery ■decree.

It follows that the findings of the judge are sustained by sufficient proof, and that the order appealed from should be affirmed, with costs and disbursements.

BaeNARd, P. J., concurred ; Peatt, J., not sitting.

Order denying motion to vacate judgment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    WILLIAM G. NEAVES, Respondent, v. GEORGE W. NEAVES, Individually and as Administrator, etc., of RACHEL H. WILSON, Deceased, and Others, Appellants.

      Will — when a devise to a class includes those only who constituted it at the death of the , testator — after-horn children cannot take.

    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    This action was brought to procure a judicial construction of a. will and to compel the defendant, the administrator thereof, to-render an account of his proceedings.
    •Eachael II. Wilson died on or about the 8th day of July, 1848,. at the city of Mobile, Alabama, leaving a last will and testament bearing date July 2, 1848, which will was admitted to probate at Mobile, and thereafter on the 23d day of July, 1849, was admitted to probate by the surrogate of the city and county of New York. On the 8th day of August, 1849, letters of administration, with the will annexed, were issued to the defendant George W. Neaves. The clause of the will, for the construction of which this action is brought, is as follows: After referring to a fund of $7,000 which then was, and still is, on deposit with the chamberlain of New York city to the credit of the testatrix, the will says: “ Now it is my will and desire that the said sum of seven thousand dollars shall remain vested and secured as it now is, and that my brother, George Washington Neaves, who resides in the city and State of New York, shall receive and have, use and enjoy, in exclusive right and as he may think fit and desire, the interest as it may accrue on the sai.d sum of seven thousand dollars until his youngest child shall become of age, at which time it is my will and desire that the said sum of seven thousand dollars shall be collected and equally divided between my said brother George and his children.” Then follows in the same paragraph, this provision: “And in event my said brother shall die before his youngest child shall become of age, then it is my will and desire that the said sum of seven thousand dollars shall be placed in the hands of some suitable and proper person or persons as trustee or trustees, to be held for the use and benefit of the children of my said brother until the youngest shall become of age, and then it is my will that the said sum of seven thousand dollars shall be equally divided amongst them, the children of my said brother.” At the date of the death of the testatrix, George W. Neaves had but two children living, Amelia G. Gooden ough, then about five years old, a daughter by his second wife, and the plaintiff, "William G. Neaves, then about fourteen months old, by his third ■wife. The evidence shows that the testatrix had seen both of these children. George W". Neaves has resided in the State of New Jersey ever since the plaintiff became'of age, June 4, 1866, and has collected from the chamberlain the income of said fund, amounting to $7,798.16; he has never accounted to any court therefor. George W. Neaves is now living with his fifth wife, and has had in all about nineteen children, of whom eleven are now living.
    Justice Pratt, before whom the case was tried, rendered the following opinion: “ This will speaks from the date of the death of the testatrix and must be read as if she had, in fixing the time of distribution of the fund, used the words ‘ until his youngest child (living at my decease) shall become of age.’ Under any other construction no time for the vesting of the interest is provided. I do not think the after-born children have any interest in the fund. The claim is not barred by the statute of limitations.”
    Judgment was entered accordingly, and all defendants, except Amelia G. Goodenough, appealed therefrom to this court.
    The court at General Term said : “ A devise to a class of persons takes effect in favor of those who constitute the class at the death of the testator, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to consideration in construing its provisions. {Campbell v. Bawdon, 18 N. Y., 412.) When the testatrix died her brother George W. Neaves had two children. The youngest child mentioned in the will was the youngest child living at testatrix death. The plaintiff was such youngest child. When that child became twenty-one the estate was to be divided between George W. Neaves £ and his children.’ These children must be those wh.o were m esse at the testatrix’s death. If the estate was to be distributed upon the youngest child then living becoming of age an intent to include still younger children in the distribution under the general description of ‘ the children of my said brother ’ cannot be drawn from the will itself. There are no extrinsic facts to aid in a construction which will require that result. The testatrix knew that her brother had two children only, and must have intended to create a legal estate in the fund which would not have become vested if it had been made dependent upon the youngest child which might be born of her brother. The limit to a particular youngest child necessarily limited the bequest to the class of children of which the designated one was the youngest.
    “We think, therefore, the constraction put upon the will at Special Term was correct and the judgment should be affirmed.”

      John J. Thompson, for the appellants.

      J. D. Van Hoevenberg, for the plaintiff, respondent.

      W. A. F. P. Mulford, for the defendant Amelia G. Goodenough, respondent.
   Opinion by

Barnard, P. J.;

Dyumah, J., concurred.; Pratt, J., not sitting.

Judgment affirmed, with costs.


author: BabNaed, P. J.;

text:
    JOHN GIESE, Respondent, v. BENJAMIN J. HALL, Appellant.

      Negligence — liability of a master to an employee for inyu/ry sustained by reason of the negligence of a co-employee— amount qf damage.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      The court at General Term said: “ Tbe defendant was employed by an owner of a steamship to unload his cargo of sugar upon lighters. The plaintiff was a deck hand on the lighter J uly lying alongside of the steamship and receiving, a portion of her cargo. The defendant’s men raised from the hold of the vessel the bags of ■sugar, and then attached the bags as they came out of the ship’s hold and lay upon the deck to the hoisting apparatus of the lighter, and then they were lowered to the lighter by the lighter’s men at the direction of the defendant. .There was proof given tending to show that the sling was not jammed tight to the bag, but was left ■so loose that the bag of sugar escaped and fell, injuring the plaintiff. The case is very similar to the case of Tyncm v. Pierrepont, recently decided by this court. It was held that an improper packing of the bag in the sling was evidence of negligence to go to the jury. If the defendant’s duty was to put the sugar on the lighter, and the lighter men acted under his signal, the duty of the packing and the sufficiency of it to continue till the sugar reached the deck of the lighter seems plain. To whom else could the lighter’s men look for ■that carefulness which gives safety when neglect is liable to end in •death or severe injury. The damages are not excessive under the rule governing that question on appeal. The plaintiff’s hip was •dislocated and he suffered severe pain; was in hospital three weeks •and unable to walk for four months. He is still compelled to lay .■all night in one position. The motions of the hip joint are limited. The jury have given $2,750. There is nothing like passion or .prejudice in this amount and the judgment should be affirmed, with costs.”

      William (J. JDe Witt, for the appellant.

      Stephen B. Jacobs, for the respondent.
   Opinion by

BabNaed, P. J.;

Dyeman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Daniels, J.: Beady, J.: Davis, P. J.

text:
    In the Matter of the Application of the THIRTY-FOURTH STREET RAILROAD COMPANY, for the Appointment of Three Commissioners to Determine whether its Railroad Ought to Be Constructed, Etc.

      Appointment of commissioners to determine as to the construction of street railroads — 1884, chap. 252, secs. 5, 14 — when the road cannot he constructed without the consent of existing raib'oads — commissioners will not he appointed when the road: cannot he constructed.

    The petitioner, a corporation organized under chapter 252 of 1884 to construct and operate a street surface railroad in Thirty-fourth street, in the city of New York, having failed to obtain the consent of the owners of the property hounding thereon, applied to the General Term for an order appointing commissioners to determine whether the railroad ought to be constructed and operated. Upon the hearing it appeared from the affidavits read by objecting-property owners that street surface railroads had already been built over the greater part of the route adopted by the petitioner, and that the same were then maintained and operated by the companies owning the same. It also appeared that these companies refused to consent to the construction of the-petitioner’s railroad.

      Held, that the direction contained in section 5 of the said act, that upon due proof of service of notice of the application upon the property owners who> have not consented, the General Term “shall appoint three disinterested persons,” was not intended to be mandatory, and did not, although the refusal of' such owners to consent and notice to them of the application were shown, deprive the General Term of its power to hear and consider objections raised upon the hearing, or to enercise its discretionary power as to granting or deny ing such application. (Davis, P. J., dissenting.)

      That section 14 of chapter 252 of 1884 was intended to and did prohibit the' construction of any surface street railroad in that portion of any street in wnich a street surface railroad was already lawfully constructed, unless the-company owning and maintaining the same consented thereto.
    That the legislature had power to impose that restriction upon the right to construct surface railroads, and that the said provision was constitutional and valid. (Davis, P. J., discussing but not deciding this question.)
    That as it appeared that the proposed railroad could not be lawfully constructed by reason of the refusal of the other railroad companies, already lawfully occupying the street with their tracks, to consent to its construction, the application for the appointment of commissioners should be denied. (Davis, P. J.,. dissenting.)
    APPLICATION on behalf of the Thirty-fourth Street Railroad Company for an order appointing commissioners to determine whether the road should be constructed.

