author: Beekman, J.

text:
    The People, Pl’ff, v. American Steam Boiler Insurance Company, Def’t. In the Matter of the Southern National Bank.

      (Supreme Court, New York Special Term,

      Filed October, 1895.)

    Corporation—Receiver—Claim.
    Where a claim against an insolvent corporation is presented to, and rejected by, the receiver, appointed in proceedings for its dissolution, notice of an application for an order of reference need not be given to the attorney general.
    Action by the people of the state of New York against the American Steam-Boiler Insurance Company for the dissolution of said company. The Southern National Bank presented a claim to the receiver, which was rejected, and an application made to an appointment of a referee to determine the same.

      John R. Abney, for claimant; Henry D. Hotchkiss, for certain stockholders.
   Beekman, J.

The corporation above mentioned has been dissolved in voluntary proceedings instituted for that purpose, and a permanent receiver has been appointed. The Southern National Bank, claiming that the corporation was indebted to it, made a demand for payment upon the receiver, who rejected the claim, whereupon the following consent or agreement was entered into by the Southern National Bank and the receiver :

“Whereas, on the 11th day of April, 1894, the Southern National Bank of New York filed with Henry S. Ward, Esq., receiver of the American Steam-Boiler Insurance Company, a claim against the said American Steam-Boiler Insurance Company lor the sum of five thousand one hundred and seventy six ($5,176.60) 60-100 dollars; and Whereas the said Henry S. Ward, Esq., receiver, has rejected said claim, and whereas the said Southern National Bank of New York insists thereon: Now, therefore, pursuant to the statute in such cases made and provided, it is hereby consented that the controversy between the said receiver and the said Southern National Bank of New York be reférred to Charles W. Dayton, Esq., counselor at law, of the ,city of New York, as sole referee to hear and determine the same."

This stipulation or agreement is dated January 3, 1895, and on the following day an order was made at special term, before Mr. Justice Andrews, entitled as above, which, after reciting the reading and filing of the consent above mentioned, order on motion of the attorney for the receiver, “ that the controversy between Henry S. Ward, as receiver of the American Steam-Boiler Insurance Company, and the Southern National Bank of New York, concerning the claim of the said Southern National Bank of New York against the said American Steam-Boiler Insurance Company be, and the same is hereby referred to Charles W. Dayton, Esq., counselor at law, of the city of New York, as sole referee, to hear and determine the same;” which order, under the direction of Mr. Justice Andrews, was duly entered in the ofiice of the clerk of the city and county of New York. The reference thereupon proceeded, all parties in interest being lepresented by their respective counsel thereon, and a large amount of testimony has been taken, which has resulted in a_ report by the referee in favor of the claimant, which report has been filed, and the matter now comes on for hearing before me on exceptions thereto which have been filed by the attorney for the stockholders. A preliminary objection was raised that the attorney general had received no notice of the application for the order of reference based upon the agreement above mentioned, and that the order was, therefore, void, and all proceedings had under it a nullity. That question was the only one that was argued before me, it being understood that, if it should be determined adversely to those who raised it, the motion should afterwards be heard upon its merits.

Section 8 of chapter 378, Laws 1893, entitled “ An act in relation to receivers of corporations,” provides that:

“ A copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon to the court, in every action or proceeding now pending for the dissolution of a corporation or a distribution of its assets, or which shall thereafter be commenced for such purposes shall, in all cases, be served on the attorney general, in the same manner as provided by law for the service of papers-on attorneys who have appeared in actions, whether the applications but for this law would be ex parte or upon notice,.and no order or judgment granted shall vary in any material respect from the relief specified in such copy or order unless the attorney general shall appear upon the return day and have been heard in relation thereto; and any order or judgment granted in any action or proceeding aforesaid, without such service of such papers upon the attorney general shall be void, and no receiver of any such corporation shall pay to any person any money directed to be paid by any order or judgment made in any such action or proceeding, until the expiration of eight days after a certified copy of such order or judgment shall have been served as aforesaid upon the attorney general.1’

This statutory provision is still in full force, and, if applicable to the particular proceeding before me, the contention on the part of the counsel for the stockholders must be sustained. In determining this question, it becomes necessary to consider the particular authority on which the reference in question is founded. The receiver herein was appointed under section 2329 of the Code of Civil Procedure. By that section, sections 66-89, Rev. St. (8th ed.), relative to receivers and their powers, are made applicable to receivers appointed under the section in question. Section 68, Rev. St., provides as follows:

' “ Such receivers shall have all the power and authority conferred by law upon trustees to whom an assignment of the estate of insolvent debtors may be made, pursuant to the provisions of the fifth chapter, second part, Revised Statutes.”

Section 73 provides that:

“ Such receivers shall have the same power to settle any controversy that shall arise between them and any debtors or creditors of such corporation by a reference as is given by law to trustees of insolvent debtors; and the same proceedings for that purpose shall be had and with like effect; and applications for the appointment of referees may be made to any officer authorized to appoint such referees on the application of the trustees of insolvent debtors, who shall proceed therein in the same manner, and the referees shall proceed in like manner and file their report with like effect in all respects.”

The provisions of the Revised Statutes so referred to, relative to the powers and duties of trustees of insolvent debtors, are as follows: Section 19, art. 8, part 2, chap. 5, tit. 1, 2 Rev. Stat., states:

“ If any controversy shall arise between the trustees and any other person in the settlement of any demand against such debtor or of debts due to his estate, the same may be referred to one or more indifferent persons who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect, signed by them.”

By section 20 it is provided that if the referee or referees are not so selected, then the trustees, or any other party to the controversy, may serve a notice of an intention to apply to the officer who appointed the trustees, or to any judge of the supreme court, at chambers, for such appointment, which notice must be served ten days before the time specified in the notice for the application. By section 21 the officer to whom such application is made is required thereupon to select such referees. By section 23 it is provided that:

“ The officer, before whom they shall be selected shall certify such selection in writing. Such certificate or the written agreement of the parties shall be filed by the trustees in the office of a clerk of the supreme court when the trustees were appointed under the first article of this title; and in the said office or in that of the clerk of the court of common pleas of the conntv when the trustees were appointed under any other article of this title; and a rule shall thereupon be entered by such clerk in vacation or in term appointing the persons so selected to determine the controversy.”

Section 24 provides that such referees shall have the powers, and be subject to the duties, and receive the same compensation, as referees appointed in the supreme court in personal actions pending therein ; and by section 25 it is declared that:

“ The report of the referee shall be filed in the same office where the rule for their appointment was entered, and shall be conclusive upon the rights of the parties, if not set aside by the court.”

Under this situation of the law upon the subject, it is claimed in support of the reference in question that there was no motion for the appointment of referees within the meaning of the act of 1883, and that no order of the nature contemplated thereby was made; that the act of 1883 referred only to a motion in an action or proceeding in which a receiver was appointed, and not to a collateral proceeding in the nature of an action instituted by the receiver; that the reference existed solely by force of the agreement entered into between the receiver and the claimant under statutory authority expressly conferred upon them so to agree, and that the provision for the entry of an order of reference in no sense depended upon any action by the court, or upon any application to the court for that purpose, but was a purely executive act on the part of the clerk, to be performed by him by virtue of a statutory mandate without further action or interference on the part of either the receiver or the claimant, whose duty under the statute was completely fulfilled upon filing with the cleric the agreement of reference. The claim made by the attorney for the bank that, apart from any, other question, no notice to the attorney general was necessary, because the reference was not a -proceeding in an action, or special proceeding-under which the receiver was appointed, is hardly tenable under the decision of the court of appeals in the case of Vanamee, 119 N. Y. 646, in which it was held that the attorney general, under the act of 1883, was entitled to notice of a proceeding instituted by a receiver for-a warrant, under that portion of the Revised Statutes which authorizes the trustees of an insolvent debtor to apply to the court for a warrant bringing before it for examination such debtor, his wife, or any other person alleged to have concealed or embezzled any part of the estate of the debtor which vested in the trustees.

