author: Barnard, P. J.;

text:
    In the Matter of the Application of WILLIAM E. HAXTON a Creditor of SARAH E. AKIN, Deceased, for Authority to Mortgage, etc., Real Property of said Deceased for Payment of her Debts.

      Sale of real estate of a deceased person to pay his debts — the swrrogate eawnot entertain the proceedings upon the application of a areditor whose claim has been rejected by the executor. ,,
    Appeal from a decree of the surrogate of Dutchess county, directing a sale of the real estate of a decedent to pay his debts.
    The court at General Term said: “On the 5th June, 1882, William E. Haxton presented a claim against Sarah E. Akin’s estate for $1,511.32. The claim was rejected by her executor; it does not appear when, but it must have been almost immediately,, for on the 28th August, 1882, the petitioner presents the petition in this proceeding to sell the real estate of Mrs. Akin to pay the debt. In this petition the rejection of the claim is stated. There is no other claim against the deceased. Under this state of facts the surrogate had no jurisdiction of the subject matter. The Code is not essentially different from the Nevised Statutes in respect to the sale of lands of deceased persons to pay debts. By the Nevised Statutes the surrogate ‘was to ascertain the valid and subsisting debts.’ (2 N. S., 102, esb seq., §§ 13-41.) Under the Code the decree must determine and specify such a valid and subsisting debt. (Code, § 2758.) After the sale other debts may be proven, and the decree is not more than presumptive evidence of the validity of these debts established by it. (Sec. 2788.) Under the Nevised Statutes it was uniformly held that the surrogate had no power to adjudicate upon a claim rejected by the executor or administrator. He must await-. the ascertainment by judgment. (Tucker v. Tucker, 4 Keyes, 136; Riggs v. Gragg, 89 N. Y., 491.) If the claim was ever good it is now barred by the short statute of limitations. (Code, § 1822.) This section is strong proof that no new rule in reference to the powers of surrogates upon the subject of disputed claims was intended by the Code. The section provides that unless £ an action ’ is commenced upon a disputed and rejected claim which is due, in six months after the rejection, the claimant, and all persons claiming under him are forever barred from an action, £ and from every other remedy to enforce the payment thereof.’ When this claim was ascertained by decree it had ceased to be good under this section. An application to sell lands for payment of a debt is not an action within the meaning of this section.” * * *

      A. M. & G. Gojrd, for the executor, appellant.

      Herrick c& Losey and Milton A. Fowler, for the petitioner, respondent.
   Opinion by

Barnard, P. J.;

Dykman and Pratt, JJ.,

concurred.

Decree of surrogate reversed and proceedings remitted to surrogate to dismiss petition.


source: Caselaw Access Project

license: Public Domain

text:
    LEONARD D. TICE, Appellant, v. FRANK DROMGOOLE and ANNA F. DROMGOOLE, Respondents.

      fflndence — a pan'ty cannot impeach his own witness by proving contradictory statements made by him.

    Appeal from a judgment in favor of the defendants, 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.
    . This action was brought for the recovery of damages for a libel, alleged to have been published by defendants concerning the plaintiff. The charge was, in substance, that the plaintiff, who was a coroner of Westchester county, was drunk while holding an inquest on one Banks who had committed suicide.
    The court at General Term said: “ Upon the trial, one George Carpenter was called as a witness for tbe defendants, wbo testified that he considered the plaintiff a sober man during the inquest. Tbe defendant then put to tbe witness tbis question: Did you not tell Albert Sarles that be was drunk there? The question was objected to, admitted, and the plaintiff excepted. Tbe witness said: ‘ I won’t deny but what I might have said in a humorous way that the coroner was drunk.’ Tbe question was an improper one. A party is not permitted to impeach his own witness. He- may show be is mistaken and contradict him as to the particular fact which be testifies to be true. (Thompson v. Blanchard, 4 N. Y., 303; People v. Safford, 5 Denio, 112; Sanchez v. The People, 22 N. Y., 147; Polloeh v. Polloeh, 71 id.-, 138.), The party asserts or admits the credibility of the witness he puts upon the stand.”

      Cooper & Bach, for tbe appellant.

      I. T. Williams, for tbe respondents.
   Opinion by

Barnard, P. J.;

Dteman, J., concurred; Pratt, J.,

not sitting.

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


author: Pratt, J.

text:
    LOUIS C. THIERRY, Appellant, v. GEORGE E. CRAWFORD, Respondent, Impleaded, etc.

      Practice — where a notice of appeal is signed by an attorney, other than the attorney of record, the objection should be raised by a motion to dismiss the appeal — a denial m an answer of “ each and every allegation not hei’einbefore admitted or denied" is bad— Code of CM Procedure, sec. 500.
    Appeal from an order made at a Special Term, denying a motion to strike out portions of tbe defendant’s answer and for judgment thereon.
    Upon the hearing tbe respondent claimed that tbe notice of appeal was irregular and void because signed by an attorney other than the attorney of record in tbe court below.
    Tbe court at General Term said: “ So far as appears from tbe papers submitted no notice of appeal was served by tbe attorney of record for the plaintiff, and no substitution is shown. This was a fatal irregularity if properly taken advantage of; but the appellant was entitled to have a notice of motion served upon him to dismiss the appeal upon that ground, and to have an opportunity to show that prior to the service of the notice of appeal Moore & Moore had been duly substituted as attorneys for the appellant, for the reason that an appeal from the order would not bring up a notice of substitution. Neither does it appear that the notice of appeal was not served in time.
    “We think under the authorities the court erred in not striking out the words in the defendant’s answer, to wit: ‘ He denied each and every allegation not hereinbefore admitted or denied.’ This form of denial is not authorized by section 500 of the Code of Civil Procedure. It is neither a general nor a specific denial and cannot be allowed to stand.” (McMicroe v. Decker, 58 How., 250; Miller v. MeOlosTcey, 1 Civil Pro. R., 253; Leary v. Boggs,. 3 id., 227.)

      Moore c& Moore, for the appellant.

      Oudim, <& Oakley, for the respondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dykman and Pratt, J J.

Order modified by striking out part of answer, and affirmed as to-residue, without costs.


author: Davis, P. J.: Lawrence, J.:

text:
    WRIGHT ROBINS, Appellant, v. JOHN S. McCLURE, in Person and as Executor, etc., or CAROLINE McCLURE, Deceased, Respondent.

      Husband and wife — right of the husband to lapsed legacies gimen by the wild of his wife, of which Tie is tTie executor.

    'The defendant’s wife died in November, 1882, leaving a will upon which letters testamentary were subsequently issued to the defendant. Her heirs-at-law were a sister and nephews and nieces. She devised to her husband the only piece of real estate she owned, and her household furniture and effects, together with one-half of all the remainder of her estate. The other half of the remainder of her estate she gave and bequeathed to her brother Wright Robins and to her sister, to be equally divided between them. The brother Wright Robins, died during the lifetime of the testatrix.

      Held, that his legacy lapsed and that the husband was entitled to receive and hold it, by virtue of his common-law rights, to the exclusion of the next of kin of the testatrix:
    That his right so t© do was not affected by the fact that letters testamentary had been issued to him upon her .will, or that he took certain property under its provisions.

      Pry v. Smith (10 Abb. N C., 224) followed.
    Nor was it affected by the repeal, by chapter 782 of 1867, of section SO of 2 Revised Statutes, 75, which provided that if letters of administration should be granted on the estate of a married woman to any other person than her husband, such administrator should account for and pay over the assets remaining in his hands, after the payment of debts, to such husband or his personal representatives; the effect of the repeal was merely to leave the common law in force.

      Appeal from a judgment, entered upon the trial of this action at a Special Term.

      Edward G. James, for the appellant.

      J. W. Peekett, for the respondent.
   Davis, P. J.:

The learned justice at Special Term before whom this action was tried pronounced an opinion in the correctness of which, after careful examination of the case, we feel bound to concur. The •opinion contains a complete statement of the facts of the case, with an accurate recital of the questions involved, and an elaborate and careful discussion both upon principle and authority of the law controlling the case. Since our examination on this appeal has led us to the same conclusion, we think we can do no better than adopt' the opinion of the Special Term as our own.

Lawrence, J.:

Caroline McClure died in the month of November, 1882, having made her last will and testament, which was thereafter proved in the Surrogate’s Court, of this county, as a will of real and personal estate, and letters testamentary thereon were issued by the surrogate to John McClure, her husband, one of the executors named in said will, who duly qualified and entered upon his duties as such executor. The testatrix left no descendant or ancestor surviving her. She left but one piece of real estate, being the house known as number 360 "West Thirty-third street, in this city, which she devised to her husband. By her will the testatrix gave to her husband all the household furniture and effects contained in said house, and also devised and bequeathed to him the one-half part of all the remainder of her estate both real and personal, absolutely.

The controversy involved in this suit arises under the fifth clause •of the will of said Caroline McClure, which is as follows:

“ I give and bequeath the remainder of my estate, both real and personal, to my brother, Wright Robins, and to my sister, Mrs. "Elizabeth Carter, to be equally divided between them, to have and to hold unto them, their heirs and assigns forever.”