      Qrosvenor P. Lowery and Abram Walceman, for the applicant.

      Horace Bussell, G. A. Hand and Austen G. Fox, opposed.

       Decided July 17, 1885.

   Daniels, J.:

The petitioner is a railroad corporation created and organized under the authority of chapter 252 of the Laws of 1884, to construct and operate a street surface railroad in Thirty-fourth street in the city of New Yort. Its road is designed to be a double track surface railroad, extending over routes as they have been described in the application: “ From connections with the Hudson river, at the foot of West Thirty-fourth street, through, along and upon West Thirty-fourth street and East Thirty-fourth street to connections with the ferry at the foot of East Thirty-fourth street, East river; from connections with this company’s route in West Thirty-fourth street, at Tenth. avenue, through along and upon Tenth avenue to West Forty-second street; thence through, along and upon West Foi’ty-second street to connections with the ferries at the foot of that street, at the Hudson or North river, together with all switches, sidings, turn-outs and turn-tables and suitable stands as may be necessary for the convenient working of such road.”

Notice of the application has been given, as it was provided it should be by section 5 of this act. This notice has been required to be given to each abutting property owner who may be found not having given his consent to the construction and operation of the railroad, and the object to be promoted by giving such notice was to secure to these owners an opportunity to appear and oppose the application made for the appointment and selection of commissioners. The act has not in terms declared that object, but it results from the fact that notice of the application has been directed to be given to the persons withholding their consent, and that could have been designed for no other purpose than to permit them to contest the application for the appointment and selection of commissioners. On behalf of the owners of abutting property on that part of Thirty-fourth street extending from Sixth, easterly to Lexington avenue, the right of the company to the appointment of commissioners has been contested and denied. This portion of Thirty-fourth street, with the exception of church edifices fronting upon parts of it, has been devoted to the erection and maintenance of private residences, many of them of a very costly character. And their owners to a great extent very decidedly object to the construction and operation of the railroad over this portion of the street. In support of their opposition various facts have been relied upon to render it effectual, which may be more appropriately considered hereafter.

The extreme length of the petitioner’s proposed railroad is 12,357 feet, over much the greater part of which other surface railroads have already been built and are now maintained and operated. One of these railroads is that of the Forty-second Street, Manhat-tanville and St. Nicholas Avenue Railway Company. That includes th'e space between the Hudson river and Tenth avenue, for a distance of 1,800 feet. The Forty-second Street and Grand Street Ferry Railroad Company also has its two tracks upon this portion of Forty-second street, and then proceeds by the way of Tenth avenue to Thirty-fourth street, a distance of 2,100 feet, and thence upon Thirty-fourth street to Sixth avenue for a further distance of 3,600 feet. And the New York and Harlem Railroad Company owns, maintains and operates a double track surface railroad in Thirty-fourth street, extending easterly from Lexington avenue to the East river, a distance of 2,301§ feet. These several railroad companies have refused their consent to the construction of the petitioner’s railroad, and upon that fact the resistance has been mainly placed to the success of the petitioner’s application. By section 14 of chapter 252 of the Laws of 1884, under which the petitioner has been incorporated, it has been provided and declared that: Except for necessary crossings, no street surface railroad company shall construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except with the consent of the company owning and maintaining the same, provided, however, that any two or more railroad companies now existing or hereafter formed under the provisions of this act, may join and unite and use each other’s tracks for a distance not exceeding one thousand feet, whenever the court, upon an application for the appointment of commissioners next hereinafter provided, shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed as an independent railroad, and that the public convenience requires the same, in which event the right of such use' shall be given only for a compensation, to an extent and in a manner to be ascertained and determined bjr commissioners to be appointed by the courts, as provided in respect to acquiring title to real estate under chapter one hundred and forty of the Laws of eighteen hundred and fifty, entitled ‘ An Act to authorize the formation of railroad corporations and to regulate the same,’ and the several acts amendatoryjthereof; or by the board of railroad commissioners in cases where the companies interested shall unite in a request for such board to act. Such commissioners, in determining the compensation to be paid for the úse by one company of the tracks of another, shall consider and allow for the use of tracks and for all injury and damage to the company whose tracks may be so used.”

And by its very plain language it has been made impracticable as the facts have been made to.appear, for the petitioner to construct or maintain a surface railroad over so much of these streets as have already been devoted to the construction and operation of the other street surface railroads. To that extent the act is very plain, and was designed to prevent the construction and operation of competing surface railroad lines, against the dissent of the companies whose railroads have been previously constructed and are still in operation. The intention and object of the section throughout have not been declared in such language as to be entirely free from ambiguity, but upon this particular subject no ground has been left for misap-prehen ding the intention of the legislature. It has, however, been suggested that the legislature did not possess the authority under the Constitution to provide or impose this restriction or disability, but the Constitution has nowhere, either in express words or by reasonable implication, deprived the legislature of this power. It has, on the contrary, by section 18 of article 3, invested the legislature with plenary authority to 'pass general laws providing for all the cases enumerated in this section, and one of those cases which cannot be provided for by a special law, is that of granting to any corporation, association or individual, the right to lay down railroad tracks. And it was made the imperative duty of the legislature to pass general laws providing for that object, and chapter 252 of the Laws of 1881 is one of the acts which has been passed by the legislature to provide for the construction and operation of street railroads. Neither this portion of the Constitution, nor any other, has further abridged the power of the legislature than to declare that, “ no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value (of) the property bounded on and the consent also of the local authorities, having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or in case the consent of such property owners cannot be obtained, the General Term of the Supreme Court in the district in which it is proposed to be constructed, may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination confirmed by the court, may be taken in lieu of the consent of the property owners.” Beyond these specified restrictions as to the laws which should be passed, the Constitution has not undertaken to declare, or define, what the act may contain or what may be included in it. It cannot permit a street railroad to be constructed or operated except upon a compliance with these requirements. So far a disability has been imposed upon the legislature, and its legislative authority has been limited, but beyond that no restriction over this subject has been placed upon its legislative power. How the end intended to be accomplished should be secured, after the observance of these restraints, was necessarily left to the judgment and discretion of the legislature; for so far as the act might be made to include sub ■ jects not within these specified restraints it would clearly be within the broad grant of legislative authority made by the Constitution to the legislature, and that includes all legislative authority of every description not restricted or abridged by some express or implied prohibition of the Constitution. This subject was considered in People ex rel. McLean v. Flagg (46 N. Y., 401), where it was said, in the ojfinion of the chief judge, with the concurrence of all his associates, that “all legislative power is conferred upon the senate and assembly; and if an act is within the legitimate exercise of that power, it is valid, unless some restriction or limitation can be found in the Constitution itself. The distinction between the United States •Constitution and our State Constitution is, that the former confers upon congress certain specified powers only, while the latter confers upon the legislature all legislative power. In the one case the power specifically granted can only be exercised; in the other, all legislative powers not prohibited may be exercised.” (Id., 404.) And Bank of Chenango v. Brown (26 N. Y., 467) is to the same effect. So much of the enactment as is contained in section 14 of chapter 252 of the Laws of 1884 is clearly an appropriate exercise cf legislative power. It was entirely judicious for the legislature to prohibit the construction of another railroad in the public streets cf a city so far as' they might previously have been occupied for that object by other companies acting under the sanction and authority of the law. And no refined or purely artificial distinctions can be permitted to stand in the way of the exercise of this legislative authority. This subject was also considered by the same chief judge in People ex rel. Hatfield v. Comstock (78 N. Y., 356), where it was held that “ it must be borne in mind that the senate and assembly possess all legislative power, except when forbidden or restricted by other provisions of the same instrument, and hence it is necessary, in order to successfully challenge the constitutionality of an act of the Legislature, within the purview of legislative power, to find some provision which either restricts or prohibits the power which it has exercised. Every presumption is in favor of its validity.” (Id., 361.) Bet veen this section of the act of 1884 and the Constitution there is neithe'r a direct nor manifest conflict, for it in no manner restricts, limits or enlarges what the Constitution in any form has declared shall or shall not be done. There is no provision either in this or any other part of the Constitution which has declared expressly, or by implication, that a railroad company shall be entitled to construct and operate its railroad over that portion of a public street in a city which has already been devoted to or appropriated by another railroad. These provisions of the Constitution have wholly been directed to other subjects. Their object has been to prevent the construction of railroad tracks under the authority of a special law, and to require it to be done through the instrumentality of a general law. And even when a general law may be enacted, before a railroad can be constructed under its authority, it has been made requisite that the consent of the owners of one-half in value of the property bounded on that portion of the street or highway, upon which it is proposed to construct or operate the railroad, as well as the consent of the local authorities having control of that portion of the street, shall be first obtained. And if the consent of such owners cannot be obtained, then the General Term of the Supreme Court may appoint three commissioners, whose determination, confirmed by the court, shall stand in the place of the consent of the property owners. So much has been required for the observance of these provisions of the Constitution, but no more than that has in any form been declared. And, consequently, the entire range of legislation beyond that was within the authority, judgment and discretion of the legislature itself. And the prohibition which is now under consideration was plainly within that extent of legislative power, for it has not been declared that the legislature could make no further requirements than those declared by these provisions of the Constitution. All that has been declared is that these restraints shall be observed, and beyond them what further may be required for the protection of either public or private interests, has necessarily been confided to the good sense of the legislature. Over these streets it has control, and could determine and declare, as it has by this enactment, what further restraints should be imposed upon a street railroad company, before it should have the right or privilege of using the streets for the construction and operation of its railroad tracks. This part of the act, therefore, cannot be disregarded as a violation of any of the provisions or restraints of the Constitution, but it should be considered a proper and judicious exercise of legislative power, and as such required to be observed by the court in the disposition of this application. And as it has been made entirely evident, from the fact that the consent of these other railroad companies lias been withheld from the construction of' the applicant’s proposed road, that the appointment of the com* missioners to hear and determine the parties interested and report whether the railroad ought to be constructed, would be entirely futile, the application should not be allowed to prove successful.