The only question, then, which remains for consideration is whether there -was an application to the court, and the entry of an order in this proceeding, within the meaning of the act of 1883. It may be conceded that this statute should receive a liberal construction, in view of its remedial character. But the construction must be reasonable, and should not seek to extend the act beyond its plain meaning, or to include within it cases to which it can have no rational application. Within these principles, I do not think that the case before me comes within the statutory requirement under consideration. The provision authorizing the receiver to agree with a creditor upon a reference of a disputed claim was intended to afford a speedy and an economical method of determining the question at issue without the expense and delay attending an action at law. The object was to keep the contending parties out of court, and to free them, as far as possible, from the forms of legal procedure. Hence we find the statute providing for a reference of a claim by written agreement designating the referee or referees to whose arbitrament the matter in dispute is to be submitted. The sanction of the court to this agreement is not required, and the selection of the referee is not only free from any judicial supervision or review, but even the direction of a judge, by whom the powers of the court are usually set in motion, is dispensed with in the formal order which the statute directs the clerk to enter upon the filing of the agreement. In a certain sense this order (or “ rule,” as the statute describes it) proceeds from the court through the action of its clerk, but the act is purely ministerial on the part of the latter, and quite similar in that respect to the entry of j udgment by him in cases where no application to the court for judgment is required. The vital principle of the whole proceeding is found in the agreement for the reference, and when the receiver has filed this, no motion on his part is necessary to perfect the proceedings, or to secure to the referee the endowment of authority to proceed, for the statute makes it mandatory upon the clerk ex proprio motu to enter the order appointing the person so selected to determine the controversy, and it is the statute which declares that such referee shall be subject to the responsibilities and possess the powers which affect and qualify referees “appointed by the supreme court in personal actions pending therein.” A somewhat similar provision will be found in section 2718 of the Code of Civil Procedure, which requires the county clerk to enter an order referring a matter in controversy between an executor and a creditor of an estate to the referee, whose selection is made by the agreement of the parties. Another significant circumstance will not be overlooked in the provision, which requires the report of the referee to be filed in the office of the clerk where the order was entered, and which declares that such report shall be “conclusive upon the rights of the parties, if not set aside by the court.” It will be noticed that no further action by the court is contemplated to give finality or effect to the report. The statute does not say that it shall be conclusive upon being affirmed by the court, but gives it immediate effect as a judgment, without any additional sanction, with the single qualification that it may be set aside by the court,—obviously, when successfully assailed in an appropriate proceeding instituted by an interested party for the purpose. It will be seen that the proceeding was intended to be one of great simplicity, in which it should not be necessary to move the court either to set it in operation or to give it ultimate effect. It is true, in the present case, that the order was one granted at special term, but it is none the less true that the order was entered by the clerk as it would have been his duty to do had the fiat of the judge not been affixed. The latter was surplusage, and the order may not,' therefore, be attacked as in violation of section 8 of the act of 1883, when the only element tending to bring it within the section is an unnecessary act, not required by the statute, and which gave no additional force or sanction to the order. I have, therefore, come to the conclusion that the proceeding which led to the entry of the rule in question was not a motion, or the rule an order, within the meaning of the act of 1883, and that the failure of the receiver to give notice to the attorney general of either does not invalidate the proceedings had before the referee. The attorney for the claimant has pursued the practice of anticipating any motion on the part of the contesting parties to set report of the referee aside under the statute by moving to confirm it. Notice of this motion has properly been given to .the attorney general, who, it may be said in passing, does not join in the preliminary objection made by the counsel for the contesting stockholders. This objection being overruled, the further hearing of tire motion on the merits may be brought on before me on two days’s notice.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    John Gillies, Resp’t, v. The Manhattan Beach Improvement Company, Limited, App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Pleadings—Proof.
    Where the cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised at the trial or objection made to that course, the successful party will he deemed to have recovered upou the facts shown, and not strictly upon his pleading. 4
    2. Same—Variance.
    Where the complaint presents a cause of action upon a quantum meruit, the answer and reply set forth a contract and th,i3 facts, applicable to either theory of the case, are contained in the pleadings when read together, the defendant must be deemed, from a failure to raise the question iu some form, to have assented to, or at least waived, the variance, if any, and it is too late to insist upon such a point upon appeal to the court of appeals.
    3. Evidence—Contract—Architect's certificate.
    Where a contract for work stipulates that the amount due the contractor shall be evidenced by the certificate of a civil engineer, the mere fact that it was made after the commencement of an action to recover the amount claimed by the contractor, will not affect its character as evidence on the trial under the terms of the contract, if the contract does not make, such a certificate an indispensable condition of maintaining an action.
    4. Same—Compromise—Waiver.
    The objection that a paper, introduced in evidence by the plaintiff as. the basis of his recovery, is competent because made with a view to the settlement of the controversy, comes too late on appeal, when no such, question was raised at the trial; if it had been made at the proper time, the plaintiff might have sustained that part of his case by other proof.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    The complaint in this action alleged “that plaintiff, at the request of defendant, and for its benefit, performed work, labor and services by himself and his employees, and furnished materials of various kinds and descriptions in and about the work, for defendant, in the county of Kings, in and about the building and construction of a bulkhead and dyke, with other work incidental thpreto and connected therewith; that the work, labor and services so rendered and the materials so furnished were worth the sum of thirty-eight thousand one hundred and thirty nine fi-lOO dollars ; that no part of said sum has been paid except the sum of twelve thousand seven hundred and fourteen 30-100 dollars, and that there is now justly due and owing to this plaintiff for and on account of said work, labor and materials the sum of twenty-five thousand seven hundred and thirty 76-100 dollars, with interest,” for which sum plaintiff demanded judgment.

      Alfred A. Gardner, for app’lt; JEdioin 0. Low, for resp’t.

      Affirming 56 St Rep. 206.

   O’Brien, J.

The plaintiff recovered a sum which the referee found was the balance due him upon a contract between the parties, whereby the plaintiff undertook to perform for the defendant certain work which is specified therein.

The defendant, in support of the appeal, presents but two questions as ground for the reversal of the judgment: (1) That the complaint set out a cause of action upon a quantum meruit, and the recovery was upon the contract, and that seems to be so. The defendant’s answer alleged that the work was done under the contract, claimed that there was a breach of it by the plaintiff in failing to perform in certain particulars, and, by way of counterclaim, claimed damages for the breach. To this the plaintiff replied, alleging that the contract was waived by the parties, and denying any loss or damage to the defendant. The facts applicable to either theory of the case were contained in the pleadings precisely as if the plaintiff had counted on the contract, and no question was raised by either party in regard to the form of the action. The plaintiff opened the case by putting the written contract in evidence, without any objection, and, in the same way the certificate of the defendant’s engineer, showing the balance due to the plaintiff, which was awarded to him by the referee, was introduced. This certificate was one of the stipulations of the contract, and the evidence upon which the plaintiff was to become entitled to payment, and it showed that there was due the plaintiff for the work the sum which he recovered. The only exception that the defendant relies upon to raise this question is one taken at the close of the nlaintiff’s case to the ruling of the referee refusing to dismiss the complaint on the ground that the plaintiff had not made out a cause of action.

The point that the plaintiff had failed to make out the particular cause of action stated in the complaint was not raised at all, nor was it suggested at any stage of the trial. The facts proved and found warranted the judgment, and it is a familiar rule that where the cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised at the trial, or objection made to that course, the successful party will be deemed to have recovered upon the facts shown, ana not strictly upon his pleading. Belknap v. Sealy, 14 N. Y. 143.

The defendant, from the course of the trial and failure to raise such a question in some form, must be deemed to have assented to, or at least waived, the variance, if any, and it is too late to insist upon such a point upon appeal to this court.

(2) The other point is that a material finding of fact by the referee is not supported by evidence. This, of course, presents a question-of law.