Elizabeth Carter survived her sister, but the brother, Wright Robins, named in said will, died before her. The plaintiff in this action is a nephew of the testatrix. She also left certain nephews and one grand niece, the lieirs-at-law of her five deceased brothers,, Isaac Robins, Amos Robins, Nathan Robins, Wright Robins and George W. Robins. It is alleged in the complaint that John S. McClure, the husband of the-said testatrix, has taken possession of . all the estate of said testatrix, both real and personal, and claims to hold the same in his own right, adversely to the said heirs-at-law and next of kin, not only those parts of said estate which are devised and bequeathed to him by said will, but also all that portion of the remainder of said estate which was devised and bequeathed by said will to Wright Robins, the deceased brother of said testatrix.

The plaintiff claims that by reason of the death of said Wright Robins, in the lifetime of said testatrix, the provisions made in said will in his favor lapsed, and that upon the death of said testatrix her heirs-at-law became and are seized of the real estate devised to sáid Wright Robins as tenants in common in fee simple, and that her next of kin, to wit, the parties hereinbefore mentioned, became and are entitled to the personal estate bequeathed to said Wright Robins, and are entitled to a distribution of the same among them, under the statute of distributions, and that the defendant holds tbe same in trust for them as such executor as aforesaid.

It also alleged that the plaintiff brings this action not only in his own behalf, but for the benefit of all such heirs-at-law and next of kin who may come in and contribute to the expenses thereof.

The defendant in his answer admits that he has taken possession of all the estate of said testatrix, both real and personal, but denies that he claims to hold the same in his own right, and denies that lie holds adversely to the said heirs-at-law and next of kin, not oñly those parts of said estate which are devised and bequeathed to him by said will, but also of that portion of the remainder of said estate which was devised and bequeathed to Wright Robins, the deceased brother of said testatrix, but alleges that he holds said estate as executor under said will to carry into effect the provisions of said will, and as legatee and heir-at-law of his wife, the said testatrix.

He also alleges that under the provisions of the will he is the owner absolutely in fee simple of the house and lot No. 360 West Thirty-third street, in the city of New York, and that as the testatrix left no descendants the portion or share devised to the said Wright Robins, deceased, belongs absolutely to, and is the property of, this defendant as the husband of said testatrix.

On the trial it appeared that the provision of the will devising the dwelling-house was interlined before its execution at the request and by the direction of the testatrix; and as that was the only real estate belonging to the testatrix no question arises as to the said real estate.

The plaintiff contends that the portion of the estate of Caroline McClure which was bequeathed to Wright Robins having lapsed, the husband cannot avail himself of the provisions of the will, which are in his favor, and yet claim to be entitled as the husband to that portion of the estate which would have gone to Wright Robins in case he had survived his sister, and that therefore her heirs-at-law or next of kin are entitled to the same.

It was held by the Court of Appeals, in the case of Barnes v. Underwood (47 N. Y., 351), that the common-law right of a husband to administration, and through administration to acquire title to the personal property of his deceased wife not reduced to possession during coverture, subject only to the payment of her debts, was preserved by the Revised Statutes, and has not been affected by the statutes of 1848 and 1849 in relation to married women. That those statutes give the wife control of her separate estate, with power of testamentary disposition during her life, but that if she dies intestate the rights of her husband as her successor are not affected, and that he is not prevented from the administration and consequent enjoyment of the property. It was also held that the amendment to the seventy-ninth section of the statute of distributions, in 1867, did not affect the right of the husband to administration and enjoyment of the deceased wife’s personal estate, except in the case therein specified, to wit, of her dying leaving descendants.

In this case the wife, as we have seen, left no descendants. The parties claimed to be her heirs-at-law and next of kin, being her sister Elizabeth Carter named in said will, and the descendants of her deceased brothers.

The precise question presented in this case did not arise in the case of Barnes v. Underwood, because there the wife died intestate and her husband was appointed as her administrator, but the reasoning of the court in that case goes far to sustain the position taken by the defendant in this case. But in Fry v. Smith (10 Abb. N. C., 224) Mr. Justice Van Vorst had under consideration a case which was exactly similar to the ease at bar. In that case Mrs. Godon, after making some inconsiderable bequests by her will, directed that “ all the remainder of my estate, real and personal, I give, devise and bequeath to my husband Sylvanus 'William Godon, and at his death to go to my son Frederick William Godon, and to his natural heirs.” She died possessed of personal property, and before her death her son Frederick William died without issue and unmarried. The testatrix left her surviving her husband and no issue, and the learned justice held that the common-law right of the husband to take the entire personal estate of the wife dying intestate and without descendants extended to the partial intestacy created by the lapse of the legacy to the son, although the husband had taken letters testamentary under the will, but had never taken rut letters of administration upon the wife’s estate. I cannot add anything to the elaborate opinion of the learned justice, and concurring, as I do, in the views which he therein expressed, I shall hold that the husband in this case is entitled to that portion of his wife’s estate bequeathed by her will to her brother Wright Robins, such bequest having lapsed by his death, before the death of the testatrix. On the argument the learned counsel for the plaintiff referred me to the case of Kearney v. Missionary Society of St. Paul the Apostle (reported in 10 Abb. N. C., 274), which was also decided by Mr. Justice Van Vorst, and claimed that the decision in the latter case was antagonistic to the decision in Fry v. Smith.

The learned justice refers to that case, in his opinion in the case of Fry v. Smith, and states as follows: “ That case differs essentially from the present one in its facts. I do not think that it upholds the plaintiff’s propositions; but if it announces doctrines in opposition to the conclusions reached in this case, to that extent it cannot be followed.”

This is a clear indication that the learned justice did not consider the case of Kearney v. Missionary Society as conflicting with his decision in the case of Fry v. Smith. In this view I also concur, but if there were any doubt upon this point, deeming as I do that the decision in Fry v. Smith is a correct exposition of the law upon this subject, I should feel bound to follow the latter case.

For these reasons I am of the opinion that the defendant is entitled to a judgment declaring that the title and ownership of the property bequeathed to Wright Robins, deceased, by the will of Caroline McClure, belongs to the defendant as the husband of said testatrix, that the house and lot No. 360 West Thirty-third street, belongs absolutely in fee simple to the defendant, and that after paying the other legacies named in the will, all the rest, residue and remainder of the testatrix’s estate, belongs to the defendant.”

To this opinion we add only a few suggestions. The testatrix, in respect to the lapsed legacy, died intestate. It appears that she devised all her real estate to her husband. so that her residuary estate, of which the lapsed legacy was part, was wholly personal property; and being, by the lapsing of the legacy by reason of the death of Wright Robins the legatee prior to the death of the testatrix, wholly undisposed of by the will, it passed as in a ease of entire intestacy. (Gill v. Brouwer, 37 N. Y., 549; Lefevre v. Lefevre, 59 id., 434; Kerr v. Dougherty, 79 id., 327.)

The acts of 1848 and 1849 familiarly known as the Married Women’s Acts have not changed the common law in respect to the title of a husband to the personal property and choses in action of the wife who dies without making any disposition thereof by gift or bequest, and without leaving either ancestor or descendant. He is entitled, in such a case, to reduce the same to possession after her demise as well by virtue of his marital rights as by right of administration in cases of intestacy. (Ransom v. Nichols, 22 N. Y., 110; Ryder v. Hulse, 24 id., 372; Barnes v. Underwood, 47 id., 351; Gilman v. McArdle, 12 Abb. N. C., 414.)

It is not, therefore, necessary that there shall he actual administration to consummate title in the surviving husband; though where such administration exists he may establish his title by virtue of his administrative rights. (Barnes v. Underwood, 47 N. Y., 351.)

A very able and ingenious argument is made by the learned counsel for the appellant, seeking to establish that this case being one of testacy, in which the property of the testatrix including that embraced in the lapsed legacy, came into the hands of the defendant as the executor of the will of his deceased wife, there could be acquired by him no right therein as the administrator of his deceased wife; and therefore he has taken the property as trustee for her next of kin who are entitled to receive it under our statute of distributions. This argument necessarily ignores the common law marital rights of the husband, formerly declared by statute. (2 B. S., 75, § 30.) The statute was repealed by chapter 782 of the Laws of 1867. The effect of that repeal was merely to leave the common law in froprie vigore, except so far as it might be affected by other statutes. Our attention is not called to any other statute affecting the question, and we think it does not follow of necessity that the repeal of the statute last above referred to, operates to deprive a surviving husband of all ownership or right in his deceased wife’s personal property in all cases where he cannot take out letters of administration. The question is an interesting one and not wholly free from doubt, and though we think it our duty to affirm the judgment under all the circumstances, it should be without costs.

Brady and’Daniels, JJ., concurred.

Judgment affirmed, without costs.


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

text:
    In the Matter of the Application of PETER JACOBS for Writs of Habeas Corpus and Certiorari, etc.

      Constitutional protection of property — a man’s right to labor is prop&rty — right of the legislature to restrain it by police regulations — the court may examine the act to see if it is in fact, as well as in name, a police regulation.