It has been suggested that the court has no discretion which it is at liberty to exercise upon this subject For by section 5 of chapter 252 of the Laws of 1SS4, it has been provided that upon due proof of the service of the notice required to be given, the General Term “ shall appoint three disinterested persons who shall act as commissioners.” But that this was not intended to be mandatory is quite clear from the preceding portions of the act. For if upon mere proof of service of the notice it should become the unqualified duty of the court to appoint the commissioners, there could be no useful object whatever in requiring it to be served. It would be no less than absurd to require a notice to be given to the parties opposed to the construction and operation of the railroad, and upon their appearance before the court to deny them the right to object, as that would be denied if the commissioners must be appointed upon mere proof of service of the notice. That could not have been the design of the legislature. But what was intended, as has already been observed, was, that the property owners opposing the construction of the railroad should be afforded an opportunity of resisting the application for the appointment of the commissioners, and to secure this opportunity to them this notice was required to be served.

The act, therefore, although in form mandatory, is required to be constructed as merely authorizing the court to appoint the commissioners if the exercise of that authority shall appear to be discreet and just, after hearing the parties opposed to the construction of the railroad. And that this was the design of this portion of the law is made further evident from the provisions contained in the Constitution itself, for by those provisions it has been declared that the General Term may ” upon application appoint the three commissioners. And it is not to be supposed, as long as a different construction is well warranted by this portion of the act, that the legislature designed to render the duty of the court any more imperative than that had been prescribed by the Constitution itself. The rule of construction, on the contrary, would require the act, as that may be done in view of its other provisions, to be harmonized with the Constitution, and to leave the power to be exercised by the General Term discretionary in its nature.

Instances do undoubtedly arise where the word may,” which has been employed as descriptive of the powers of the General Term over this subject, has been construed to be mandatory and of the same effect as the word “shall.” But that construction has not been given to the word “ may ” when it has been employed as it is in this part of the Constitution of the State. For by no part of that which precedes or follows this delegation of authority has the Constitution employed language indicating it to be the duty of the court to appoint the commissioners, as a matter of course, where the consent of a majority of the property owners cannot be obtained. And it is a remarkable fact that under the Constitution, with very slight exceptions, this word “ may ” has only been employed when it was intended that the power to which it referred should be of a discretionary character. Section 8 of article 1 and 7 of article 5, seem to be exceptions to this rule, but in other cases where the intention has been manifested that the directions of the Constitution shall be imperatively carried into effect the word “ shall ” has with great uniformity been employed. More care in this respect has been observed than is usually applied to the enactment of statutes. And as the word “ may ” has been so understanding^ employed in the Constitution, it must be allowed to have its ordinary force and effect in its provisions where, from the subject-matter to which it relates, or from the context, no different intention has been manifested. In this part of the Constitution the word seems to have been used in the ordinary understanding of its signification, and it stands immediately in contrast with the declared duty of the commissioners after they shall have been appointed, concerning whom it has been said that they “ shall determine,” after a hearing, etc., whether the railroad ought to be constructed. Even if this language had been included in the enactment of a statute, it would require the same construction to be given to it. For it is a rule of construction which has been applied to tbis particular word, that “ tbe ordinary meaning of tbe language must be presumed to be intended unless it would manifestly defeat ■tbe object of tbe provisions.” (Minor v. Mechanics' Bank, etc., 1 Peters, 46, 64.) No antecedent duty bas been required tobe carried into effect by tbis provision of tbe Constitution, and no existing public or private interest bas been designed to be specially protected by it. And for that reason also tbis construction of tbe word “may” is clearly warranted. In tbe cases where it bas been differently construed that construction has been given to it to carry into effect what, under tbe circumstances, was justly considered to .have been tbe intention of the legislature. Where tbe power conferred bas been provided for rendering a duty effectual, or for promoting tbe ends of justice, or securing public or individual interests, there tbe term bas been construed to be mandatory. But where it is merely indifferent whether a thing shall be done or not, then tbe word may, in an act, is usually construed to confer a permissive authority. But where tbe public interest or private right requires that tbe thing should be done, then tbe word may is .generally construed to mean tbe same as shall.” (People ex rel. Conway v. Supervisors, 68 N. Y., 119, 155; Hagadorn v. Raux, 72 id., 583, 586; People ex rel. Otsego Co. Bank v. Supervisors, 51 id., 401.)

From tbe manner in which this word “ may” bas been used in ibis part of tbe Constitution and its relation to the subject provided ■for, it can, therefore, only be construed as designed to have been permissive, and to empower tbe court, upon tbe application for tbe appointment of commissioners, to determine, under all tbe circumstances, whether tbe appointment should be made.or not. And where, as in tbe present case, it bas been made entirely evident that the proposed railroad cannot be lawfully constructed by reason of tbe refusal of other railroad companies already lawfully occupying tbe streets with their tracks to consent to its construction, tbe .appointment of commissioners should not be made. For tbe bearing and report, if it should be favorable to tbe applicant, would, under tbis prohibition of tbe statute, be entirely without effect. And it could not have been intended by tbe Constitution that an .appointment necessarily resulting in that manner should be made at all.

It bas also been shown by the affidavits produced on the part of the-contestants that the amount of travel upon the portion of Thirty-fourth street bounded on the east by Lexington avenue and on the west, by Sixth avenue is so slight as not to require, for the convenience of the-public, the construction of this railroad. It has been further shown that the street is not at this time adapted to any prospective purposes-of business, but within these bounds must continue to be used for private residences; that the value of the private property within these-boundaries is the sum of about ten millions of dollars, which, in the judgment of persons familiar with it, would be depreciated to the extent of three millions, by the construction and operation of a railroad between these points. ■ These facts have not been denied, and. must for that reason be regarded as having been established by the affidavits. And they supply a further, as well as a very cogent reason, for rejecting the application now made to the court.

Under all the facts as they have been presented, that seems to be the plain course of duty. And as this court is required to exercise-, its judgment upon the propriety of the application, and the commissioners cannot as the law has been enacted be appointed with benefit to the applicant or advantage to the public, and the property of the abutting owners on this portion of the street would be seriously depreciated by its success, the application which has been made-should be denied.

Beady, J.:

The question discussed by Justice DaNiels did not arise on the application of the petitioners in the Broadway surface railroad proceeding.