The referee found that the defendant’s engineer, after the completion of the work and on July 9, 1884, made a final estimate of the work done by the plaintiff, which appeared to be in writing, which showed that there was due to the plaintiff $7,884.70, and he further found, from the testimony of the engineer at the trial, that this sum was in fact due to the plaintiff on account of the work in question, at the time the estimate'was made, namely, July ■9, 1884.

There is no question raised now against this finding, and the plaintiff in fact recovered a sum. much larger. There was a further finding that this estimate did not include extra' work and materials furnished by the plaintiff in the completion of the work.

The next finding is one which the defendant’s counsel now .assails, and is to the effect that the defendant’s engineer subsequently made another final estimate showing due to the plaintiff on July 9, 1884, the sum of $9,149.97, including the extra work and materials referred to, and this was the sum which the referee reported as due to the .plaintiff on account of the work.

The evidence.in the case seems to support the contention of the learned counsel for the defendant, that the last paper referred to in the finding was made by the engineer after the commencement of this action and ras a basis for a compromise between the parties. The finding complained of is but a transcript of this paper. It is not, therefore, correct to say that the finding has no evidence to ■sustain it. It has the written estimate or certificate of the defendant's engineer which, by the terms of the contract, was given the force of proof on certain questions.

There might have been and probably was, a question as to whether the paper, under the circumstances, was admissible in ■evidence. But it was not objected to, and even after all the facts were developed in regard to its origin and purpose there was no motion by the defendant to strike it out. So that the defendant has no exception in the case that enables it to raise any question in regard to the admission of the paper. Holmes v. Roper, 141 N. Y. 64; 56 St. Rep. 596; U. S. Vinegar Co. v. Schlegel, 143 N. Y. 537; 62 St. Rep. 826. The mere fact that it was made by the engineer after the commencement of this action would not affect its character as evidence on the trial under the terms of the contract since parties are not obliged to have all the proofs on hand when the suit is commenced. It is enough if they have it on hand at the trial. It is true that a contract-may be so drawn as to make stich a paper an indispensable condition of maintaining any action, but it cannot be claimed, and is not claimed, that .any such condition was inserted in the contract in question. Perhaps the real objection to the paper, if any, was that it was made with a view to a settlement of the controversy (102 N. Y. 660), but no such question was raised at the trial, and it might be unjust to the plaintiff to permit such an objection to prevail now, since, if it had been made at the proper time, lje might have sustained that part of his case by other proof. We think, therefore, that the question of pleading was waived by the course of the trial, and, as to the question of evidence, the defendant has no •exception in the case sufficient to raise it on this appeal. These are the only points raised by the learned counsel' for the defendant on his brief, and a further examination of the record is unnecessary.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Enron, J.

text:
    Charles N. Williams, Resp’t, v. Nathaniel C. Boynton, as County Clerk, etc., App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Injunction—-Public officer—Threat.
    The fact that a public officer has not threatened to do an illegal act, is no bar to the maintenance of an action restraining its commission, where the case is not one of a mere apprehension of some possible act, but of the performance of an official duty already commanded by apparent competent authority, the regularity of which it is not his business to investigate, but which it is his official duty to obey.
    2. Officers—De facto.
    The doctrine as to the validity of acts of officers defacto does not apply, where the official action is challenged at the outset and before any person has been, or can be, misled by it, and where nó rights have, as yet, accrued upon its faith, either of a public or private character.
    3. Same—Color of office.
    In order to constitute a de facto officer, there must either be some appointment or .election which might be supposed to be valid or, possibly, such an occupation of the office without dispute and with general acquiescence as would reasonably lead to the inference that such authority existed, though not at the time known.
    4. Constitutional Law—Local act.
    Chapter 148 of 1893, which undertakes to validate an illegal and wholly unauthorized resolution of the board of supervisors, locating or changing a,county seat, is unconstitutional and void.

      Appeal from a judgment of the general term of the supreme court in the third judicial department, entered upon an order, which reversed a judgment in favor of defendant dismissing the complaint upon the merits entered upon a decision of the court on trial at special term.
    This was an action brought by a taxpayer and resident of the county of Essex for the purpose of having certain proceedings of the board of supervisors of that county for the removal of the county seat declared illegal and void, and restraining the defendant from any official acts for the submission of the question-to the electors as illegal official acts and a waste of public funds.
    The board of supervisors of the county of Essex, consisting of eighteen members, in December, 1892, by a vote of ten to eight, passed a resolution changing the site of the county buildings.
    - The chairman of the board, upon the ground that two of the members, one named Sullivan and the other Moynehan, had not been elected supervisors, decided that the resolution was lost; the decision of the chair was overruled by the same vote, and subsequently by the same persons another resolution was passed directing the former resolution, and notice that the question of such removal would be submitted to the electors, to be.published.
    After the town election in the town of Minerva, in March, 1892,. the town canvassing board gave a certificate of election to Sullivan, although his opponent, Bradley, had a majority of the votes cast. A mandamus was issued requiring such board to issue a certificate of election to the candidate having the greatest number of ballots cast for him. The order directing the issue of such mandamus was, upon appeal, affirmed by the general term, and in June, 1892, by the court of appeals.
    Thereafter the town board of canvassers issued a certificate of election to Bradley, who duly qualified, and by an order of the-court Sullivan was directed to deliver the books and papers connected with the office of supervisor to Bradley.
    Thereafter, notwithstanding these facts, a committee on contested seats of the board of supervisors, to which the matter had been referred, reported in favor of the seating of Sullivan, which report was adopted, and he sat with the board and voted for the resolutions in question.
    Thereafter chapter 148 of Laws of 1893 was passed, assuming to legalize the action of the board of supervisors in the premises.

      Chester B. McLaughlin] for app’lt; Richard L. Hand, for resp’t.

      Affirming 54 St. Rep. 748.

   Enron, J.

The appellant contests the right of the plaintiff to maintain this action at all, because there is no evidence that the clerk had threatened to submit the question of removing the county seat to the electors. It needed no threat to establish the danger apprehended. The clerk, as a public officer, was required by law to make the submission upon the direction of the board of supervisors. That direction had been given. It was his official duty to obey it, and the presumption is that lie was about to do so, and would do so unless restrained by the order of the-court. The case was not one of a mere apprehension of some possible act, but of the performance of an official duty already commanded by an apparently competent authority, the regularity of which it was not his business to investigate. The act was much more certain to be done than one merely threatened by a person under no obligation at all. We must, therefore, consider the other questions raised by the appeal.

The resolution of the board of supervisors ordering a removal of the county seat, subject to a vote of the electors, depended for its validity upon the vote of Sullivan as supervisor of the town of Minerva, and so as a lawful member of the board. That he was not such supervisor had been adjudged before he took his seat. The court had ordered a re-canvass of the votes east, without rejecting certain paster ballots, and, as a result, Bradley was found to have been elected, and the proper certificate was given to him. nevertheless, the board denied Bradley’s right and seated Sullivan, assigning as authority for the decision the action of the state board pf canvassers in the contest of Osborn against Dean in Dutchess county, which was a contempt of court and punished as such. Thereafter the seating of Sullivan was brought before the supreme court by a writ of certiorari, and the action of the board in that respect reversed and annulled. There is no doubt that Bradley was the duly elected supervisor and Sullivan an intruder and usurper, and. that the action of the board in assuming to seat him was utterly indefensible. He had no right to vote and the resolution was never passed by the required majority. So much is not seriously questioned, but the. appellant insists that while Sullivan was not supervisor de jure he was such de facto, and so his vote is to be sanctioned and the resolution upheld. I do not think that the doctrine invoked has any just application to a case like the present. It applies for the protection of third persons or the public, who have acquired rights upon the'faith of an appearance of authority and wffio will •be harmed by the actual truth. It does not apply where the official action is challenged at the outset and before any person has been or can be misled by it, and where no rights have, as yet, accrued upon its faith, either of a public or private character. Here the act of the officer had but one immediate effect, which was to set in motion another public officer. The resolution of the board did not change the county seat. Eelatively to that result it was inchoate, incomplete, one step toward a purpose not jet accomplished, and before the end was reached and the intended act completed, the court interfered and prevented further progress. Ho private individual had acquired any right upon the faith of the resolution, and before the public had or could acquire any, the validity of the action was challenged, and the very office of the injunction was to stop the incomplete and inchoate act so as to prevent either individuals or the public from being in any manner affected by it. But if the doctrine had any proper application it is still true that Sullivan was not a de jacta officer, because, when he cast his vote, he had no color of title and was a mere usurper and intruder. An existing appearance of right which may mislead, is the essential ground of the doctrine, for otherwise there is no excuse for the party deceived and no basis for a demand of protection. There must either be some appointment or election which might be supposod to be valid, or, possibly, such an occupation of the office without dispute and with general acquiescence as would reasonably lead to the inference that such authority existed although not at the time known. Here, however, all color of title in Sullivan was lost by the adjudication of the court compelling a re-cauvass, and its further explicit order requiring him to surrender the papers of the office. His color of title was wholly destroyed by a public judicial decision, and he became a mere usurper and intruder whose act was challenged at the moment it was done.