    The term property, as used in the section of the Constitution providing that no person shall be deprived of life, liberty or property without due process of law, includes the right of a person to work and to employ his labor to his own best interests and advantage.
    The legislature cannot, by any arbitrary enactment, deprive a laborer in any lawful avocation of his right to work, and enjoy the fruits of his work in his own residence and in his own way, except for the purposes of police or health regulations.
    An act so depriving a person of the right to his own labor cannot be sustained by simply inserting therein a declaration that it was passed as a police regulation and to preserve the public health or safety. It must in fact be such a regulation and have been passed for that purpose and not for some other and different purpose.
    Chapter 272 of 1884 — prohibiting in cities having over 500,000 inhabitants the manufacturing of cigars or preparation of tobacco in any form on any floor, or in any part of any floor, in any tenement house as therein defined, if such floor, or any part of such floor, is by any person occupied as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein— was not passed to improve the public health or regulate the use of tenement houses as stated in its title, but to suppress and restrain the manufacture and preparation of tobacco in the cases covered by the act, for the purpose of preventing successful competition injurious to other modes of manufacturing the same article, and the said act is for that reason unconstitutional and void.
    Appeal from an order made at a Special Term, dismissing writs of habeas corpus and certiorcvri and remanding the appellant to custody.

      Wm. M. Evarts, A. J. JDittenhoeffer and Morris 8. Wise, for the relator appellant.

      Peter B. Olney and John Vmcent, for the respondent.
   Davis, P. J.:

Prior to the 12th day of May, 1884, Peter Jacobs, the appellant in this - case who is by occupation a. manufacturer of cigars canned on that business on the first floor of a tenement house in the city of New York in which he resided, and with his family occupied the whole of that floor comprising seven rooms, in one of which he manufactured his cigars. His business was a lawful one; but on the 12th of May, 1884, the legislature passed an act making the manufacturing of cigars, etc., when carried on in such tenement houses as that occupied and used by the appellant, a criminal offense punishable by fine or imprisonment, or both. The tenement house in which Jacobs manufactured his cigars was clearly within the description of the act; and the manufacture being continued by him after the twelfth of May, in the same manner as before, he was on the fourteenth of that month arrested on due complaint and warrant, and after examination committed, in default of bail, by a police magistrate of the city. He sued out a writ of habeas corpus and of certiorari, on the return to which after due hearing the Special Term of this court dismissed the writs and remanded the appellant. This appeal is taken from the order of the Special Term.

The question presented at Special Term and on this appeal relates solely to the constitutionality of the act under which the appellant was arrested. . (Chap. 272, p. 335, Laws of 1884.) The act is as follows:

An Act to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases, passed May 12th, 1884.

The People of idle State of New Yorlc, represented in Senate and Assembly, do enact as follows:

Section 1. The manufacture of cigars or preparation of tobacco in amy form on any floor, or in any part of any floor, in any tenement house is hereby prohibited, if such floor, or any part of such floor, is by any person occupied as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein.

§ 2. Any house, building, or portion thereof occupied as the home or residence of more than three families, living independently of one another, and doing their cooking upon the premises, is a tenement house within the meaning of this act.

§ 3. The first floor of said tenement house on which there is a store for the sale of cigars and tobacco shall be exempt from the prohibition provided in section one of this act.

§ 4. It shall be the duty of every sanitary inspector of any city to which this act is applicable to report any violation of this act coming to' his knowledge forthwith to a police magistrate, and to procure the punishment of the person or persons having committed such violation ; but this provision shall not be construed to preclude any other citizen from performing the duty herein assigned to said sanitary inspector.

§ 5. Every person who shall be found guilty of a violation of this act, or of having caused another to commit such violation, shall be deemed guilty of a misdemeanor, and shall be punished for every offense by a fine of not less than ten and not more than one hundred dollars, or by imprisonment for hot less than ten days and not more than six months, or both such fine and imprisonment.

§ 6. This act shall apply only to cities having over five hundred-thousand inhabitants.

§ 7. All acts or parts of acts inconsistent with this act, are hereby repealed.

§ 8. This act shall take elfeet immediately.

This act, it will be observed, is a local one, having no general operation throughout the State. It is in force by its terms, only in cities “ having over five hundred thousand inhabitants; ” and as the courts can, take judicial notice of the population of cities, it must be held to be applicable only to the cities of New York and Brooklyn.

Its title although it does not declare this fact, is probably definite enough to save it from the condemnation which the Court of Appeals imposed on the similar act of 1883. (Chap. 93, Laws of 1883 ; In the Matter of Paul, 94 N. Y., 497.) By its second section the act declares the kind of “ tenement house ” to which alone it is applicable, to wit, “any house, building or portion thereof occupied as the home or residence of more than three families, living independently of one another, and doing their cooking upon the premises.” In such a tenement house the act prohibits the manufacture of cigars or preparation of tobacco in any form, not generally, but on any floor or in any part of any floor if such floor or any part of such floor is by any person occupied as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein; and to this the third section adds the exception that if on the first floor of such tenement house there is a store for the sale of cigars and tobacco, that floor shall be exempt from the operation of the act.

It seems entirely clear that this act, if valid, operates to deprive the owner or occupant of any floor in such a tenement house as it describes, with the exception mentioned, of the right to carry on his lawful occupation by which he supports himself and family, in any part of his own residence. That right is in a general sense his-own absolute property, and he is protected in its enjoyment by the Constitution of the State. “ The property ” says Smith in his "Wealth of Nations, “which every man has in his own labor as it is-the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder him from employing the strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment against the just liberty both of the workman and those who might be disposed to employ him. As it hinders the one from working a't what he thinks proper, so it hinders the other from employing whom they think proper.”

In Bertholf v. O'Reilly (74 N. Y., 515) it was said: “ The right to life includes the right of the individual to his body in its completeness and without dismemberment; the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire, possess and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.”

In Live Stock, etc., Association v. The Crescent City, etc., Company (1 Abb. [U. S.], 398) it is said: “ It is one of ,the privileges of every American citizen to adopt and follow such lawful industrial pursuit — not injurious to the community— as he may see fit without unreasonable regulation or molestation. * * * There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more than the sacred right of labor.”

In the celebrated Slaughter House case (16 Wall., 116, 122), Bead* let, J., in his dissenting opinion, says: “ This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect; and a calling when chosen is a man’s property and right. Liberty and property are not protected where these rights are’ arbitrarily assailed. * * * In my view a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty, as well as property without due process of law. Their right of choice is their liberty; their occupation is their property.”

A French edict declares that God in giving to man wants and desires rendering labor necessary to their satisfaction, conferred the right to labor on all men, and this property is the first, most sacred and impi’escriptable of all. (Edict of Louis XVI, 1776.)

And Chancellor Kent (2 Kent’s Comm., 1) defines the absolute rights of individuals as the right of personal security, the right of personal liberty and the right to acquire and enjoy property. These rights,” he says, “have been justly considered and frequently declared by the people of this country to be natural, inherent and inalienable.” "Without citing further authorities, it may be stated as a legal and political axiom that since the great laboring masses of our country have little or no property but their labor, and the free right to employ it to their own best interests and advantage, it must be considered that the constitutional inhibition against all invasions of property without due process of law, was as fully intended to embrace and protect that property as any of the accumulations it may have gained. It is not constitutionally competent, therefore, for the legislature to deprive, by any arbitrary enactment, a laborer, in any lawful avocation, of his right to work and enjoy the fruits of his work in his own residence and in his own way, except for the purposes of police or health regulations as hereinafter considered. It is equally true also that when an artisan or laborer has rented a tenement for the residence of his family, with the right to carry on his trade or occupation therein, he has thereby acquired certain rights of property in the use and enjoyment of his tenement of which he cannot be deprived without due process of law. An arbitrary law for the mere purposes of such deprivation is absolutely dead at its birth by force of the Constitution of the State.

These general principles are hardly disputed on the part of the respondents; but it is insisted quite correctly that they are subject to an exception or limitation which permits the enactment of laws which may regulate or limit or restrain the enjoyment and use of such absolute rights and property, by police regulations to preserve the public peace, safety or health, and that the legislature is the sole judge of what laws are necessary or requisite to those ends.

Without pointing out what exceptions, conditions and refinements are applicable to these propositions it is enough to say, in the words of the respondent’s counsel, that “ it is the undoubted province of the courts to decide whether or not any particular Act was or was not upon its face passed by the legislature in the exercise of its police power and as a health regulation.” ■

In this case the appellant, while in the exercise of a perfectly .lawful right to use and enjoy the property of his own labor, by conducting a manufacture in the line of his avocation quietly and peaceably in his “ own hired house,” suddenly finds his business declared a crime and himself absolutely prohibited from carrying it on in his own house under severe criminal penalties by an Act of the legislature which takes effect immediately, and he presently is arrested and held in custody for using his accustomed mode of earning the bread of himself and family. When he impugns the Act under which this is done he has a right to demand that' the courts shall inquire whether the Act is a valid exercise of the power to enact police regulations to preserve public health or safety. And this means more than that the Act professes to be of that kind. It means that it must, be so in reality and not something else in the guise of such a purpose.