The petitioners herein seek to occupy roads already built when a consent cannot be obtained for that purpose, and it is patent now ■ that such is the fact. It cannot be gainsaid. The contestants should not be required to appear before the commissioners who-might be appointed and there present their objections, when it now appears that a fatal infirmity exists. The consents contemplated in such a matter as this are not only those of the owners and the city,, but of the companies having rails already in use. This court has no power over these companies or their rights under the act. If the last prerequisite may create objectionable monopolies, it is for tbe law-makers to change the statute on the subject. We have not the right to do it. The legislature may well have thus provided in ■order to protect franchises perfected and in use when the act of 1884 was passed, and which might be seriously invaded if other companies could use its tracks nolens miens..

This court should not, in this or any other proceeding, permit as a means to an end, the employment of any process when it is apparent that a special lawful impediment exists, and the result in view cannot therefore be attained. The opponents having general reasons for contention should not be subjected to the expense and trouble of a contest under such circumstances. If the commissioners should report in favor of the projected road, the petitioners ■could not succeed unless the consent suggested was obtained, and this result is a complete answer to the propriety of appointing the ■commissioners now.

I agree therefore with Justice Daniels, fhat we have presented to us at the threshold of this matter an objection which calls upon us to deny the application for the appointment of commissioners.

Davis, P. J.

(dissenting) :

It is due to the elaborate and able opinion of my brother Daniels that I should state the reasons that prevent my concurrence in his views and conclusions. This I shall do briefly and so far as practicable without elaboration. I agree that the statute is to be so •construed as to harmonize with the provision of the Constitution, .■and that the use of the words “ shall appoint,” as they appear in the statute, does not present a case of excess of authority by the legislature, because the Constitution uses the words “ may appoint.” On the contrary, it is the duty of the courts to regard these several phrases as expressing the same idea, to wit, the duty of the General Term of the Supreme Court to carry out the plan of the provision of the Constitution whenever an appropriate case for its execution Is presented to the court. Neither phrase was used for the purpose of conferring on the court any power beyond that essential to set in motion the machinery contemplated and authorized by the Constitution.' The provision of the Constitution was intended to interdict absolutely all special laws for the creation of such railroad corporations as are within its description, and within the mischiefs aimed to be prevented; and at the same time to provide by general, laws for an effective mode of securing the construction of railroads by corporations created thereunder, whenever the public exigencies- or necessities demand. For the construction of street railroads two things are made primarily essential: First. The consent of the' public authorities having jurisdiction of the streets to be occupied. Second. The consent of the owners of the real property abutting on the several streets to be affected. But as it was manifest that it might occur that the abutting owners might refuse assent, owing to-real or supposed local injuries, in cases in which the greater public' interest would require the construction of the road notwithstanding such refusal, the Constitution provided for such cases by creating a special forum, in which the question whether the railroad ought to be built notwithstanding the refusal, could be fully and fairly tried ; and in which forum such owners and all parties interested in the general question should be entitled to be heard in and by all the familiar modes of trials of questions of fact before such a body, and whose report and determination, if favorable to the construction, when confirmed by the General Term should stand in place of the consent of such owners. Power was therefore conferred by the Constitution upon the General Term of the Supreme Court, in a case where the consent of a majority of the owners along a. street in the line of the proposed railroad could not be obtained, upon pi’oper presentation of that fact, to appoint three suitable commissioners to hear, try and determine the question whether the-road ought to be constructed, notwithstanding the inability to procure such consent. The scheme is a very simple one. It confers upon the court, a naked power of appointment of commissioners for a clearly specified purpose. It gives no power to the court to hear, try or determine, in the first instance, the question that is to be sent to the commissioners. That power is given to the commissioners alone; and it- is only when their report, with the-evidence laid before them, and the reasons assigned- by them for their conclusion are brought before the court .for confirmation that the plan of the Constitution permits the court to exercise jurisdiction or discretion over the question submitted to the commissioners, whether the road ought to be constructed notwithstanding the antagonism of abutting owners.

It is thought and argued that because notice is required to be giren to the non-cousenting owners of the application for commissioners, therefore such owners may be heard by the General Term, not only on the question whether a case is shown by the petitioners in which the Constitution authorizes and directs the appointment of commissioners, and upon the question who are suitable persons to be appointed, but also on the very question which the Constitution directs to be submitted to the commissioners. In other words, it is claimed that the Constitution is to be read as though it provided that the question whether the road ought to be constructed without the consent of the abutting owners shall be sen i to commissioners if the court- shall first decide on a hearing of the parties interested that it ought tobe so constructed. That this is not the meaning of the Constitution is manifest to my mind, because no adequate means are provided for such a hearing by the General Term in the first instance. Nothing is provided for but the presentation by proper proofs of the fact that a majority of abutting owners have refused to consent, or rather .that their consent cannot be obtained, and that they have been duly notified of the application for the appointment of commissioners. These two facts being satisfactorily established clothe the General Term with jurisdiction to do only what the Constitution enjoins, to wit, to appoint commis-sionei's. The owners and other parties notified, or being in interest, may come in and be heard on the questions thus presented. They may show that consents have been given and, therefore, no com-missionei’s are necessary, or that consents have not been properly applied for, or have not been refused, or any material facts bearing upon those questions ; or any fact touching the suitability of persons named or to be named as commissioners. In other words, they may contest the questions presented by the application, and material to the right claimed by the petitioners, to have commissioners appointed on the ground of inability to get consent of a majority of owners along the street, but'they are not at liberty to try before the court on their ex parte affidavits or otherwise the question to be tried under the Constitution by the commissioners alone. The court are not commissioners, and are not recognized as such by the Constitution or the law. They are at this stage of the proceeding a mere part of-the scheme of the Constitution through which commissioners are to be called into existence and set in motion to hear and determine the grave question which the constitution commits primarily to them alone. The General Term in doing this, act ministerially rather than judicially. For the court to undertake to try and decide the question whether or not the railroad ought to be constructed notwithstanding the refusal of owners as one that shall control the appointment of commissioners, as it may hold upon it favorably or adversely to the construction of the road, is in my opinion mere usurpation. I am not considering whether or not my brother DaNiei.s has reached a correct conclusion upon the ex parte affidavits before us, that the railroad of petitioners ought not to be constructed, because, firstly, I think the court has no power at this stage of the proceedings to pass upon that question; secondly, if it had power it ought not to be exercised upon ex parte affidavits and without the trial contemplated by the Constitution at which witnesses can be orally heard and examined and the opportunity given to both or all sides to present proofs, reasons and arguments, as they shall be advised. The trial by the General Term on the papers now before it resulting in a refusal to appoint commissioners, seems to me a mere travesty of the scheme of the Constitution which we are bound to respect and protect. The reasons urged for our denial of the appointment by my learned brother, may with great propriety be urged before the commissioners and be held, if they think them well founded, sufficient to warrant an adverse report, bat we have nothing to do with them in the form of 1/riers till they come before us in the report of the commissioners with the proofs duly taken . and first passed upon by them. This was the course taken by the General Term in the Broadway railroad case; and after the commissioners had 'made their report the General Term proceeded to consider its propriety upon the evidence and facts reported, and to affirm the same, against my dissent. The same course as to the form of procedure should be taken here, for this court will ultimately on the coming in of the report, etc., have jurisdiction to confirm or reject the conclusions of the commissioners as shall seem equitable and just to its constitutional discretion. But it is urged and elaborately argued, that the General Term should deny the appointment of commissioners, because it appears that other street railroads are constructed and in operation upon some portions of the projected route of the petitioners, and it is not shown that they have consented to the construction of the petitioners’ road along the portions of the route so occupied by such other street railroad. It is first to be observed that the existence of such roads is in itself no objection to the construction of other roads. The sting of death is supposed to ■be in the want of the consent to construct another road in the same street. Affidavits are produced to show that such consent has ■not been obtained and as the affiants believe will never be given. There is nothing in the law to make it essential to obtain such consent before it shall be tried and determined by commissioners whether the railroad ought to be constructed notwithstanding the refusal of consent by abutting owners of some street or streets on its route; nor is that fact any valid reason for refusing to appoint commissioners, because non constat that after it is found ■(if it shall be) that the road ought to be built, the other railroad will persist in refusing consent. The presumption ought to be that when it is shown that the public interest requires that another railroad should be constructed to accommodate another route, the mere fact that in doing so it must pass along some portion of a street already occupied by an existing railroad will not be seized upon by the latter to defeat a public demand. But the argument ■stands upon the popular faith that a corporation of this character is a concentration of human selfishness freed by law from all moral responsibilities, and therefore the present occupying railroads will withhold consent forever. This assumption is easily overthrown when the fact is recalled to mind that no such corporation was ever known to stand out long against its own interests ; and whenever it is^made to appear that it is for the interests of the occupying railroads to consent those companies will speedily show that one refusal’s no rebuff.”