The more difficult question, however, is as to the effect of the validating act of the legislature which provided that the proceedings of the board relating to the change of the county seat should have the same force and effect as if all the persons sitting as members had been duly elected and qualified. There was no - effort to make Sullivan a lawful supervisor. That the legislature could not have done. There was no attempt to make his vote a legal vote. That, also, was beyond the legislative power. But the effort was to make the thing done as valid as if Sullivan had been lawfully elected, and as if his - vote had been entirely legal. In other words, the' legislature itself passed the resolution, for that had nothing else to stand upon. The board did not pass it, for a majority of the supervisors rejected it, and it stands, if it stands at all, solely upon the fiat of the legislative will. But the constitution forbids the passing of a local law in cases, among others, of “locating or changing county seats.” Can ten or twenty men, not. supervisors, having no color of authority, and being mere usurpers, call • themselves a county board, pass a resolution to change the county seat, and'then have their act validated by a special and local law covering that case alone ? It seems to me that the validating act would be one in a case of changing a county seat, that it would amount exactly to such a change by legislative enactment, subject to the vote of the people, and, in the case supposed, the legislature would be enabled to defeat wholly the constitutional provision by the indirect method of a defective resolution and then a validating act. It would do indirectly what it could not do directly, and avoid the constitutional provision in form while violating it in fact. Here there was something more than a defect or an irregularity. There was an utter want of authority for the resolution. It never was in fact .passed.' It became one, if at all, by pure force of the legislative will, and in substantial effect it may be said that the supervisors never passed the resolution, but the legislature did. They might have done it by some general law. They could not do it by one which touched the county of Essex alone and a single pretended act of its board of supervisors.

I think the general term were right, and the judgment should be affirmed, with costs.

All concur, except Andrews, Oh. J., who dissents on the question of validation. Judgment affirmed.


author: Peckham, J. Gray, J.

text:
    Philip Schuyler, Resp’t, v. Ernest Curtis et al., Def’ts; Alice Donlevy et al. App’lts.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Injunction—Statue op decedent—Rights op relatives.
    The fact that persons, who are attempting to erect a statue or bust of a deceased woman, had not the honor of her personal acquaintance or friendship while she was living, or at most had been associated with her in philanthropic enterprises, constitutes no ground, on the part of her surviving relatives, for an injunction restraining them from carrying out such purpose, provided their motive is to do her honor and the work is to be done in an appropriate manner.
    2. Same—Right op privacy.
    The' individual right of privacy, which a person has in his lifetime, expires with the death of such person.
    3. Same—Relatives.
    The privilege, which is given to the surviving relatives of a deceased person to protect his memory, exists for the benefit of the living, to protect their feelings and to prevent a violation of thúr own rights in the character and memory of the deceased.

      4. Same—Mental distress and injury.
    In this class of cases, there must be some reasonable and plausible ground for the existence of this mental distress and injury ; it must not be the creation of mere caprice nor of pure fancy, nor the result of a supersensitive and morbid mental organization, dwelling, with undue emphasis, upon the exclusive and sacred character of this right of privacy.
    5. Same.
    In such case, a proposed act which a court will enjoin because it would be a violation of a legal right, must, among other conditions, be of such a nature as a reasonable man might see, and probably would cause mental distress and injury to any one possessed of ordinary feeling and intelligence, situated in like circumstances as the complaining relative, and this question must always to some extent be one of law.
    6. Same—Consent op relatives.
    So long_ as the real and honest purpose is to do honor to the memory of one who is deceased, and such purpose is to be carried out in an appropriate and orderly manner, by reputable individuals and for worthy ends, the consent of the deseen dants of such deceased person is not necessary, and they have no right to prevent, for their own personal gratification, the accomplishment of such purpose.
    7. Same—Misstatement in circular.
    The fact that, in the circulars requesting subscriptions for the statue, the deceased was by mistake represented as the founder of the Mount Vernon Association, when in fact she was only a vice-regent from her state, is not ground for an injunction to restrain the erection of such statue, in the absence of proof that such misstatement was intentional or that it would not be corrected when attention was called to it.
    8. Same—Feelings op deceased.
    The feelings of the deceased, if she was alive and confronted with such a proposition to do honor to herself, cannot be considered,in determining the right of relatives to such injunction.
    9. Same—Location op statue.
    The placing, by the same association, of the statue of the deceased in the same room for exhibition with the statue of the representative of a class of women reformers does not tend in the slightest degree to confuse the identity of the deceased, nor lead in any way to the supposition that she was in sympathy with, or believed in, the correctness of the principles advocated by such woman reformer.
    10. Same—Ideal statue.
    The making of an ideal statue, not intended as a likeness, for exhibition as the statue of a deceased representative woman philanthropist, cannot, in the absence of proof that it is a fraud upon the public, be restrained at the instance of her surviving relatives.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff granting a perpetual injunction entered upon a decision of the court on trial at special term.
    The plaintiff brought this action against the defendants to restrain them from making a statute or bust of the late Mrs. Mary M. Hamilton Schuyler in any form, and from causing the same to be made or exhibited; also from receiving or soliciting subscriptions for the purpose of defraying the cost and expense of making such bust or procuring it to be made, and also to restrain them from making use of the name of Mrs. Mary M. Hamilton Schuyler or circulating any description of her in any way in connection with the “Women’s Memorial Fund Association” mentioned in the record. The findings of the court upon the trial of the action state what is material as to the facts upon which the action is based, while the conclusion of law show the theory upon which relief has been granted.
    The court has found among other facts the following : The plaintiff is the only son of George L. Schuyler, late of the city of New York, and of Eliza Hamilton Schuyler, his wife, who was a daughter of the late James A. Hamilton and granddaughter of Major-General Alexander Hamilton.- Mrs. Schuyler died in the year 1863, and plaintiff’s father for his second wife married Mary Morris Hamilton, a younger sister of his first wife. The second Mrs. Schuyler died in May, 1877; leaving no children. Her husband died in July, 1890, and her only brother died in December, 1889. The only immediate relatives, now living, of the second Mrs. Schuyler^ are certain nephews and nieces, anuncie and an aunt, all of whom approve of the commencement and maintenance of this action. The defendants other than Hartley are members of a voluntary and unincorporated association in New York city named “The Woman’s Memorial Fund,” and its avowed object was the completion of two sculptures to honor “ Woman as the Philanthropist” and “Woman as the Beformer,” to be placed on exhibition at the Columbian Exposition of 1893. This association ni May, 1891, publicly announced that “ as the typical Philanthropist, Mary M. Hamilton, who died Mrs. G. L. Schuyler, has been chosen as the subject of the statue," and about that time the association began to send printed circulars to that effect and to solicit subscriptions for the purpose of carrying out this project, and public announcement was made that a contract had been entered into with the defendant Hartley, a professional sculptor, for the execution of a statue of Mrs. Schuyler to be placed on exhibition as stated.