A careful study of the Act has satisfied us that its aim was not “to improve the public health by prohibiting the manufacture of cigai’S and preparation of tobacco in any form in tenement houses in certain cases, and regulating the use of tenement houses in certain cases ” as declared in the title, but to suppress and restrain such manufacture in the cases covered' by the Act for the purpose of preventing successful competition injurious to other modes of manufacturing the same articles. We think we find abundant evidence of this object on the face of the Act: First. It selects for its field of operation, from the general and numerous tenement houses of the city a limited class, to wit, such as are “occupied'as the home or residence of more than three families living independently of one another and doing their coohing vpon the premises.” The result of this selection is that all tenement houses having more than three, or more than twenty families, living in common but not doing their cooking on the premises, are not within the act. Certainly if health were the object, all such tenements would be embraced for they are especially within the professed mischief. It is the thronged and overcrowded tenements which swarm from cellar to attic with tenants who live not independently but in promiscuous dependence without cooking in their tenements, but from hand to mouth in the streets and grog shops, or as beggars at houses for food, whose health most needs the protection of police regulations; but they are not included within the Act. Again, by the third section the first floor of the designated tenement is exempt from tbe operation of tbe law if, in addition to tbe manufacture, there be a store for selling cigars and tobacco on that floor. That fact, if health were the object, should be a reason for more stringent restriction instead of exception, because it would cause that floor to be tile resort of more persons whose health might be exposed; but one nuisance to health is, in the theory of the act, cured by another. It is of no consequence that on the same floor there may be a half dozen families each carrying on the manufacture of cigars or tobacco in their living rooms, where they eat, sleep and cook. They are not subject to the law, while the head of a family on the rifext or any other floor of the same tenement is a criminal for carrying on his occupation of manufacturing cigars in any room of such floor. Surely this sort of discrimination must be based upon some other idea than the health of tenants, or of the public. It is too vicious to be just or lawful. But in the prohibited tenement, the manufacture is made criminal only “ on any floor or part of any floor occupied by any person as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein.” This section has no regard to the size of the floor. There may be ten or twenty rooms (and in some of the tenement houses there are numerous rooms on each floor), isolated so as to have no communication with .each other, yet the bare fact that some person eats or sleeps or lives in one of the most distant rooms of the floor, without communication or connection with that used for the business, makes it a crime to manufacture cigars in any other room on that floor. Again, under this Act every one of the seven rooms occupied by the appellant and his family may be used for the purpose of manufacturing cigars and tobacco by himself or 'other tenants occupying the several floors above for the purpose of living, sleeping, cooking and doing household work, and the case will not be within the statute. If the aim be to protect health, why is not such a case brought within the prohibition.

But it may be argued that the intention was to make the manufacture criminal only because of danger to the health of persons who live or sleep or cook or do some sort of household work, on the same floor. Why, then, it may be repeated is the 'exception made which allows the health of such persons to be exposed if only there be the addition on the same floor of a store to sell cigars and tobacco ? Health is absolutely lost sight of in such a case and no sensible reason can be perceived for such an exception unless, indeed, some-promoter of the law happened to be in that condition as a maker and vender, and needed the exception to protect him.

But, again, if the health of occupants of the same floor were alone in view, why is the act applied only to tenements occupied as the home or residence of more than three families'. If the occupants are limited to three families or less, any or every one of them may make cigars or manufacture tobacco in any or every room on his floor and the act does not condemn it. It is not easy to see if the object be to protect the health of persons living on the floor of the manufacture, why such health does not require as much protection in the case of three tenants in the same building as of four.

Under the Act, if there be but three'families “ living independent of one another and doing their cooking on the premises,” either may manufacture cigars or tobacco on a floor and in the living rooms of any number of people without limit; but if there be four families in the tenement, no one can manufacture cigars on any floor which is by any one person occupied for doing an'y household work whatever.

It is impossible, we think, to hold that this Act is a police enactment to preserve public health, because it clearly fails to accomplish that purpose to any reasonable extent. It does, on the contrary, quite another thing. It strikes with unjust and cruel severity a class of humble manufacturers, too poor to live elsewhere than in crowded tenement houses, unable to have a store on their premises, or to rent a shop outside of their residences in which to -do their work, but constrained by the necessities of their families or themselves to use a part of their rooms to carry on their daily occupation. They are singled out with keen discrimination and their industry is made a crime, unless they submit to abandon it or find employment outside of their homes. If the Act were general and aimed at all tenement houses, and prohibited for sanitary reasons the manufacture of cigars and tobacco in all such buildings, or if it prohibited such manufacture in the living rooms of all tenants, another case would be presented. But in the form in which it comes before us it is so unjust in its inequality, so harsh and oppressive upon the labor of poverty, so keenly discriminative in favor of the stronger classes engaged in the same occupation, that it certainly ought not to have been enacted; but, being enacted, ought to be held invalid because it deprives the appellant of his right and liberty to use his occupation in his own house for the support of himself and family, and tabes away the value of his labor, which is his property protected by the Constitution equally as though it were in lands or money, without due process of law.

~We are, therefore, of opinion that the Act in question should be adjudged to be unconstitutional, and that the order of the court below should be reversed and an order entered discharging the appellant from imprisonment.

Brady, J., concurred.

Daniels, J.:

I agree entirely in the views expressed in this opinion and add as-a further reason supporting the conclusion that the Act was not in fact intended for the promotion of the public health, the omission to include tenement-houses in the other cities of the State within its prohibitions. If it was necessary for New York and Brooklyn, it was for the other cities. For tobacco is prepared and cigars made in tenement-houses and residences in most or all of such cities. But they have not been included and their exclusion is strong evidence that other reasons than the protection of health induced the passage of the Act. If it were necessary for one'city it was for ail. But by its enactment, what is a perfectly lawful occupation in all other cities is made a criminal offense under precisely similar circumstances in New York and Brooklyn. It deprived persons from there doing what it left them at full liberty to do elsewhere. The discrimination was conspicuously unjust and not warranted by the fundamental law of the State.

Brady, J., concurred.

Order reversed and order entered discharging the appellant from imprisonment.


author: Davis, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD DICKEL v. L. J. N. STARKS and Others, Commissioners composing the Board of Docks of the Department of Docks of the City of New York, Respondents.

      Removal of a “regular-clerR’ in New York— Sec. 48 of chap. 410 of 1882 — requisites of the ahcvrge assigned — what opportunity for explanation must he afforded.

    The Board of Commissioners of the Department of Docks served upon a regular clerk of the department a copy of a resolution adopted by them, which stated that the board deemed “ him incompetent for the proper and creditable performance of the duties assigned to and required of him;” and notified him to appear before the board at a specified time and place and “ show causb and make such explanation as he may desire as to why he should not be removed ” - from his position as clerk.

      Held,, that the notice did not assign any “ cause ” which would justify the removal of the relatorAmder the provisions of section 48 of chapter 410 of 1882.
    That the statute contemplated that the cause assigned should be some dereliction or general neglect of duty, or incapacity to perform duties, or some delinquency affecting his general character and his fitness for office; that it should be personal to himself and imply an unfitness for the place.
    That even if the cause assigned in this case were treated as a, general charge of incompetency, it was insufficient as it was not accompanied with any specification or suggestion as to the nature of the incompetency, or whether it was of a mental, physical or moral nature.
    While the clerk was on his way to appear at the time and place named in the notice he was suddenly and violently attacked by an illness which required a painful surgical operation, occupying a period of two hours, and so prostrated him that it would have endangered his life to appear before the board. When so attacked he wrote a letter to the board informing it of his illness and inability to attend. The board met and, after receiving this letter, upon the non-appearance of the clerk, passed a resolution removing him.from his office.

      Held, that the board did not allow him “an opportunity for explanation” within the meaning of the act.
    That even if the board had jurisdiction to act, and if its action was not wholly void, yet that this court had power, if it saw that the clerk had been deprived of some right which the statute intended he should enjoy, to correct the error and reverse the proceedings.
    Certiorari to review the action of the respondents in removing the relator from his office.

      Richard J. Morrison, for the relator.

      D. J. Deem, for the respondents.
   Davis, P. J. :

Tlie relator -was a “ regular clerk ” iu tlie department of docks. Section 48, chapter 410 of the Laws of 1882, enacts that “ no regular clerk * * * shall be removed (from his office) until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation.”

The affidavit of the relator in this case, on which the writ was granted, and tlie return thereto show in substance that the relator had been a clerk in the department of docks for six years, and for his services had been advanced to the position from which he was removed and his salary had been increased by the commissioners ; that he had been requested by the commissioners to resign his position and notified that unless he resigned he would be removed ; that the relator refused to resign, and on the 29th of December, 1883, the board of commissioners, at a meeting of the board, passed the following resolution :

,£> Resolved, That notice be and is hereby given in compliance with the provisions of section 48 of chapter 410 of the Laws of 1882, to Edward Dickel that the board deem him incompetent for the proper and creditable performance of the duties assigned to and required of him; and that said Edward Dickel be and he hereby is notified to appear before this board at its office on Monday, the twenty-first instant, at one o’clock p. m., to show cause and make such explanation as he may desire as to why he should not be removed from said position of clerk in this department.”

A copy of this resolution was served on the relator on the 29th -day of December, 1883. On the thirtieth day of December the relator, not appearing at the time specified in the resolution, was, by another resolution of the board, removed from his office, the cause of his removal being stated as in the former resolution.