It is the right, therefore, of the petitioners, if they can do so, to put themselves in the position to apply for the consent of the other railroads in an effectual way, and test the question whether it can be rightfully refused or cannot be obtained by suitable arguments or arrangements. To treat the assertion, made on ex parte affidavits, that such consent cannot be obtained, as conclusive of all right of a newly projected railroad to construct a public improvement, is in my judgment against public policy and imminently injurious to all improvements. It is to establish by a judicial act a most dangerous and fatal monopoly, which may be wise in this case, but in some cases would result in vesting an inefficient and contemptible-railroad, which has lawful possession of a few rods of some street through which a most important public improvement must pass, with power to defeat and forever prevent its construction; and also-from even trying the question whether or not it ought to be constructed in the mode provided by the Constitution. The petty horse railroads of this city ought to have no such absolutely controlling-power. Their modes of locomotion are destined ere long to give-way to more rapid, cleanly and healthy kinds of travel, to the relief both of man and beast on the cars, and to the great advantage of the traffic and commerce of the city and the well-being of its citizens. I am not content to hold that a constitutional proceeding by a newly projected railroad corporation to try a question affecting-one street however important it may be can be defeated altogether by the present refusal of a railroad now in possession of a portion of some street on its general route. The rule sought to be applied, to this case will necessarily have that effect in all cases, and it ought not, therefore, to be applied. For nothing is more injurious to-public interests than to clothe our present street railroads with an absolute veto of all the probable or possible advances of science- and invention in the modes of using the public streets.

I do not doubt that this objection with all others suggested maybe-presented to the commissioners who will have full opportunity to examine and ascertain all the force and effect that should be allowed to-it; and that it may, if the facts of the case seem suitable, be deemed by them a sufficient reason for an adverse report (in which case this-court can review their conclusion), but it ought not- to be established as a fatal bar to a motion for an opportunity to be heard before-a commission on that and the other questions involved in the-application.

If we hold, in accordance with the views expressed and urged by my brother Daotels, it will be of no consequence that every person owning lands abutting the street or part of a street occupied by the non-consenting railroad, has consented and is anxious to have the projected road constructed, or that the street is so wide that both can be amply accommodated without injury to either; or that the: new road will accommodate vast numbers of people, while the old one is a mere nuisance to the general ¡public, for the decision will clothe it under the law with a monopoly gross and odious — a chartered counterpart of the fabled “ dog in the manger.”

I do not now discuss whatT-consider to be a very grave question whether the legislature has power under the constitutional provision to turn over to any existing corporation the absolute and final right to say whether or not a like corporation may be created and exist for the public benefit. What is done by the act under consideration, is to empower one corporation organized for a public use and authorized to occupy a public street in the exercise of its-functions to declare that under no circumstances of public necessity, though all the public authorities having jurisdiction of the street consent, and all the people interested in the subject-matter agree to-its benefit and necessity, shall any other railroad occupy any portion of the same street. It is true.the legislature is omnipotent in legislation where not expressly or by necessary inference restrained by the Constitution. But legislating by its own act is one thing, and making over its power of legislation to another body or corporation is another and different thing. And especially is this so where the power conferred upon a corporation is to declare and make itself an absolute monoply to take and hold against all comers the right to use a public street when the interest of the public require its use to be extended to another similar corporation. The legislature may undoubtedly enact by law, that but one railroad shall exist in any one street; but it may well be doubted if it can enact that an existing corporation shall have the power of absolute control of that same question The point would be sharply presented if in enacting the general railroad law, the legislature had enacted that no railroad parallel to-that of the Hudson River and New York Central Railroad Company should ever be constructed from New York to Buffalo, without the consent of that corporation. Such an abdication of legislative functions would be handing over to a railroad corporation a most important legislative power, which the Constitution requires to be exercised by the legislature only, and would in spirit be hostile to that provision of the Constitution which forbids railroads to be constructed by special law but allows their construction under a general law, and prescribes the mode of obtaining consent of owners and the process to be substituted for sucb consent for determining whether they ought to be built. To subordinate the constitutional provision for meeting the demands of public interest and necessities, by the construction of street or other railroads, to the will of existing corporations, with which they may come into competition, is a mockery of its plain intention; for under the general laws authorized by the Constitution, the question must always be, what do the public interests require, and not what will some existing corporate monopoly consent to.

The Constitution intended to open such questions by general laws to all the people, not to shut them up forever for the benefit of existing corporations; and legislation to accomplish the latter defeats ■the intent and object of the Constitution. I am not able therefore, to concur with my brethren. On the contrary, I think the only subj’ect for the General Term to pass upon now, is whether the petitioner has shown that a majority of owners along that part of the route under consideration have refused to consent to the ■construction of the petitioners’ railroad.

The commissioners must, in the first instance, take care of all the other questions, subject, of course, to the power of the General Term, which is most ample, to review their report whenever it comes in as shall then appear to be just and equitable. It is, I thinks well settled law that where, a duty to appoint commissioners to hear and determine a specified question is conferred by statute upon & court or any other body, upon the presentation of certain facts, the duty is so far administrative in its nature that the obligation becomes imperative, even though the language used by the statute might under other circumstances be regarded as conferring a mere discretion. (People ex rel. Conway v. Supervisors, 68 N. Y., 115; Hagadorn v. Raux, 72 id., 583; People ex rel. Otsego Co. Bank v. Supervisors, 51 id., 401.)

Such action does not m any sense permit the appointing body {where authority to review the action of the commissioners is conferred) to pass upon any question whatever, beyond that of the sufficiency of the proofs showing that the fact exists which authorizes the court or body to appoint commissioners. I think the affidavits presented in this case do show that the consent of a majority of the property owners of that part of the route of the petitioners’ proposed road affected by this proceeding cannot be obtained, and the petitioners are entitled to have commissioners appointed. For these reasons I dissent from the denial of the motion.

Motion denied.


author: Daotels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HERMAN R. BOLTZER, Plaintiff, v. GEORGE H. DALEY and Others, Trustees of the Village of Edgewater, Defendants.

      Construction of statutes — repeal of the provision, of a special act by a gen&ml act — sub. 13 of tit. 9, chap. 674 of 1870, repealed by chap. 270 of 1885 — right of citizen to compel a public officer to perform his duty.

    Chapter 270 of 1885, providing for the preservation of the public health and the registration of vital statistics, was passed to provide a uniform system for the organization of hoards of health throughout the State, and it is applicable to every incorporated village in the State, except those in which boards of health, separate and distinct from the trustees of the village, existed at the time of its passage.
    Subdvision 12 of title 9 of chapter 674 of 1870, the charter of the village of Edge-water, empowering the trustees of the village to take such measures as they might. deem proper for the prevention or removal of any pestilential or infectious disease, and constituting them the board of health of the village, was repealed by the passage of the said act of 1885, and from and after that time it became the duty of the said trustees to appoint a board of health for the village as thereby required.
    In case the trustees fail to comply with the provisions of the said act any citizen of the village may apply to the court for a mandamus to compel the trustees to appoint and organize the board of health as required by the act.
    It is the fixed and established rule of this State that every citizen has a right to compel the performance by public officers of the duty imposed upon them of executing the laws of the State, which are enacted for the benefit of the community.
    Case -agreed upon and submitted to tbe court for its decision under the authority o£ section 1279 of the Code of Civil Procedure.

      J. Henry Work, for the relator.

      Stephen D. Stephens, for the trustees, etc.

       Decided July 17, 1885.