      It was also announced that the association intended to place the statue on exhibition at the same time and place as a statue of Miss Susan B. Anthony, whom the association had chosen as the subject of the statue to be designated the “ Representative Reformer.” George S. Schuyler, the husband, and Alexander Hamilton, the brother, of the deceased Mrs. Schuyler, were at the time when the association claims to have originated the plan for making the statue living in New York, but no application was made to either for his consent to the making of the statue and neither of them ever authorized any one to make it. Subsequent to the deaths of the husband and brother of Mrs. Schuyler, and in May, 1891, the plaintiff first heard of the contemplated action -of the defendants, and he, in behalf of himself and also of the •other relatives of Mrs. Schuyler, requested the defendants to abandon the making of such statue and the circulation of subscription papers for the purpose of collecting money towards defraying the costs and expenses of procuring the statue. The defendants denied the right of plaintiff to prevent the making of the statue or to prevent the soliciting subscriptions throughout the country for that purpose, and they continued to circulate such subscription papers widely throughout the United States and they were printed in some of the New York city newspapers at the instance of the defendants.
    These acts, the court finds, have exposed thé name and the memory of Mrs. Mary M. Hamilton Schuyler to adverse comment and criticism of a nature peculiarly disagreeable to her relatives and have caused disagreeable notoriety for which they are in no way responsible ; that such comment has been made in the public prints and elsewhere; that annoyance and pain have been caused thereby to the plaintiff and to the immediate relatives of Mrs. Schuyler; that he and they have been greatly distressed and injured thereby and by the notoriety incident thereto ; and that ■such notoriety and adverse comment and criticism are wholly due to the unauthorized acts of the defendants. As conclusions •of law it was found that the acts of defendants constituted an unlawful interference with the right of privacy, and that the surviving relatives of the deceased Mary Schuyler were specially injured by the acts.
    It was, therefore, adjudged that the plaintiff was entitled to judgment perpetually enjoining the defendants from making or causing to be made a statue of Mrs. Schuyler in any form and from exhibiting any statue of her and for receiving subscriptions for the purposes stated.
    Upon the trial evidence was given upon the part of the defendants which showed that Mrs. Schuyler in her lifetime was a very charitable woman ; was a member of many private charitable associations ; that in 1852 she was one of the founders of the School of Design for Women in the city of New York and one of its managers until it was adopted by the Cooper Institute; that ■ some of the female defendants were members of the School of Design for Women and had frequently met Mrs. Schuyler at its meetings and were on terms of some intimacy with her so far at least as her interest in and her attendance at the meetings of the above association called for; that the “ Ladies Art Association was founded about 1867, partly at the suggestion of Mrs. Schuyler made to some of the defendants who were members of the School of Design for Women, the object of the association being to help ladies support themselves and to give them adequate education in art and design, and the association is a reputable and well-known organization in New York city, and Mrs. Schuyler evinced considerable interest in it during her life; that the Woman’s Memorial Fund Association” was composed largely of members of the “Ladies’ Art Association,” and it was publicly announced that the statue in question was to be placed after the exposition in the rooms or studio of the association, there to remain permanently ; that Mrs. Schuyler was prominently identified with the TJ. S. Sanitary Commission during the late war; and also that she was one of the vice-regents for the state of New York of theMt. Vernon Association which was organized for the purpose of securing the preservation of the home of Washington. These several facts were proved and were uncontradicted, and the defendants requested the court to find them, which request was refused on the ground that they were immaterial.

      Charles M. Demond & Walter S. Logan, for app’lts; James BL Ludlow & Augustus H. Hand, for resp’ts.

      Reversing 54 St. Rep. 936.

   Peckham, J.

This action is of a nature somewhat unusual and depends for its support upon an application of certain principles which are themselves not very clearly defined or their boundaries very well recognized or plainly laid down. Briefly described the action is found upon an alleged violation of what is termed the right of privacy. The alleged violation of this right, so far as regards the plaintiff, consists of an attempt on the part of certain reputable women, among them the female defendants herein, without the sanction of the plaintiff or other immediate members of the family, to do honor to the memory of a woman who was the aunt of the plaintiff, and who, at the time of the commencement of this action, had been dead for fourteen years. . A statue, of a most costly and meritorious kind, to be made out of appropriate material and by an artist of the first rank, was contemplated as the means of doing this honor to the memory of the deceased relative of the plaintiff.

It may, perphaps, be somewhat difficult for the ordinary mind to perceive any reason for the plaintiff’s distress arising out of this contemplated action by women of respectability who are desirous of honoring the memory of a woman whom they regarded in life as a friend and benefactor of their sex. Objection has, however, been made to the carrying out of this project, and we must examine this record in order to see whether there is any evidence of a Violation of this alleged right of privacy belonging to the plaintiff. In order to determine whether there has been a violation of the right it is necessary to know something about the right itself and its proper limitations. It is not necessary, however, in the view which we take of this case, to attempt to lay down precise and accurate rules which shall apply to all cases touching upon this alleged right. If the facts in any case fail to furnish any clear or sure foundation for a reasonable man to claim that any injury to his feelings has been or would be caused by the action taken, or to be taken, by a defendant, then we can at least say in such a case where there has not been and cannot be any such real mental distress or injury as a court of equity ought to recognize as within judicial relief. For the purpose we have in view it is unnecessary to wholly deny the existence of the right of privacy to which the plaintiff appeals 'as the foundation of his cause of action. It may be admitted that courts have power in some cases to enjoin the doing of an act where the nature or character of the act itself is well calculated to wound the sensibilities of an individual, and where the doing of the act is wholly unjustifiable, and is, in legal contemplation, a wrong, even though the existence of no property, as that term is usually used, is involved in the subject.

The question in this case is whether there has been proved such a violation of the rights of the plaintiff, even under a most liberal construction as to the extent of those rights, which a court of equity ought to take cognizance of.

We enter upon this examination with an admission for the purposes of this case that the plaintiff occupies such a relationship to the deceased that he might maintain an action to enjoin the painting of a picture or the making of a statue of the deceased which would be regarded as inappropriate by reasonable people because the use for which it was destined or the place where it was to be kept was obviously improper, or because the thing itself, portrait or bust or statue, was not of that degree of merit, all the circumstances considered, which might reasonably and properly be insisted upon by those to whom the life and memory of the deceased were most dear. Many other cases can be imagined where the ulterior purpose of the individuals engaged in the matter would be so manifestly improper, if not illegal, that no statue or picture of a reputable individual, alive or dead, ought to be permitted to be made for such purpose. These are merely imaginary cases, alluded to only for the purpose of accentuating our ideas as to some of the circumstances in which courts might be called upon to act upon the part of a living relative of one who was long since dead. In the present case the grounds of the plaintiff’s objection are not very many, and have been stated in the complaint and by the plaintiff on the witness stand. They are these:

1. The persons concerned in getting up the proposed statue were not the friends of the plaintiff’s deceased aunt and, as plaint-' iff alleged, did not know her.

2. They were proceeding with their plan without consulting with the plaintiff or other immediate members of the Schuyler-Hamilton family and without their consent to the making of any statue.

8. The circulars issued by or in behalf of the defendants contained a statement that Mrs. Schuyler was the founder of or the first woman in the enterprise for securing the home of Washington, and tnat this statement was inaccurate because a prominent woman in South Carolina was in fact such founder and. justly entitled to the honor arising therefrom. This mistake, it was asserted, had caused adverse comment in the newspapers as to the attitude of the family of plaintiff in permitting such a claim to be made when they must have known it was without foundation.