It appears by the affidavit of the relator that he intended to appear at the time named in the notice, and was on his way so to appear, when he was suddenly and violently attacked by an illness which prevented his attendance, and so prostrated him as to require a painful surgical operation, occupying the period of two hours, which was performed by two well known and skillful surgeons, who also make affidavit of the fact and that the condition of the relator was such at the time that to attend the board would have endangered his life. It also appears by his affidavit that when so attacked with that illness on finding himself unable to attend the board he immediately wrote and sent a letter to the board stating the facts of his illness, etc., which letter was received by the board and was in their hands before the action taken by the board for his removal, and he prayed that the same be made a part of the return to the writ. , None of these facts are denied by the respondents and the letter is not returned, nor is its possession denied.

Upon these facts two questions arise: First. Whether the board of commissioners gave notice to the relator in substantial .conformity to the act of the cause of the proposed removaland, second. Whether the board in substantial compliance with the statute “ allowed an opportunity of making an explanation.” People ex rel. Munday v. The Fire Commissioners (72 N. Y., 445), is a leading case bearing upon these questions. The Court of Appeals in that case laid down several propositions which have since been substantially adhered to by that court. It was held that “ the removal must be for cause, and the process for removal is prescribed by statute and must be pursued. The party against whom jhe proceeding is taken must be informed of the cause of the proposed removal “ and be allowed an opportunity of explanation.” This necessarily implies that the cause is to be some dereliction or general neglect of duty or incapacity to perform duties or some delinquency affecting his general character and his fitness for office. The cause assigned should be personal to himself and implying an unfitness for the place; and such cause being assigned, if unexplained, the removal may be made.”

In the ease at bar the cause assigned was, in the language of the resolution, that this board deem him incompetent for the proper and creditable performance of the duties assigned to and required of him,” and the relator was notified not to make explanation of the cause assigned “ but to make such .explanation as he may desire as to why he should not be removed.” Strictly speaking the cause assigned is a mere arbitrary conclusion of the board, and the relator is allowed to explain why the board should not execute its arbitrary conclusion. It does not put the relator on trial or explanation of any offense or dereliction of duty of his own. It asks him to show the board why he should not be removed because the board have adjudged liim to be incompetent. This was requiring him to perform an extremely difficult task and one which he would not be able easily to perform. But assuming that the charge is to be treated as a general one of “incompeteney,” with no specification or' suggestion of what the alleged incompeteney consisted in, whether mental, physical or moral, whether shown by neglect of duty, or incapacity to perform it, or in any sort of dereliction in act, word or conduct, how can it properly be said to be a charge which within the letter or spirit of the statute the relator can be asked to explain.

Tflnu arraigned before the board and told “you are charged with meóme"coney, what explanation have you to offer 1” is the relator in such a case in the position the statute contemplates, to wit, informed of a charge which lie may perhaps explain ? Must bo not necessarily answer by interrogatory 3 In what respect am I incompetent 3 Y/Iiorein have I failed 3 "When, how or where have I been delinquent ? Is my incompeteney physical, mental or moral 3 Is it from age, infirmity or ignorance 3 Certainly some such questions must be asked and answered before the accused can be “ allowed an opportunity for explanation ” within the meaning of the statute, otherwise the purpose of the statute may be defeated by a mere farce.

Surely it could not have been intended that the board may say to a clerk “ we are about to remove you for incompeteney, explain,” for the only reply could be, I am not incompetent,” wliicb is no “explanation.” Undoubtedly the charge may, in all cases, be incompeteney,” if accompanied by some statement showing in what respect it is claimed to exist; and that certainly can always be stated when the charge itself is not a mere pretext for an, undeserved removal. The best of clerks may become incompetent, with or without his fault, and such incompeteney may be sufficient ground for removal in order to protect the public interests; but he is entitled to have the kind and nature of his incompeteney stated and to have, upon such statement, an opportunity for explanation. In our judgment in no other way can the beneficial object of the statute be fairly obtained. None of the cases, as we understand them, are in conflict witb these views, and we tbink, therefore, that the relator was improperly removed because the proceedings of the board were not taken in conformity to the statute.

As to the second question, the allowing of “ an opportunity of making an explanation” is as essential under the statute as that the officer shall be “ informed ” of the cause of the proposed removal. “He must be informed, etc.,” and then he must be-“allowed an opportunity of making an explanation.” To refuse such an opportunity is fatal to an order of removal. Of course it is sufficient to accompany the information of the cause of the proposed removal with a notice of time and place of hearing, and in default of any appearance the board may doubtless proceed to remove for sufficiently specified causes. .But when the party appears the board must then allow him opportunity for explanation. To refuse it would be fatal to their further proceedings. It is the duty of this court, in all such cases, to see to it that the remedy of 'the statute is properly administered. And where the circumstances of the case show that a party has been unjustly deprived of the opportunity of explaining the court should not uphold a removal. In such a case it cannot truly be said that the party has been allowed an opportunity of making an explanation.

In the present-case it is clearly shown that the relator while on the way to his office, with intention to appear at the time and place designated to make such explanation, was so suddenly and violently attacked as to require the immediate attention of two skillful surgeons and the performance by them of a painful operation occupying two hours of time, and rendering him wholly incapable of appearing before the board. It is said that this was his misfortune. So indeed it Was, and if nothing more appeared the action of the board could not perhaps be disturbed on this ground; but it appears without dispute that he immediately wrote a letter to the board stating the facts of his sickness and condition, which was delivered to them before their meeting, and informed them of his inability to be present. If the board had made inquiry as to the truth of the contents of the letter, -the facts before us show' that they would have found them to be true. They chose to make no inquiry but proceeded to remove the relator. Upon these facts it seems manifest to us that the board acted without “ allowing an opportunity oj making explanation,” within the true intent and meaning of the statute. These proceedings were harsh and unjustifiable and operated to deprive the relator of a right which the law secured to him. It is not necessary to hold that their action was void, or that they lost jurisdiction to act. It is enough, we think, to see that their proceeding, even if strictly legal, did under the circumstances operate to deprive the relator of some right which the statute intended he should enjoy. We may in such a case correct the error resulting from a wrongful deprivation of a statutory right; and on this ground also we think the relator is entitled to a reversal of the proceedings.

The order of removal should be reversed, with costs.

Beady and Daniels, JJ., concurred.

Order reversed, with costs.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES R. JESSUP v. JOHN KELLY, ALLEN CAMPBELL and DANIEL LORD, Commissioners, etc.

      Assessments for local improvements in New York city — -review of them by the commissioners appointed under chapter 550 of 1880 — discretionary power of the commissioners — when it is not reviewable by the General Term.

    The relator applied to the eommissio:qers, appointed under chapter 550 of 1880 for the purpose of reviewing certain assessments for local improvements, to have an assessment for the laying of a sewer reduced by striking therefrom an item for damages to gas mains. The total amount allowed for damages to gas mains was $4,834 and the total amount of the assessment was $125,086.19. The assessment was confirmed in January, 1873. The commissioners, while holding that the item of damages to gas mains was improperly included in the assessment, refused to strike out the proportion charged against the petitioner’s property upon the ground that no “substantial injustice” had been caused thereby.
    Upon the hearing of a certiora/ri to review the action of the commissioners:

      Held, that the intent of the act was to leave the question whether substantial injustice had or had not been done in a given case to the commissioners, as one of fact to be finally determined by them, and that the exercise of this power by them would not be reviewed by the courts unless clear excess of jurisdiction or gross-abuse and injustice were shown.
    That the commissioners had the Tight to apply the maxim de minimis non ewrat lex to cases where a court of law could not.
    That their action in his case should be affirmed.-

      Writ of oertiobabi to review a decision of the respondents as commissioners, appointed in and by chapter 550 of the Laws of 1880, denying an application of the relator for a modification or reduction of an assessment imposed upon petitioner’s lands for .laying a “ sewer in Third avenue, between Ninety-third and One Hundred and Seventh street,” which assessment was confirmed January 3,1873.
    The petitioner claimed that tiie assessment was excessive and unjust, in that it included an item for the allowance of damages to gas mains .$4,334.
    The cost of the work was for the sewer proper'...... $103,437 69
    Paving over sewer.............................. 5,630 50
    Expenses surveyor’s fees............... $7,638 00
    Expenses inspector’s fees .............. 4,048 00
    Expenses damages to gas mains......... 4,334 00
    - 16,018 00
    $125,086 19
    The commissioners decided that the item of damage to gas mains, under recent decisions of the courts, should not have been included, but that the sum itself, and the proportion charged upon the petitioner’s property were so small, about three and one-half per cent, that no substantial injustice had been done to the petitioner thereby and denied the application.

      John O. Sha/w, for the relator.

      J. A. Beall, for the respondents.
   Davis, P. J.:

The defendants were appointed commissioners under the provisions of chapter 550 of the Laws of 1880, for the purpose of reviewing certain assessments made in the city of New York for local improvements. The main object of the act was to relieve the courts of the vast mass of litigation growing out of such assessments and to confer jurisdiction and the final disposition thereof upon a board of commissioners who should have power to determine whether “substantial injustice was caused” by an assessment, and if they so find, to award such relief “ as should be, under the circumstances and on the evidence presented, just and equitable.” (Laws of 1880, chap. 550, § 3.)

The intention of the act was to leave the question whether “substantial injustice” had or had not been done in a given case, to this special tribunal, as one of fact, to be finally determined by the commissioners ; and in case they found that substantial injustice had been done, to clothe them with power to award such relief as under the circumstances they should adjudge upon the evidence presented to be just and equitable. No power to review their finding upon the material fact, or their conclusion as to the adequate relief to be administered upon such finding, was conferred upon any court.