   Daotels, J.:

Tbe application made to the court is for a writ of mandamus, directing the defendants, as trustees, to appoint a board, of health for the village of Edgewater. It has been resisted by the trustees upon the ground that by subdivision 12 of title 9 of chapter 674 of the Laws of 1870, the trustees were empowered to take such measures as they might deem proper for the prevention or removal of any pestilential or infectious disease, and constituting them the board of health of the village. This provision, it is conceded, was superseded or repealed by chapter 160 of the Laws of 1872, but as chapter 586 of the Laws of 1874 repealed this act of 1872, this subdivision contained in the village charter was again restored by • virtue of the effect which the act of 1874 is entitled to as a repealing act. And if the laws since enacted have not divested the trustees of the authority given to them as the board of health of the village, then there is no legal ground upon which the present application should be permitted to succeed. Whether that has been done by the legislation since enacted is, therefore, the controlling point upon which the alleged duty of the defendants must necessarily depend.

By chapter 324 of the Laws of 1850, the common council of every city, and the trustees of every incorporated village, in the State in which there was not then a board of health duly organized, was required once in each year to appoint a board of health for such city or village, to consist of not less than three nor more than seven persons. By chapter 431 of the Laws of 1881, the duty so enjoined was continued, except as to the cities of Brooklyn, New York, Yonkers and Buffalo. Further legislation for the attainment of the same end was enacted by chapter 351 of the Laws of 1882, and minute as well as specific regulations were prescribed to render the board of health entirely efficient and to secure a complete observance of their legal orders and directions. By chapter 270 of the Laws of 1885, the city of Albany was added to the exception, and the law was rendered still more complete and extended in some of its provisions. The obvious policy of all of these general laws has been to provide for the creation and organization of a separate and distinct body of officials as a board of health in the several cities and villages referred to in their provisions. That this was the intention of the legislature has been evinced by the general scope and character of the legislation itself, for in the cities not excepted it has been made the duty of the common council, upon the nomination of the mayor, to appoint the members of the •board of health, and in every incorporated village in the State it has been declared by the act of 1885 to be the duty of the trustees once in each year to appoint a board of health for each village. And the village trustees themselves are rendered ineligible to appointment as members of that board, for the persons to be selected are not to be trustees of the village. The exception of villages from the obligation to exercise this authority, extends no farther than to those having existing boards of health. "Where such existing boards may be found, the act, it has been declared, shall not be construed to remove them. But it has not, by this restraint of the general direction contained in section 1 of the act of 1885, been declared that the .authority of the village trustees as a board of health, was not to be annulled or superseded by the very general direction contained in it. "What it has declared is that it shall not be construed to remove any of the existing boards of health, which is language not appropriate where, the trustees of the village may themselves have been invested with the powers and authority of a board of health. By construing the act to have been enacted to supersede the authority of the trustees in this respect, they will not be removed from their offices, but certain of their official functions will be terminated, and it is only to the removal of existing boards that the jn’oliibition of the statute has been applied and directed. That this was the intention of the legislature is evinced by the provision contained in the •exception, that the successors of the existing boards shall be ■appointed as that has been provided for by this section. These successors were clearly not intended to be successors in office of the trustees of the village, for the appointments themselves are to be made by that body, and the persons to be appointed successors are to be the successors only of members of existing boards of health. If this language should not be so construed, then no separate or distinct board of health could be appointed or organized in any village whose charter contained the provision Avhich was included in the charter of the village of Edgewater, for the successors in such a case could only be successors in the office of trustee, who ex-officio become as such members of the village board of health, and their successors have been in all cases required by law to be elected or appointed by the other members of the board of trustees. A different construction would perpetuate the authority which it was one of the objects of the act of 1885 to abrogate, - of having the trustees themselves and the board of health constituted by precisely the same persons. The further provision upon the same subject, contained in section 2 of the act of 1885, for the filling of vacancies, also fortifies and sustains this construction, for it clearly contemplates that the vacancy is to be filled when it may occur, by a body distinct and different from that of the board of health itself. And it has accordingly provided that if the proper authorities, which, in the cases of villages are the trustees, by inability, neglect or refusal fail to fill a vacancy, it shall be the duty of the county judge of the county, upon being satisfied that such vacancy should be filled, without delay, to appoint in writing a competent person to fill such vacancy for the unexpired term. And that has not been permitted to be done where the vacancy is in the office of a trustee, which, by the statutes of the State, must either be filled by election, or by the appointment by the other members of the board of trustees. What the act of 1885 intended to perpetuate and continue in authority was the several boards of health then organized, and not to continue the authority which might previously have 'been vested over the same subject in the board of trustees of a village. The boards to-be continued have been designated by section 3 of the act of 1885 as boards of health now organized, which phraseology would not be entirely pertinent or applicable to a board of village trustees vested with the powers of a board of health. But what the law seems to-have regarded was a distinct and separately organized body from that of the trustees themselves. And it was to the body so organized, that the powers created by the act of 1885, and the preceding laws upon this subject were intended to be given by the legislature.

This act of 1885 has been made a general law of the State, and was probably intended to be construed in view of the preceding general legislation upon the same subject. By that legislation provision had been made for the organization of a board of health by the appointment by the trustees of'a village of one or more health commissioners, who, with the president of the board, should constitute the board of health of the village. (2 R. S. [6th ed.], 594, § 8.) And tbe observance of that authority would secure, where no other or different local provision had ‘been or should be made, the organization of a board of health, as that was contemplated by the last clause of section 1, and by section 3 of the act of 1885. In all villages to which the act of 1870 applied, boards of health would exist through this mode or manner of them organization. And they would exist distinct and separately from the board of trustees, and so far would be within the spirit and system of these other general laws. It is not to be supposed that all the provisions contained in mere local enactments were at the time of the enactment of the law of 1885 in the mind of the legislature. It was providing regulations for the general health of the State and designed to make uniform provisions upon that subject, beyond the cities specially and expressly excepted. And in making those provisions it may reasonably be assumed that the other general provisions of law, upon the same subject, were all that were in the contemplation of the legislature. And to harmonize those provisions with what had been done under the preceding general laws of the State,- they were so far restrained in. their effect as not to be permitted to remove the existing boards of health, as such boards had in numerous instances come into existence under the authority of the section contained in the Revised Statutes which has already been considered. -It was the purpose of the later act to continue such boards in existence until their successors were required to be appointed, and then to require that to be done by the trustees of the village .in the manner mentioned in the act of 1885. That this act was intended to include and relate to only such boards of health as are distinct and separate from the board of village trustees is further manifested by section 5, directing that all the expenses of the several boards of health should be audited, levied and collected as other village charges are audited, levied, collected and paid, for that has been required to be done by the board of trustees of the village in which the expenses may be incurred. This has generally been provided for as to villages incorporated under the act of 1870 (2 R. S. [6th ed.], 595, § 9), and it has been so also specially provided by the charter of this particular village. (Laws 1870 [vol. 2], 1564, ch. 674, sub. 19.)

Greater care has also been taken to render the act of 1885 gen-©rally applicable than was taken in tbe enactment of the laws of 1881 and 1882, for they repealed only such acts and parts of acts as were inconsistent with their provisions, while the act of 1885 has been made so much more extended as to repeal even special provisions inconsistent with those contained in it. And the section of the charter of this village declaring its board of trustees to be its board of health is inconsistent with the direction contained in the act of 1885, making it applicable to every incorporated village in this State, and only excepting from that provision villages having existing boards of health, which existing boards of health were manifestly intended to be distinct and separate. boards from the board of trustees of the village.

It is not necessary to consider whether the acts of 1881 and 1882 should have been in like manner construed from the general language employed in them. It is sufficient for the present purposes to determine the construction which should be given to the act of 1885, as that was'designed as a general law for the government of the State, subject to the exclusion of certain excepted cities. It is to be inferred from the enactment of this law that the legislature was not satisfied with the laws then existing upon the same subject, and that this law was intended to meet what were regarded as the necessities of the different localities included in it, and to provide a uniform system for the organization of boards of health distinct and .separate from that of the trustees of the village, and only to perpetuate and continue organizations previously made consisting of separate boards from the village boards of trustees.