4. It was disagreeable to the plaintiff because the making of such a statue would have been disagreeable and obnoxious to his aunt were she living. She had, as plaintiff said, a great dislike to have her name brought into public notoriety of any kind, as she was a singularly sensitive woman and of a very retiring nature, anxious to keep her name from the public prints or newspapers.

5. That plaintiff’s aunt had not been personally acquainted with Susan B. Anthony, and-he was quite sure she had not sympathized with or approved the position taken by Miss Anthony upon the question of the proper sphere of woman and her treatment by the law, and it was disagreeable and annoying to have the memory of Mrs. Schuyler joined with principles of which she did not approve.

These are substantially all the objections taken by plaintiff regarding the proposed action of the defendants. The plaintiff in his evidence said he did not claim that the defendants, in any of their actions or in any of their published notices, threw any discredit, disgrace or riducle upon Mrs. Scliulyer’s memory, and he did not think they wished to do so in any way. The chief reason for bringing this action, the plaintiff avowed, was to establish a principle that the right of privacy should be respected, and he was willing to bring such an action for the purpose of maintaining that principle.

After taking all these objections into careful consideration, we cannot say that we are in the least degree impressed with their force. The first ground of objection, even if well founded in fact, is not of the slightest importance. Whether the defendants were friends or not of Mrs. Schuyler in her lifetime does not seem to us to have any legitimate effect upon the question. If the motive were to do honor to a good woman, and if the work were to be done in an appropriate way, the relations towards the deceased of those who proposed to render this mark of honor to her memory as one of the benefactors of her sex, would be a matter of very small moment, entitled to no consideration whatever. No surviving relative, male or female, would have, in our judgment, the- least ground of complaint that an action, confessedly meant to do honor to the memory of a noble woman, was proposed by those who in her lifetime had not the honor of her personal acquaintance or friendship, but whose proposed action was nevertheless the outgrowth of admiration of her character as a friend and benefactor of the sex of which she was herself so great an ornament. It appears, however, that in truth some of the defendants were known to Mrs. Schuyler personally as members of the same association and interested in the same objects, and although Mrs. Schuyler was undoubtedly more socially prominent than any of the defendants claim to be, yet there was enough personal intercourse between her and some of the defendants to account for the affection in which her memory is held and for their desire to give some practical evidence of their feelings.

The second ground of objection we think is equally untenable. The fourth ground may properly be considered as a part of it. It is true that these defendants have assumed to take the preliminary steps leading to the making of the proposed statute without having consulted with or obtained the consent of the plaintiff or the other immediate relatives of the deceased. This may be regarded as the main objection, the others being but grounds for the refusal of any consent by plaintiff and his relatives, if such consent had been asked. The whole of the plaintiff’s claim of the right of privacy in this case rests upon the lack of this consent. It is stated that Mrs. Schuyler was not in any sense a public character during her life, and consequently had not surrendered to any extent whatever her own right of .privacy. This right, it is claimed, not having been surrendered by any act of the deceased in her lifetime, descends unimpaired to her immediate relatives as the proper representatives of her feelings and her rights. Whatever the rights of a relative may be, they are not in such a case as this, rights which once belonged to the deceased, and which a relative can enforce in her behalf and in a mere representative capacity, as, for instance, an executor or administrator, in regard to the assets of a deceased. It is not a question of what right of privacy Mrs. Schuyler had in her lifetime. The plaintiff does not represent that right. Whatever right of privacy Mrs. Schuyler had died with her. Death deprives us all of rights in the legal sense of that term, and, when Mrs. Schuyler died, her own individual right of privacy, whatever in may have been, expired at the same time. The right which survived (however extensive or limited) was a right pertaining to the living only. It is the right of privacy of the living which it is sought to enforce here. That right may, in some cases, be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living and not that of the dead which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased.

A woman like Mrs. Schuyler may very well in her lifetime have been most strongly averse to any public notice, even if it were of a most flattering nature, regarding her own works or position. She may have been (and the evidence tends most strongly to show that she was) of so modest and retiring a nature that any publicity, during her life, would have been to her most extremely disagreeable and obonoxious. All these feelings died with her. It is wholly incredible that any individual could dwell with feelings of distress or anquish upon the thought that, after his death, those whose welfare he had toiled for in life would inaugurate a project to erect a statue in token of their appreciation of his efforts and in honor of his memory. This applies as well to the most refined and retiring woman as to a public man. It is, therefore, impossible to credit the existence of any real mental injury or distress to a surviving relative grounded upon the idea that the action proposed in honor of his ancestor would have been disagreeable to that ancestor during his life.

We cannot assent to the proposition that one situated as the plaintiff in this case can properly enjoin such action as the defendants propose on the ground that as mere matter of fact his feelings would be thereby injured. We hold that in this class of cases there must in addition be some reasonable and plausible ground for the existence of this mental distress and injury. It must not be the creation of mere caprice nor of pure fancy, nor the result of a supersensitive and morbid mental organization, dwelling with undue emphasis upon the exclusive and sacred character of this right of privacy. Such a class of mind might regard the right as interfered with and violated by the least reference even of a complimentary nature to some illustrious ancestor without first seeking for and obtaining the consent of his descendants. Feelings that are thus easily and unnaturally injured and distressed under such circumstances are much too sensitive to be recognized by any purely earthly tribunal. A proposed act which a court will enjoin because it would be a violation of a legal right, must, among other conditions, be, of such a nature as a reasonable man can see might and probably would cause mental distress and injury to any one possessed of ordinary feeling and intelligence, situated in like circumstances as the complainant, and this question must always to some extent be one of law.

If the circumstances be such that it is to a court inconceivable that the feelings of any sane and reasonable person could be injured by the proposed act, then it is the duty of the court to say so and to refuse an injunction which would prevent its performance.

If. the defendants had projected such a work in the lifetime of Mrs.- Schuyler, it would perhaps have been a violation of her individual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such action by any one so long as it was in opposition to her wishes. The fact that Mrs. Schuyler is dead alters the case, and the plaintiff and other relatives must show some right of their own violated, and that proof is hot made by evidence that the proposed action of the defendant would have caused Mrs. Schuyler pain if she were living. A shy, sensitive, retiring woman might naturally be extremely reluctant to have her praises sounded, or even appropriate honors accorded her while living, and the same woman might, upon good grounds, believe with entire complacency and satisfaction after her death a proposition would be made and carried out by her admirers to do honor to her memory by the erection of a statute or some other memorial.

For these reasons we are of the opinion that regarding the facts thus far discussed, it was not necessary for the defendants to procure the consent of the plaintiff or other immediate relatives of the deceased. We think that so long as the real and honest purpose is to do honor to the memory of one who is deceased, and such purpose is to be carried out in an appropriate and orderly manner, by reputable individuals and for worthy ends, the consent of the descendants of such deceased person is not necessary, and they have no right to prevent, for their own personal gratification, any action of the nature described.

The third ground of objection is based upon a claim made in the circulars issued by defendants that Mrs. Schuyler was the founder,of the Mt. Vernon Association, while in truth she was connected with it only as a vice-regent from this state. There is no assertion that this error of-fact was intentional, and there could obviously be no motive on the part of the defendants to make any undue or ill-founded claim on behalf of their subject. A single line calling their attention to, the fact would undoubtedly have caused an immediate rectification of the mistake, and of course the removal of any foundation for the slighest adverse comment from any source as to the conduct of the surviving members of this family in permitting such a claim to have been made on behalf .of one of its deceased members.

This mistaken statement of the position of Mrs. Schuyler in regard to the Mt. Vernon Association contained in the circulars is the only ground for adverse comment in the newspapers, or for the disagreeble notoriety complained of by the plaintiff. If corrected all ground of complaint of that nature would disappear. If not corrected upon application, the plaintiff would probably not •be without a remedy which would prevent the circulation of such an untruth.

The fourth ground of objection has already been disposed of in treating of the second. The feelings of the deceased, if she were alive and confronted with such a proposition to do honor to herself, have no place in this action, which is founded upon the alleged violation of the plaintiff's own right of privacy.