Although in the interests of justice this court by its inherent jurisdiction has power to review by certiorari the action of such inferior tribunals as that created by this act, whenever not expressly ■ inhibited by statute, yet such power should be exercised with the greatest caution and be restricted to cases of clear excess of jurisdiction, or gross abuse and injustice. To allow the writ of certiorari to issue for the purpose of reviewing eveiy question of law and fact that may be passed upon by the commissioners, is virtually to defeat the purposes of the act and to recall to this tribunal the ultimate determination of all that local litigation over assessments which the legislature meant to transfer to the commissioners for final decision, upon grounds much more equitable and general than any possessed by this court for the disposition of the class of litigations included in the act of 1880. The court should therefore be sedulous, if not astute, to avoid reviving an evil, which had grown burdensome both in this court and the Court of Appeals, and from which the legislature sought to relieve both courts.

In the cáse before us the commissioners found that in the assessment upon the property benefited by a very expensive sewer, and which had been confirmed in 1873, an item for damages to gas mains had been included, and that the inclusion of this item had enhanced in a very small amount the assessment made upon the relator’s property. No complaint seems to have been made of this slight enhancement till the application to the commissioners; and we infer from the facts stated that the right to attack the assessment in the courts on that ground had been barred by lapse of time; but we do not regard that fact, if true, as material to the question to be determined.

The Court of Appeals have lately held, In the Matter of Deering (93 N. Y., 361), that such an item was not properly included in an assessment; that the same should have been borne and paid by the gas company. It is now insisted that the fact that the item was in strictness an illegal one required the commissioners as an absolute matter of right to order its deduction from the relator’s assessment, and the commissioners could not, therefore, find that substantial injustice had not been done.

We do not so understand the powers conferred on the commis sioners. They do not sit as a court of law, and although their authoi’ity is a judicial one in its nature, still it is of such a character as to relieve them from the technical rules applicable to courts of law, and clothe them with the amplest power to do in each case whatever they think to be just and equitable on the evidence presented; or, as expressed in the sixth section of the act, whatever “in their judgment is just and equitable in view of the circumstances.”

They have a right, therefore, to apply the maxim “ de minimis lex non curat ” even to cases where a court of law could not. In this case the relator had slept on his rights for years; and it is obvious he now comes in, after his rights to such relief in a court are gone, to urge them before the commissioners in order to escape by the trifling reduction asked for, the payment of any interest whatever on his assessment during the long series of years he has remained inactive, on the ground that that result will follow a deduction of the kind. The commissioners have adjudged that this was not just and equitable “ under the circumstances,” and have found as a matter of fact that substantial injustice was not caused in his case by the confirmation of the assessment.

We do not feel bound to interfere with this decision by reason of any rule of law arbitrarily requiring us to do so, and if we have a discretionary power in the case we think it would not be judicious under the circumstances to exercise it. As a matter of discretion, we think we ought not to interfere.

It follows that the writ of certiorari should be quashed, with costs to the respondents.

Beady and Daniels, J J., concurred.

Writ quashed, with costs to the respondents.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY. (JAMES D. FISK, Receiver, Appellant, v. JONATHAN M. DAKE, Purchaser, Respondent.)

      Purchaser at a judicial sale will not be compelled to accept a doubtful title — a purchase, by a special gumdian, of the ward’s land is presumptively fraudulent.

    One Martin was authorized by the court to convey, as special guardian of his infant children, certain real estate inherited by them from their mother for not less than $8,000, the proceeds to be invested in government bonds or bonds and mortgages. ^The record shows that he conveyed the premises as special guardian for the nominal consideration of $8,000 to one Mather, who by a deed bearing the same date, for the consideration of $100, reconveyed the premises to Martin, who thereafter conveyed the same to one Hoover. Hoover subsequently executed a mortgage thereon to an insurance company under the foreclosure of which the premises were sold to the insurance company. The children of Martin were not made parties to the action brought to foreclose this mortgage.

      Held, that a purchaser at auction from the receiver of the insurance company was justified in refusing to complete his purchase.
    That the transaction was fraudulent on its face, and that the purchaser could not be compelled to assume the burden of proving by extrinsic evidence such facts as would prevent a recovery by the Martin heirs in any action that might be brought by them.
    Appeal from an order made at a Special Term granting the petition of Jonathan M. Dake, to be relieved from his bid and purchase of real estate.

      Wüngate Cullem,, for James D. Fish, receiver, appellant.

      James Wood, for Jonathan M. Dake, purchaser, respondent.
   Davis, P. J.:

On a sale of the real estate described in the petition made by the receiver pursuant to an order of the court, the respondent bid off the same at the price of $6,000 and paid the sum of ten per cent, and subscribed the terms and conditions of sale as prepared by the receiver. He afterwards filed his petition to be relieved from his bid, and to have the ten per cent refunded and bis costs and expenses of searching the title paid, on the ground that the receiver could not convey to him a good and indefeasible title free from reasonable doubt; and on several other grounds also stated in the petition. The court, at Special Term, granted the prayer of the petition and directed the receiver to refund the per centage paid, with interest:, and to pay $100 for the reasonable expenses of searching the title, with costs of the proceeding.

We are of the opinion that the decision of the court at Special Term was correct, for the reasons stated in the opinion of- Mr. Justice Landon.

It is now well settled that upon a judicial sale the court will relieve a purchaser if the title be a doubtful and unmarketable one. (Jordan v. Poillon, 77 N. Y., 518; McCahill v. Hamilton, 20 Hun, 388; Argall v. Raynor, 20 Hun, 267; Mott v. Mott, 68 N. Y., 246; Lee v. Lee, 21 Hun, 1.)

In Argall v. Raynor (20 Hun, 267) this court held that it is only 'necessary in disposing of sirch a case to ascertain whether or not there is some practical and serious question affecting the title, upon which persons not parties to the suit, and who cannot be estopped by the judgment, have a right to be heard in some possible future litigation.

In the case before us, the title of the insurance company in and to the premises which the receiver offered for sale was acquired by purchase under the decree of foreclosure, in a suit to foreclose a mortgage executed to the company by one Hoover, who was a purchaser from Henry Martin. Martin acquired title by a conveyance from one Mather for the nominal consideration of $100, to whom by deed executed simultaneously, as appears upon the face of the papers, Martin conveyed the premises as special guai’dian of several infant children of his own, who were owners in fee as heirs at law of their mother,- Martin’s deceased wife. Neither of these infants was made a party to the foreclosure suit, and neither of them is estopped by the decree in that suit from .-averring in an action to be hereafter brought by 'him or her, that the sales from Martin to Mather and by Mather to Martin wkre invalid and fraudulent against him or her for reasons apparent • on the face of the instrument, and for fraud on the part of the special guardian in making the sale and conveyance of their property to himself. It may be true that by reason of some fact dehors the record, and which does not appear in the proceedings now before us, the heirs of Mrs. Martin would be defeated in a suit to recover the premises from the petitioner if he took title from the receiver; but the petitioner is not bound to take the chances of that contingency. He is entitled to a marketable title and is not bound to take one apparently open to successful attack. In our judgment the record of the title shows upon its face sufficient to make the title proposed to be conveyed by the receiver a doubtful one, and open to litigation which will be successful unless other facts be shown to defeat the claims of the children and heirs of Mrs. Martin. The special guardian was authorized by the court to sell the property for a sum not less than $8,000, to be invested in government bonds or mortgages of real estate in this State. The record shows that he conveyed the premises by his deed to Mather, nominally for the snm of $8,000, but that Mather, at the same time and by a deed bearing the same date, for the consideration of $100, conveyed the premises directly to the special guardian, who after-wards conveyed them to Hoover, the mortgagor of the insurance company. On its face this transaction was a fraudulent one, and unexplained, it establishes that the proceeding to sell the interest of the infant heirs in the premises was a scheme of the special guardian to get title in himself without payment of anything; and doubtless, when read in the light of the other transactions, to enable a fraud to be perpetrated on the insurance company by securing a loan upon the premises much larger than the real value of the property. For in two days after the special guardian took title from Mather for the consideration of $100, he conveyed the premises to Hoover for the consideration, as mentioned in the deed of $50,000; and then followed several conveyances to other persons for the same consideration of $50,000, resulting in finally vesting the title in the wife of Hoover who joins with him in mortgaging the property to the company to secure a loan of $21,000, and in making a second mortgage of the same date to one Zulich for $6,000. In the proceedings of the special guardian to sell, the estate was shown to be worth but $8,000, and at that sum the special guardian was authorized to make the sale.

There is nothing, therefore, on the record that tends to relieve the inter-mutual conveyances between Henry Martin, the special guardian, and Mather, his grantee and grantor, from the presumption that arises upon the face of their conveyances to each other, as they stand upon the record. The petitioner had, therefore, the right to refuse to take a title stained with a legal and just presumption of fraud, sufficiently unexplained to invalidate those conveyances, and thereby assume the responsibility of being able himself to show that, notwithstanding appearances, the special guardian acted in good faith and really sold the land for $8,000, and received the same from Mather, although the latter immediately reconveyed the premises to him for $100.