The relator is shown to be a citizen and taxpayer of the village, and entitled, therefore, to claim that the provisions of the act shall be observed and carried into effect by the appointment and organization of a board of health in compliance with its directions. And that he may invoke the exercise of the power of the court to accomplish this end is reasonably well settled by authority. Upon this subject it has already been held that a citizen of the locality to be affected is entitled to apply for a writ of mcmdamus requiring the authority of such a statute to be carried into effect. Upon that subject what has been so considered and held may here be appropriately repeated, and that is, that it is only when the application for the writ is made to secure some personal or private redress, that the applicant must be shown t© be interested in obtaining it before tbe writ can be directed to issue. Where the act omitted to be performed affects the public interests generally, and all citizens are equally concerned in securing its performance, and that has been •enjoined by a law of the State, a different rule prevails. There it is sufficient to support the application that the applicant is a citizen -and entitled to insist upon the execution of the laws of the State. 'These laws are made for the promotion of public order and individual security, and accordingly every citizen has a sufficient interest in their execution to entitle him to prosecute an application of this description. Laws are enacted for the well-being, good order and .security of the community and of its constituent members. Public officers. are provided for, elected and appointed to execute their provisions, and where they designedly fail or intentionally omit to •do that every citizen has the inherent right to apply to this court and insist upon it that the writ of mandamus shall issue in such a form as to secure the observance of that duty. The authorities in this, and several of the other States, and those also of the Court of King’s Bench in England, have gone very far in supporting this proposition. In fact the utmost limit of judicial interference has been reached for the purpose of sustaining the right of private persons to insist upon the performance of public duties by public •officers.’ An extreme case was that of The King v. Brown, a note of which will be found in 3 Term, 574, under the title of Pex'v. Smith, where an application of this nature was sustained against the common councilmen of York, because they had failed to observe the requirement of an act of parliament declaring that corporate officers generally, as a qualification for holding their offices, should receive the sacrament within six months. The interest of the applicant in the observance of this duty was extremely insignificant, and yet the application was sustained because it was made to enforce the observance of an act of parliament which interested all the corporations in the kingdom. This authority, as well as others maintaining the same general conclusion, were fully approved in the case of People ex rel. Case v. Collins (19 Wend., 56). In the case of People v. Halsey (37 N. Y., 344), it was also held to be a matter of but slight importance whom the applicant or relator should be so long as he does not officiously intermeddle in a matter with which he has no concern. The rule, it was said, that a relator in a writ of mandamus must show an individual .interest in the thing asked,, must be taken to apply to cases where an individual interest is alone, involved, and not to cases where the interest is'common to the. whole community. (Id., 348; High on Extraordinary Remedies,, § 431, and cases cited in note.) The rule is different in some of the States, but here it has become fixed and established, allowing every citizen the right to compel public officers, whose duty it has. been made to do so, to execute the laws of the State, enacted for the benefit of the community. And where the government is. solely one of laws, as that of the State most clearly is, the rule is one of a salutary and beneficial character. (People v. Common Council of Buffalo, not yet reported.)

Judgment should, therefore, be ordered in favor of the relator,, directing a writ of peremptory mandamus to be issued requiring, the board of trustees of this village forthwith to assemble and appoint a board of health in the manner in which that has been, provided for by section 1 of chapter 210 of the Laws of 1885. And under the circumstances this direction should be without costs.

Davis, P. J., and Bbady, J., concurred.

Judgment ordered for the relator on the case submitted and mandamus granted, without costs.


author: Davis, P. J.: VaN BRUNT, J.:

text:
    JOHN E. ANDREW, Appellant, v. JACOB H. VANDERBILT and JOHN ENGLIS, Respondents.

      A creditor's action wilt not lie until the legal remedies are exhausted, — when the dissolution of a corporation does not relieve a creditor from, the necessity of recovering a judgment against it.

    This action was brought by the plaintiff in March, 1875, to collect a debt which had been contracted by a New Jersey corporation, out of property alleged to-have been illegally divided among its stockholders, among whom were the-defendants. It appeared that the plaintiff’s cause of action accrued in the latter part of the year 1864, or the early part of 1865, and the corporate existence of the company continued until February 28,1869, when its charter expired by its own limitation.

      Held, that he could not maintain the action for the reason that he had not fully-exhausted his legal remedies against his debtor, the corporation.

      That, as lie was bound to know the tenure by which his debtor held its franchise, he should have recovered a judgment against it before its corporate existence expired.
    That, even after its dissolution, he might, under the provisions of the statute of New Jersey, have brought an action against the directors of the corporation who are by that statute made its trustees, and that as he had failed so to do he could not maintain this action.
    Appeal from a judgment of the Special Term sitting in equity. The plaintiff brought this action in March, 1875, and sought therein to have the defendants adjudged to be liable, as stock-liolders in a foreign corporation, known as the New Jersey Steam Navigation Company, for an indebtedness of that corporation to him, on the ground that the corporation divided all its property and capital among the defendants and other stockholders, closed its operations and went out of existence by the expiration of its charter, leaving the plaintiff’s debt unpaid. The charter ■expired between three and four years after the debt accrued and became due to the plaintiff. No judgment was ever recovered against the company.

      Benedict, Taft c& Benedict, for the appellant.

      Work ds McNamee, for respondent Vanderbilt.

      Charles Tones, for respondent Englis.
   Davis, P. J.:

The ground on which this case was disposed of at the Special Term is that the plaintiff had not exhausted his remedy at law before commencing his suit in equity, and under the established ■authorities of this State could not pursue persons to whom his debtor had transferred its property in fraud of his rights. This ground is disclosed, and its application to the case fully shown, by the opinion of Mr. Justice VaN Bísunt, before whom the issues were tried. We are of opinion that the decision of that court was correct, and we adopt the opinion pronounced by Mr. Justice VaN Brunt as that of this court. The opinion is as follows:

VaN BRUNT, J.:

The only'question which it is necessary to discuss, in the disposition of this case, is whether the plaintiff is in a condition to maintain the present action, being simply a creditor at large. It is not necessary to cite authorities to establish the proposition that. ■ a creditor at large cannot maintain an action in the nature of a' ■creditor’s bill.

It is a well settled rule that in order to reach property which has been fraudulently disposed of by a debtor the creditor must show that he has obtained a judgment, and that he has issued an execution and that the same has been returned unsatisfied, or that an execution is outstanding and the bill filed in aid of such execution. In other words, he must show that he has exhausted his remedy at law, or that there is some obstacle which must be removed by the judgment of a court of equity, in order that he may exhaust such remedy, but in any event he must be an execution creditor. There-is, however, one exception to the rule, and that is, that where by the act and operation of law it has become impossible for the creditor to procure a judgment, and issue an execution and procure the return thereof unsatisfied, such condition precedent is no longer in force as having become impossible.- The inquiry, therefore, which it is necessary to make is, had it become impossible for the plaintiff in this action to have procured a judgment and exhausted his-remedy at law by the issuance of an execution, by act or operation of law %

It appears from the admitted facts in this case that the cause of action accrued probably in the latter part of 1864 and certainly in the early part of the year I860. It further appears that the corporate existence of the New Jersey Steam Navigation Company continued until the 28th of February, 1869, when its charter expired by its own limitation. The excuse which is offered upon the part of the plaintiff, that he did not know of the limitation in the existence of the charter of the company, cannot be considered, because lie was bound to know the tenure by which his debtor held its franchises. (Lowry v. Inman, 46 N. Y., 125.) He had, therefore, a long period of time, with knowledge of the fact that the corporation would expire by the limitations of its charter on a given date, in which to act, but he took no measures whatever to procure a judgment and secure the payment of his debt by proceedings at law, which,, under the decision of Herring v. New York, Lake Erie and Western Railroad Company (63 How. Pr., 504), it was his duty to do. But even after the dissolution of the corporation by its own limitation the plaintiff had the right, under the statutes of this State and New Jersey, to bring an action against the directors of the corporation as trustees thereof. By the first section of the New Jersey statute on dissolution of a corporation, the directors, etc., are made trustees, with full power to settle the affairs, collect the outstanding debts and divide the moneys and properties among the stockholders after paying the debts due and owing by such corporation at the time of its dissolution. By the next section it is provided, that the persons constituted trustees as aforesaid shall have authority to sue, and shall be suable by the same name or in their own names and individual capacities, for the debts due by such corporation at the time of its dissolution and shall be jointly and'severally responsible for such debts to the amount of the moneys and property of such corporation at the time of its dissolution, and which shall come to their hands or possession. Tüe liability of the trustees being thus made similar to that of an executor or administrator of a deceased person, they can be sued as the trustees of the corporation and are personally liable for all such assets as may come into their hands. Therefore the plaintiff in this action could have sued the trustees of the New Jersey Steam Navigation Company as trustees of such corporation and obtained judgment entirely independent of the fact of their having no property of the corporation in their possession, and if they had any such property in their possession he cculd have made such trustees personally liable to the extent of such property.