The fifth ground is an equally vague and shadowy one. Whether Mrs. Schuyler sympathized with the work, or the views of Miss Anthony we must say seems to us utterly, foreign to the subject. There was no proposition looking towards the placing the statues of these two ladies together as representatives of the same ideas, or as in anyway, even the remotest, united in the same works, or in inculcating the same principles in regard to the rights of women. The objection seems to rest wholly upon the proposition that these two proposed statutes were to be exhibited in the same room of a building in the Chicago fair grounds—one as the representative of a class of women philanthropists and the other as the representative of a class of women reformers. The placing of the statutes in the same room for exhibition by the same association does not in our view tend in the slightest degree to confuse the identity of Mrs. Schuyler, or to lead in any way to the supposition that she was in sympathy with or believed in the correctness of the principles which have been advocated by Miss Anthony.

The fact, if it be a fact, that Mrs. Schuyler did not sympathize with what is termed the “ Woman’s Rights ” movement is of no importance here. The proposed placing of the two statutes would, if carried out, have no tendency to show that Mrs. Schuyler did so sympathize. Many of us may, and probably do, totally disagree with these advanced views of Miss Anthony in regard to the proper sphere of women, and yet it is impossible to deny to her the possession of many of the ennobling qualities which tend to the making of great lives. She has given the most unselfish devotion of a long life to what she has considered would tend most for the benefit and practical improvement of her sex, and she has thus, lived almost literally in the face of the whole world, and during that period there has never been a single shadow of any dark or ugly fact connected with her or her way of life to dim the lustre of her achievements and of her efforts. Although we may utterly fail to sympathize with these efforts or achievements, it is plain enough that no one willliave reasonable ground for objection to the placing of a bust of his or her own ancestor in the same room with the bust of such a woman and under such circumstances as were originally contemplated by these defendants. This ground of objection, however, time has itself rendered valueless.

One other ground has been argued before us upon which to sustain this injunction. It was urged that the proposed statue would be a fraud upon the public because there was no portrait, likeness or statue of Mrs. Schuyler accessible to defendants from which any possible likeness of the deceased could be secured. The idea of an actual likeness was early abandoned, and it was stated that the statue would be an idea! one and not a likeness. The court below has not found any fraud and we are not of the opinion that any was shown.

While not assuming to decide what this right of privacy is in all cases, we are quite clear that such right would not be violated by the proposed action of the defendants. The plaintiff’s cause of action is, we think, wholly fanciful. The defendants’ contemplated action is not such as might be regarded by reasonable and healthy minds as in the slightest degree distressing or tending in the least to any injury to those feeling of respect and tenderness for the memory of the dead which most of us possess, and which ought to be considered as a proper subject of recognition and protection by civilized courts.

It is, perhaps, needless, yet we will add that our decision furnishes, as we think, not the slightest occasion for the belief that under it the feelings of relatives or friends may be outraged or the memory of a deceased person degraded with impunity by any person who may thus desire to affect the living. The rights of such persons will remain the same after as they were before our present decision and will be wholly unaffected by it. We simply say that in this case the defendants have proposed to do nothing which ought to affect unpleasantly the mental condition of any sound, reasonable and intelligent man or woman, and, therefore, an injunction ought to have been refused.

We have looked at the question of the appealability of the judgment, and are of the opinion that the court lias jurisdiction. Nor do we think that the question is now merely an abstract one because of the fact that it was,the intention of the defendants in causing the statue to be made to place the same on exhibition in one of'the buildings at the Chicago exposition, now past and gone. That was only one of the purposes of the defendants. They intended to retain the statue after the exhibition' and bring it back to New York and place it in the studio of the Ladies’ Art Association, a place which so far as the evidence shows is appropriate for the purpose. This intention is not illegal and might be properly carried out but for this inj unction.

Upon the whole we are of the opinion that the plaintiff has made a mistake in his choice-of this case as an appropriate one in which to ask for the enforcement of the right of privacy.

The judgment must be reversed as to the parties appealing and the complaint dismissed as to them, with costs.

Gray, J.

(dissenting).—I must emphatically dissent from the decision of this court that there was no ground shown in this case for the equitable relief which was granted below. That a precisely analogous case may not have arisen heretofore, in which the peculiar power of a court of equity to grant relief by way of injunction has been exercised, furnishes no reason against the assumption of jurisdiction. This equitable jurisdiction of the court is determined by the particular circumstances of each particular case and depends upon the existence of a state of facts which demonstrates a wrongful act performed, or threatened to be performed, to the prejudice of some right of property and for which there is no adequate remedy at law.

Upon the findings in this case, I think we are bound to say that the purpose of the defendants was to commit an act which was an unauthorized invasion of the plaintiff’s right to the preservation of the name and memory of Mrs. Schuyler intact from public comment and criticism. As the representative of all her immediate living relatives, it was competent for him to maintain an action to preserve them from becoming public property; as would be the case if a statue were erected by strangers, for public exhibition under such classification, with respect to the characteristic virtues of the deceased, as they judged befitting. I cannot see why the right of privacy is not a form of property, as much as is the right of complete immunity of one’s person. If it is a property right with reference to the publication of a catalogue of pri- . vote etchings and entitled to be protected against invasion, as Lord Cottehham held in Prince Albert v. Strange, 1 Macn. & G. 25, 47, why is it not such with reference to name and reputation? We have some illustrations of the exercises by courts of equity of their peculiar powers in cases which have been cited, in principle not unlike this; where the publication of one’s letters and the sales of photographic portraits have been enjoined, besides the case of the publication of the catalogue referred to. See Gee v. Pritchard, 2 Swanst, 402 ; Prince Albert v. Strange, 2 De G. & Sm. 652; Pollard v. Photog. Co., L. R., 40 Ch. D. 345, and Woolsey v. Judd, 4 Duer, 379. These decisions are authority for the doctrine that equity will interfere to prevent what are deemed to be violations of personal legal rights and the only limitation upon the application is that the legal right which is to be protected shall be one cognizable as property. It seems to me clear that the jurisdiction of equity is not made to depend upon the existence of corporeal property and that it is exercised whenever the complainant establishes his claim to the possession of exclusive personal rights and their violation in definite ways; for which an action at law cannot afford plain and adequate redress. This is the case here. The defendants were a voluntary, unincorporated association; whose object was to erect a statue of Mrs. Schuyler as the “ typical philanthropist,” and subscriptions were solicited from the public to create a fund for that purpose. It was found by the trial court that the acts of the defendants “ have exposed the name and the memory of Mrs. Schuyler to adverse comment and public criticism of a nature peculiarly disagreeable to her relatives, and have caused disagreeable notoriety, for which they are no way responsible.” It was found that “annoyance and pain have been caused thereby to the plaintiff and to the immediate relatives of Mrs. Schuyler,” to their great distress and injury, by the notoriety incident thereto.

However opinions may differ with respect to the substantial nature of the injury to the feelings of Mrs. Schuyler’s relatives, we have the finding that it was in fact caused, and we should not say that it was merely fanciful. The theory of the case, which calls for equitable relief, is not that of a mere protection to wounded feelings; but the protection of a right which those who represent the deceased have to her name and memory as a family heritage and which had not become the public property. Why is that not a legal and an exclusive interest and why are its possessors not entitled to be protected by the law from a notoriety which invites public criticism of the memory and reputation of the deceased relatives ? And if it be true that there is no known application at common law of the principle, does not that natural justice with which equity is synonymous require that equity supply the deficiency, or enlarge the operation of legal principles, and grant the shelter of the law to the name and memory of the deceased, at the instance of her relatives ?