The petitioner was properly advised to reject the title under such circumstances, and nothing is shown in answer by the receiver to change the aspect of the facts as they appear upon the records.

We are of opinion, without considering any other objections, that the court correctly adjudged to the petitioner the relief he prayed for.

The order should be affirmed, with ten dollars costs besides disbursements.

Daniels, J., concurred.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN H. BIRD, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and S. HASTINGS GRANT, Comptroller of the City of New York, Appellants.

      City of New York — power of the hoard of estimate and apportionment to transfer unexpended balances of appropriations —1882, chap. 410— The commissioners of accounts home no power to appoint clerics.

    The estimate of appropriations for tlie city of New York, for the year 1884, contained. no appropriation for the hire of clerks for the commissioners of accounts, an appropriation therefor having been stricken from the provisional estimate. February 9,1884, a resolution was adopted by tbe board of estimate and apportionment, by a majority vote and against tbe vote of one member, transferring unexpended balances of appropriations for cleansing markets in 1873,1875 and 1876, and for contingencies in tbe comptroller’s office in 1874, 1875 and 1876, to tbe appropriation for tbe commissioners of accounts “for clerk hire and contingencies.”

      Held, that tbe board bad no power to direct such transfer to be made, and that an order restraining tbe transfer was properly granted.
    Sections 47 and 207 of tbe Consolidation Act (chap. 410 of 1882) regulating tbe expenditures of tbe various departments and authorizing tbe transfer of appropriations to “such other purposes or objects for which tbe appropriations are insufficient, or such as may require tbe same,” were intended to help out deficiencies in appropriations already made, and not to empower the board to make at its will and pleasure new or additional appropriations, and least of all to restore rejected ones, by tbe process of transferring unexpended balances.
    It was tbe intention of the said section (207) to provide for tbe disposition of tbe unexpended balances, annually, by transferring them to deficient appropriations, or applying them in diminution of tbe appropriations for tbe like purposes for tbe next year, or transferring them to tbe general fund of tbe city for tbe reduction of taxation. »
    Tbe commissioners of accounts have no power to appoint subordinates or clerks to be paid for out of tbe city treasury, and no authority exists in tbe city or any of its departments or boards to appropriate or pay any money for such services.
    Aureal from an order of the Special Term continuing an injunction order.

      D. J. Deem, for the appellants.

      Charles JE. Mill&r, for the respondent.
   Davis, P. J.:

This action was brought by the plaintiff as a citizen, resident and taxpayer of the city of New York under the provisions of section 1925 of the Code of Civil Procedure, to prevent waste of the funds of the city. ' “

It is charged, in substance, that the board of estimate and apportionment, assuming to act under section 207 of the Consolidation Act (.1882, chapl 410), have unlawfully directed the transfer of, and the defendants are about unlawfully to transfer, certain unexpended balances of the appropriations of former years for other purposes, tc the credit of the commissioners of accounts for clerk hire and contingencies. It appears that no appropriation for those purposes for the year 1884 was made by the board of estimate and apportionmenfc, but that one proposed therefor-was stricken out by the board. At a meeting of the board on the 9th of February, 188-1-, a resolution was offered that the sum of $0,711.10, be transferred from unexpended balances of appropriations for cleansing markets in 1878, 1875 and 1870, and for contingencies in the comptroller’s office in 3371-, 1875 and 1870, “to the appropriation, salaries, commissioners of accounts, 1881, for clerk hire and contingencies.” The resoiution was adopted by a majority vote, one member of the hoard voting against it. The injunction order restrained this transfer. This action of the hoard was in our opinion wholly unauthorized. Section 189 of the Consolidation Act, provides that the board of apportionment must annually, between tbe first day of August and the first day of November, make a provisional estimate, J>y a unanimous vole, of the amount to ho expended during the next following year. This provisional estimate becomes final after having been submitted to the hoard of aldermen, and reconsidered by the board of estimate and apportionment. It is to he published as prescribed by the act; and the taxpayers of the city have the right to he heard upon it. When these several steps have been duly taken, the apportionment becomes final in its items, and final also in the amount of those items, except as the sum appropriated for such items may be enlarged by the transfers of unexpended balances, as permitted in the cases specified by section 207 of the act. It is out of all reason to suppose that where an item of appropriation has been rejected by tbe board, so that it is excluded from tbe list of appropriations when it becomes final under the law, the board may subsequently at any time in the year for which the appropriations are made, reinstate it by a majority vote under the form and pretext of transferring unexpended balances under the provisions of section 207.

To allow this is to strike down the safeguard of unanimity which the law requires before an appropriation for such an item can be made. The strong protection which that unanimity throws around the taxpayers is annihilated if such a power be sanctioned, for it is manifest that a proposed odious appropriation, which has been defeated by a vigorous resistance of the taxpayers resulting in its failure by want of unanimity in the hoard, can at any time after the list of appropriations has become final, be reinserted by a simple majority, by voting to transfer unexpended balances to such defeated object, if tbe act be so construed as to permit that course. This is the ground on which the Special Term sustained the injunction, and we think it both morally and legally sound.

Sections 47 and 207 of the Consolidation Act, read together, constitute a system of protection against abuses and not a scheme for their commission. There is no intention in the latter to create a post '¡nortem power of reviving rejected appropriations. The design was to help out deficiencies in appropriations already made, and not to empower the board to make at its will and pleasure new or additional appropriations, and least of all to restore rejected ones by the process of transferring unexpended balances. The argument that would tolerate this depends upon a misconstruction of section 207.

The headlight, so to speak, of the city taxation, is fotind in section 47, which is as follows : “ It shall be tbe duty of the heads of all departments of said city and of all hoards and officers charged with the duty of expending or incurring obligations payable out of the moneys raised by tax in said city so to regulate such expenditures for any purpose or object that the same shall not in any one year exceed the amount appropriated by tbe board of estimate and apportionment for such purpose or object; and no charge, claim or liability shall exist or arise against said city for any sum in excess of the amount appropriated for the several purposes.”

Every other pi’ovision of the act touching taxation must be read by tbe light of this section, otherwise its plain and salutary rule of protection is in danger of being merged in the caprice of official discretion — tbe very evil sought to be guarded against. The gross sum of expenditures cannot therefore exceed the gross' sum of the appropriations. But the act contemplated the probability that an appropriation made for'a department might be found by the head of the department to be in excess of the amount actually required for the purposes or objects of the appropriation, and that the amount appropriated for some other purpose or object might turn out to be insufficient; and to meet such a condition of things it empowered the hoard of apportionment to provide for the exigency by transferring the ascertained excess, or so much thereof as might be necessary, to meet the ascertained deficiency. ' This power is expressed in these words:

The board of estimate and apportionment shall have the power at any time to transfer any appropriation for any year which may be found, by the head of the department for which such appropriation shall have been made, to be in excess of the amount required or deemed to be necessary for the purposes or objects thereof to such other purposes or objects for which the appropriations are insufficient, or such as may require the same.” The terminal words, “ or such as may require the same,” are claimed to confer unlimited power upon the board to transfer excess of appropriations to any purpose it may please without regard to the question whether or not an appropriation had been made or refused for such purpose. But as we have seen, this construction is at war with the system which limits expenditures to actual appropriations, and forbids all others.

It also opens a wide door to frauds and abuses because it will only be necessary, if that construction prevails, for the board to make excessive appropriations for numerous legitimate purposes in order afterwards to lay their hands on large sums to be transferred to uses purely in their discretion, for good or evil. This is a possible wrong against which the act intended rigidly to guard. The words “ or such as may require the same ” have reference to the preceding words, to such other purposes or objects for which the appropriations are insufficient,” and the phrase is to be understood as though it read, or such of them as may requi/re the same / the intention being that when several objects and purposes are embraced in the same appropriation, a part of which are satisfied and a part are deficient, the transfer may be to the deficient portion and not for all the purposes and objects of the original appropriation as 'the preceding language might in strictness require.

We entertain no doubt therefore that the power of transfer of excesses given to the board is confined to and can only be exercised in cases whei’e appropriations actually made have proved deficient, and that the board have no authority to use excesses for new objects or purposes, or to make defeated appropriations successful.

A careful examination of the whole of section 207 shows, we think, that it provides for the disposition of excesses, annually, as they arise. Three modes are pointed out: one to transfer to deficient appropriations; the second to apply at the end of each current fiscal year the surplus then existing to diminish the appropriation for the like purpose for the next succeeding year; and thirdly, if neither of these have been done, to transfer such surplus to the general fund of the city and apply the same to the reduction of taxation. The due exercise of this authority by the board makes the fiscal system a perfect one and preserves intact the limitation on taxation and expenditure which, as we have seen, is its cardinal principle. We are of opinion, therefore, that no power existed in the board to seize upon unexpended balances which accrued eight and ten years ago and transfer or apply them to the purposes named in their resolution. If those balances existed they belong to and should be at once transferred to the general fund of the city for the purpose of reducing taxation. To have kept them unused for so great a length of time was a neglect of duty on the part of the officers having the sums in charge.

But it is insisted also on the part of the plaintiff that no power existed to appropriate moneys to pay salaiies to clerks of the commissioners of accounts, because there is no authority of law for the appointment or employment of such clerks at the public expense.