In the case of a deceased person it has been held that the averment that the deceased was insolvent does not excuse the party seeking to reach property fraudulently assigned from the obtaining of a jndgment and exhausting his remedy at law. So in the case at bar, the plaintiff in this action was bound, notwithstanding the allegation or the claim or the proof that the New Jersey Steam Navigation Company had parted with all its property, to exhaust its remedy at law. He could have sued the directors of the corporation as trustees under the statute, have obtained a judgment, issued an execution against them in their representative capacity, even if .it was not possible for the plaintiff to show that they had any property of the corporation in their possession to the extent of which they would be personally responsible.

It seems to me, therefore, that there was no impediment whatever in the way of the plaintiff in this action obtaining a judgment and exhausting his remedy at law against the property of the corporation, although as a corporation it may have ceased to exist, prior to his resort to the equitable powers of the court to reach property of the corporation fraudulently assigned. As I have said before, I can see no distinction whatever between the rights of the plaintiff, under the circumstances of this case, and those which would have accrued to him had his claim been against a party who had died prior to the running of the statute of limitations. The right to sue the directors, as trustees of the dissolved corporation, by the New Jersey statute is expressly conferred, independent of their joint and several liability, for debts to amounts of money and property of such corporation at the time of its dissolution or which should come to their hands or possession as such trustees. This right is not expressly conferred by the New Tork statute, although perhaps it might be inferred from its language.

In the case of Sturgis v. Vanderbilt (73 N. Y, 391, 392), a similar question was discussed, but it is difficult precisely to say what the decision of the court was upon this point in that case. The principle is recognized that a creditor must have exhausted his remedy at law before seeking by means of a court of equity to recover property fraudulently disposed of. But the application of the principle in that case seems also to have been coupled with certain evidence that at the time of the dissolution of the corporation the directors had sufficient property of the corporation in its possession to have paid the claim of the plaintiff in that action.

It has been assumed in the case at bar that no such ° feature appears by the evidence produced upon the trial of this action, and in that respect the case at bar differs from the case of Sturgis v. Vanderbilt. But the fact that there was no impediment to the procuring of a judgment by the plaintiff upon his alleged claim, and thus exhausting his remedy at law, still remains, and that the dissolution of the corporation by the expiration of its charter formed no greater impediment to the seeking of such relief than the death of a debtor would do in the case of a natural person. Therefore I am of the opinion that before the plaintiff in this action could seek the intervention of a court of equity for the purpose of reaching property wbicb bad been fraudulently disposed of by tbe New Jersey Steam Navigation Company, bis debtor, he was bound to have pursued bis remedies at law to judgment and execution returned unsatisfied, and that this condition precedent not having been complied with, he has failed to make out a cause of action.

The plaintiffs complaint should be dismissed, with costs. The judgment appealed from should therefore be affirmed, with costs.

Bbadv, J., concurred.

Judgment affirmed, with costs.


author: DaNiels, J.: Davis, P. J.:

text:
    THE CORN EXCHANGE BANK (of Chicago), Appellant, v. ALPHONSO W. BLYE, as Receiver, etc., Respondent.

      Requisition in cm action to recover personal property — when it may issue in an " action against the receiver of a national bank — XT. S. Revised Statutes, sec. 5242.
    In this action of replevin, .brought against the receiver of a national bank, to recover bonds and certificates.claimed to belong to the plaintiff, a requisition issued by the plaintiff to the sheriff directing him to take possession thereof was set aside upon the application of the defendant, upon the ground that its issue was prohibited by section 5242 of the United States Revised Statutes:

      Held, that the prohibition contained in that section' against the issue of any ‘ ‘ attachment, injunction or execution ” against such an “ association or its property before final judgment, in any suit, action or proceeding, in any State, county or municipal court,” did not apply to such a requisition as was issued in this case; that it was only intended to prevent interference with the assets- ' ur property owned by the hank itself, and not with such as might legally be ■claimed or proved to be the property of others.
    Appeal from an order setting aside a requisition issued by the plaintiff to the sheriff of Orange county, directing him to take into his possession certain bonds and certificates, claimed by the plaintiff, in an action for the recovery of their possession.

      L. A. Gould, for the appellant.

      Elihu Root, for the respondent.
   DaNiels, J.:

The action was brought against the defendant as receiver of the Middletown National Bank, which had been oi’ganized and existed under tbe act of congress for the incorporation of national bants-The plaintiff claimed to be the owner of the bonds and certificates-in controversy, and the object of the action'was to recover their possession on the strength of that title. The plaintiff’s title to the bonds and certificates was denied by the defendant, and an application' was made in his behalf to set aside the requisition issued to the sheriff - for the taking and delivery of these securities. The application was made under the authority of section 5242 of the United States Revised Statutes, and as the requisition was deemed to be-prohibited by that section, the order from which the appeal has-been taken was entered setting it aside. But this section of the statute, which provides that, “ all transfers of the notes, bonds, bills-of exchange, or other evidences of debt, owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion or other valuable thing for its-use, or for the use of any of its shareholders or creditors, and all payments of money to either, made after the commission of an act. of insolvency, or in contemplation thereof, made with a view to-prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void, and no attachment, injunction or execution shall be-issued against such association or its property before final judgment in any suit, action or proceeding, in any State, county or municipal court,” was not enacted so broadly as to include a requisition or proceeding of this character. Its object was to prevent the assets of an insolvent national bank from being appropriated or interfered with by a creditor of the bank before the recovery of a final judgment in his action, and it has been so construed when it has been brought before the courts for consideration. (Robinson v. Bank of Newberne, 81 N. Y., 385; Raynor v. Pacific Bank, 93 id., 371; Rosenblatt v. Johnston, 104 U. S., 462.)

An action brought to recover the possession of property alleged not to be the property of the bank, and therefore not subjected to the custody or administration of its receiver, is not included within the object or the language of this enactment. What it was designed' to prevent was interference with the assets or property owned by the bank itself, and not those which, might legally be claimed or proven to be the property of others. Its inhibition is that “no-attachment, injunction or execution, shall be issued against such-association or its property before final judgment in any suit, action or proceeding in any State, county or municipal court.” The requisition of the plaintiff was in no sense an attachment, injunction or execution; neither was it issued against the property of the association, but for the recovery of the possession of property claimed to-belong to the plaintiff. This section of the statute has not prohibited a legal contest of this description; neither has it subjected the party asserting a right of this nature, to any legal disability or restriction in the prosecution of the action. And it in no event can have the effect of depriving the receiver of any of the assets or property owned by the bank or secure a preference to any creditor therein. All that can be accomplished by it is to secure the recovery of the possession of the property by the plaintiff, if it shall prove-to be able to support its claim of title made to it. If that cannot be done or title shall be shown to be in the defendant as receiver, then the property will necessarily be returned to him. The litigation must be wholly and exclusively devoted to the investigation of the question of title, and an action for such an investigation has in no manner been affected by this section of the statute, it is outside of the restraints contained in the statute, and has in no way been prohibited. The order from which the appeal has been taken should be reversed, with costs to abide the event, and an order made denying the defendant’s motion.

Beady, J., concurred.

Davis, P. J.:

The defendant, as receiver, took title to all the property of the bank, but he took no title to property in which the bank had none. The bonds in question it is alleged were not the property of the bank. The bank had no right whatever to detain them against the lawful demand'of plaintiff. The receiver could acquire no interest or right in them higher than that of the bank, and the mere fact that the bonds happened to be in the possession of the bank at the time the receiver was appointed could give the latter no greater right or interest than the bank itself had. Any other rule would subject •every special deposit for mere safe keeping of securities wholly belonging to tbe depositor, to the claim of a receiver to keep the same from the true owner until the final settlement of the affairs of the bank; and thus enable him to do great injury and injustice to third persons, who, as often is the case in the country, have placed securities or valuables in the vault of a bank for safe keeping.

I concur that the order be reversed.

Order reversed and motion denied, with ten dollars costs and disbursements to abide event.