The act under which the appointment of commissioners of accounts is made is as follows:

“ The mayor shall, from time to time, appoint and remove, at pleasure, two persons, who, together with the president of the department of taxes and assessments, shall be commissioners of accounts. It shall be their duty, once in three months and oftener if they deem it proper, to examine all vouchers and accounts in the offices of the comptroller and chamberlain, and to make and publish in the City Record a detailed statement of the financial condition of the city showing the amount of its funded and floating debt, the amount received and expended since the last preceding report, with a classification of the sources of revenue and expenditure and such other information as they shall deem proper. They shall, from time to time, make an examination of the expenses of the several departments and offices, and make such recommendations to the board of estimate and apportionment and other offices with reference thereto and particularly with reference to salaries and duties as they deem advisable. Any one of such commissioners shall have authority, at any time, to make any such examination, and such two appointed commissioners shall be paid a reasonable compensation, to be fixed, as other expenditures, by the board of estiniate and apportionment, not exceeding three thousand dollars each annually.” (See. 110 of the Consolidation Act.)

Our attention is called to no other act of the legislature affecting these commissioners. They are not a department or bureau of the city government. The two commissioners are to be appointed and removed at the pleasure of the mayor. They have no defined term of office and their compensation, except as to its maximum, is wholly in the discretion of the board of estimate and apportionment. We look in vain for any provision in the act above cited, or in any other statute, of power to appoint subordinates or clerks at public expense to perform or assist in the performance of any of the duties or functions of their office. Their duties of course, to some extent,, involve clerical labor; but they are not clerical or perfunctory. They require intelligence, experience, and personal action and judgment.. In the absence of all legislation on the subject it is argued that the duties are such as require clerical aid, and therefore, by necessary implication, the commissioners may appoint or employ all requisite clerks at salaries or compensations to be paid by the city. But no such implication is found in the act itself; that is, in any words of the statute touching the mode of performing the duties and out of which it necessarily arises. It is only found in the nature of their work and increases or diminishes as they may amplify or restrict it. That is to say, it rests upon the argument of convenience. It is-useful and convenient to have clerks or assistants, therefore they may appoint or employ them; therefore the city is bound to pay them salaries or compensation in addition to the authorized compensation of the commissioners themselves, and therefore the board may appropriate whatever sums they deem necessary or convenient for that purpose. This may be sound reasoning when pressed upon the legislature as ground for the enactment of laws permitting the appointing of subordinates and the payment of salaries to such officers or employes, but it is not entitled to the slightest force when addressed to a court as authority for raising money by taxa-' tion in the absence of statutory enactment. Whoever approaches the public treasury to demand compensation for official duties or services must come with the warrant of law in his hands. Places- and officers and offices to be paid by public taxation are not to be-created, by implications from convenience or necessity however clearly they may exist, but only by legal enactment. Any other rule strips the taxpayers of legal protection and leaves them at the mercy of somebody’s discretion or indiscretion outside of the lawmaking power of the people; and that is one definition of tyranny, because in bad hands it is capable of great abuse and oppression.

The only escape from that -danger is to hold that neither oíficé, nor officer, nor title to salary or pay out of the public funds can exist or arise by implication of facts without the express enactment of law. In adherence to this rule as a fundamental maxim there is safety; in departure from it there is not merely danger, but the cerr tainty of a multitude of new offices,” and “ swarms of officers to harass our people and eat out their substance.” As we understand the law there is no right or authority in the city of New York, or in any of its departments or boards, to appropriate or to pay or suffer any person to receive, compensation for official duties or services without the sanction of some express law or enactment.

In the absence of such enactment the board of estimate and apportionment had no power to order the transfer of unexpended balances for the purposes mentioned in the resolution.

The order of the Special Term continuing the injunction is therefore affirmed, with the usual costs and disbursements.

Daniels, J.. concurred.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    HANNAH COHEN and ABRAHAM COHEN, as Administratrix and Administrator, etc., of PISCHAL COHEN, Deceased, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Liability of a city for granting, without authority, a license to keep a wagon on the sired — wJien it is not liable for the negligent exercise of that right by the licensee — the negligence of the city is a question of fact.

    The city of New York granted to bne Marks a license to place his business wagon when not in use, in the street in front of his grocery store. Marks kept the wagon near the curb with the thills turned up and fastened with a string. A passing wagon struck the hind wheel of Marks’ wagon, threw it around towards the sidewalk, broke the string which held up the thills, thereby allowing them to fail down upon and kill the plaintiffs’ intestate who was passing upon the sidewalk. Upon the trial of an action, brought by the administrators of the deceased to recover damages, the court submitted to the jury only the question of the amount of the damages.

      Meld, that this was error.
    That even if it were conceded that the city had no legal right to grant the license to store the wagon on the street, yet the mere fact of granting the license did not render the city liable for the damages occasioned by the negligence of the persons acting under it; that the granting of the license was not the immediate cause of the injury.
    Where the injury clearly results from the negligent mode in which the licensee exercises the privilege granted to him, which mode is no part of the license or grant, there must he some proof of negligence showing permission to use or acquiesce in the mode of use, after notice or knowledge thereof on the part of the licensor.
    The question of negligence in such a case is one of fact and should be submitted to the jury.

      Mwme v. Mayor (74 N. Y., 273, and 47 id., 639) distinguished.
    Appeal from a judgment in favor of tbe plaintiffs, entered on tbe verdict of a jury, and from an order denying a motion for a new trial,' made on tbe minutes of tbe justice before whom tbe action was tried.

      D. J. Deem, for tbe appellants.

      JST. A. Chedsey, for tbe respondents.
   Davis, P. J.:

The appellants granted a license to the defendant Michael Marks to store his wagon, used by him in his business, when not in use, in front of his grocery store in Attorney street, in the city of New York. Under that license the defendant Marks was accustomed to keep his grocery wagon in the street next the curb in front of his store, and to turn up the thills of the’wagon and fasten them with a string. The defendant Muller was driving his ice wagon rapidly through said street, and in passing the place where the wagon of Marks’ was stored, he drove so as to hit the outer hind wheel of the wagon and throw’ it around so that the front of the wagon was toward the sidewalk, and the string which held up the thills was broken. The plaintiffs’ intestate was at that moment passing on the sidewalk, and as the thills fell from the breaking of the string, they struck him with such force on his head as to cause his death. The plaintiffs, as his representatives, brought this action against the city, and Marks and Muller as. jointly liable for the injury which caused the death of the intestate. Upon the facts shown the court directed the jury to assess the damages for the plaintiffs against all the defendants, and submitted no other question to the jury. The appellants excepted, and after a verdict was rendered moved for a new trial on the minutes of the court on the exception, etc., which motion was denied. The appeal is from both the judgment and the order denying the motion.

If it be conceded, as probably it must be, that the city had no legal right to grant the license to store or keep the wagon in-the street, still its liability for the particular injury,which caused the death of Cohen cannot, we think, be sustained upon proof of the mere fact of granting the license. That fact was not the immediate cause of the injury which resulted from the negligent driving of the defendant Muller and the insufficient manner in which the defendant Marks had tied up the thills of his wagon. If the 'thills had been securely and properly fastened up as they ought to have been, the fastenings would not have been broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injuries. To make the city responsible for the injury, some evidence tending to show knowledge on its part or notice in some form of the insecure or careless mode in which, the wagon was stored in the street must be shown. The license did not authorize the negligence which caused the death.

It was at most a remote but not an immediate cause of the injury; and it cannot be held as matter of law that the license authorized any such negligence as it is clearly-apparent the defendant Marks was guilty of in his mode of using the privilege sought to be conferred by the license. ¡

If notice or knowledge of the improper mode of tying up the thills had been brought home to the public authorities the case would fall within the principle of Hume v. The Mayor (74 N. Y., 273), and Hume v. The Mayor (47 N. Y., 639). The court at the trial held in substance -that the city had no power to license the use Oa the street for the storage, and, that by illegally authorizing it, the city contributed to the creation of a public nuisance, and -was, therefore, jointly liable with the other defendants for the injury without regard to the question whether the direct cause of injury was or was not some special negligence of the licensee to which the city made no direct contribution, and of which it had no notice or knowledge.

This, we think, was going beyond the established principles governing such cases, for it would follow from such a rule that every paistaken excess of power authorizing the use or occupancy of a public street would charge the city with liability for any and every act of negligence every person using the street might be guilty of.

We think the true rule in such cases is that where the injury clearly results from the negligent mpde in which the licensee exerpises the privilege granted to him, which mode is not part of the license or grant, there must be some proof of negligence showing permission to use, or acquiescence in the use of, the mode after notice or knowledge on the part of the licensor. If the authorities of the city knew that Marks was in the ..habit of negligently and insecurely tying up the thills of his wagon, it would be the duty of the city to require him to make them safe.' The question of negligence in such a case is one of fact for the jui’y. The court took the question wholly from the jury without the consent of the appellant; so that if there were evidence in this case .tending to show notice in any form to the city that Marks stored his wagon under the license in an unsafe and insecure manner, it was error to take the question arising upon such evidence wholly away from the jury. It ^follows that the judgment, so far as it relates to the city and the order denying the new trial, must be reversed and a new trial granted as against the appellants, with costs to abide the event.

Daniels, J., concurred; Beadt, J., dissented.

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