The evidence does not establish that Mrs. Schuyler was a public character, nor that she was in such public station, or so prominent in public works, as to make her name and memory public property. That she was engaged, throughout her life, in acts of benevolence and beneficence, may be perféctly true; but she was never a public character and in no just sense can it be said that, because of what she chose to do in the private walks of life, she •dedicated her memory to the state or nation as public property. To hold that, by reason of her constant and avowed interest in philanthropical works, unconnected with public station, the right accrued to an association of individuals, strangers to her blood, to •erect a statue of her, typifying a human virtue, through contributions solicited from the general public, is, in my judgment, to assert a proposition at war with the moral sense and I believe it to be in violation of the sacred right of privacy; whose mantle should cover not only the person of the individual, but every personal interest which he possesses and is entitled to regard as private, when through no act of his, nor by any peculiar circumstances, has the public acquired any right in them. Unless equity does interfere, the right of privacy will be lost and that will become the property of the public, which, our sentiments-and reason and our sense of justice tell us, is the private property of the relatives of the deceased person. That the plaintiff is entitled, if any one is, to a remedy, has been heretofore mentioned and it is the finding of the trial court, and that that remedy may be preventive in its character seems to "me to be within the reason and principle upon which equity proceeds.

It is not necessary that the proposed statue of Mrs. Schuyler should be libelous in character. The wrong consists not in that fact, but in the unauthorized acts of the defendants, which will invite adverse comment and public criticism upon the life and character of the deceased, bring her name and memory into more or less unenviable notoriety and inflict upon her immediate relatives and representatives more or less injury in their feelings and their desires for that privacy, which, in their private station of life, they have the right to enjoy.

The threatened offense is of a permanent and continuing nature and, in many senses, differs from cases of mere libelous publications. I think that a case was made out where equity was unfettered in its exercise by any legal principle and where the decree of the court below should be affirmed.

All concur with -Peckham, J., for reversal, except Gray, J., who reads for affirmance.

Judgment reversed.


author: Gray, J.

text:
    Elizur V. Foote, Resp’t, v. The Metropolitan Elevated Railroad Company et al., App’lts.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Basements—Abandonment—Elevated railway.
    The right of a land owner in an easement in an adjacent city street may be destroyed by his abandonment of it, and the question whether there has been an abandonment, is one of intention depending upon the facts of the particular case.
    2. Same.
    To work an extinguishment at law, the acts of the party, entitled to claim the servitude or the easement, must be accompanied by the intention to extinguish, and be followed by action upon it on the part of the party claiming adversely. It must be a joint intent of all the parties interested to get rid of the easement.
    3. Same.
    Such intention is not to he inferred from the fact of the owner’s bringing an action at law against the elevated railway to recover temporary accrued damages for the unlawful invasion of his rights, followed by an agreement with a proposed grantee of his abutting property, whereby all claims, arisen or to accrue by reason of sucli elevated road, are reserved. Nor will a declaration of such intention by the original owner upon settlement of such action, made subsequent to his transfer of such abutting premises and their conveyance to a third person by his grantee, retroact to the time of the commencement of his action and so complete the act of ex-tinguishment as of that date.
    4. Same—Subsequent grantee.
    The pendency of such action and the existence of such an agreement will not affect a subsequent grant of the abutting property to a third party by the original owner’s grantee before any lawful acquisition of the easements by the railroad company. Such easements are appurtenant to the abutting property, incapable of being separated therefrom and pass upon a sale thereof to the purchaser with the right to any invasion thereof. The purchaser, in such case, is invested solely with the right of asking for an injunction to restrain the operation of the road and to reo .ver compensation for the easements. If the company thereafter makes a settlement with, and payment to, the original owner for the easements, it does so at its peril.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a final judgment in favor of plaintiff entered upon a report of referees pursuant to an interlocutory judgment of special term which, among other provisions, directed a reference of the question of mesne damages.
    This action was brought to restrain the operation and maintenance of defendant’s elevated railroad in front of plaintiff’s premises, and to recover the damages caused thereby.

      Brainard dalles, for app’lts; Leo G. Dessar, for resp’t.

      Affirming 64 St. Rep. 872.

   Gray, J.

The plaintiff, owning property abutting on West. 53d street, in the city of New York, recovered an interlocutory judgment again t the defendants; which enjoined them from maintaining and operating their elevated railway in front of his premises, unless they acquired title to the street easements by condemnation proceedings. In proceedings following the decree, the mesne and fee damages were ascertained, and, upon this appeal from the interlocutory and final judgments in the action, the defendants make the point that there had been an abandonment and an extinguishment of the easements in the street, upon which plaintiff’s property abutted, before the latter purchased the same.. This abandonment of easements appurtenant to the land they claim to have been effected, as the result of certain agreements entered into between prior owners of the land and of a settlement made of an action at law brought against the defendants by one of these owners. This is an important point; for if it is well founded in the facts a complete defense is made out. As they base this claim to an extinguishment of the easements upon an intention to abandon them, as evidenced by some antecedent transactions, which was so effectuated, though at a time subsequent to tljie plaintiff’s purchase, as to complete the act of extinguishment as of the earlier date, we must consider the facts somewhat carefully ; in order to see if they establish all thai is claimed for them and justify the legal conclusion contended for.

The rule being that the abandonment of such an easement may be established by the evidence of acts clearly indicating an in tentian to abandon the right, is this a case for the application of the rule? In White v. Man. R. Co., 139 N. Y. 19; 54 St. Rep. 409, upon which the defendants rely, the question was as to the effect of an unconditioned consent to the building of the elevated railroad, given by owners of land bounded on the street, and upon which the defendants had acted, by proceeding to construct their road, and we held that it must be regarded as an abandonment pro tanto of the easements in the street. The decision in that case, as in the case of Snell v. Levitt, 110 N. Y. 595 ; 18 St. Rep. 611, was in accord with a settled doctrine of the law that the land owner’s right in an easement may be destroyed by his abandonment of it and that whether there has been an abandonment is a question of intention depending upon the facts of the particular case. See 2 Washburn on Real Property, *83; Washburn on Easements, *661, and Corning v. Gould, 16 Wend. 531.

The peculiar features in the White and Snell cases, which have been referred to, were, in the one, an express authorization to build the elevated railroad and, in the other, an express relinquishment of an easement to conduct water; upon both of which agreements the parties favorably affected thereby had acted. We will not find in the facts of this case much resemblance to the features of either of the other cases, Lathrop, one of the predecessors in title of the plaintiff, commenced an action at law against the defendants to recover from them $10,000 damages for the loss of rents and the injury to the value of his premises, occasioned by their trespass upon his property rights in the street. Subsequently, having contracted to sell the property affected to Gillie and Walker, they united in executing an agreement; wherein it was “mutually agreed between the parties that all right and claim and ■demand heretofore accrued or arisen, or which may hereafter arise -or accrue, to either of the parties to this agreement against any and every corporations and corporation, person and persons, for or by reason of the erection and building and maintaining of the elevated railroad, * * * shall belong to and are hereby retained by and reversed and granted to William G. Lathrop, Jr., and his legal representatives and assigns, and are hereby excluded and excepted from any and every grant and conveyance of said premises, or any part thereof, witli full liberty and power and authority to said Lathrop to sue for, collect, compromise, compound and receive to his own use, and release and discharge any and every such claim and demand now existing and accrued, or hereafter to arise and accrue, against any corporation or corporations, person or persons, for such elevated railroad and the using and running of the same.” Thereafter, and. as of the date when the deed of the premises was made, another agreement was executed at the foot of the other agreement, to the effect, that it was “excepted from the grant and conveyance of the land; * * * said grant being made subject to the conditions of the above agreement.” These agreements were not recorded ; nor did the deed mention them, or except any rights; but was in the usual form of a deed with full covenants and warranty, conveying with all the hereditaments and appurtenances, etc. A few months later, Gillie and Walker'deeded the premises to the plaintiff. More than three years after the plaintiff’s purchase, Lathrop settled with the defendants for a payment of $2,500; discontinued his action and delivered to the defendants a release from all claims by reason of the construction and operation of their railroad and which stated Lathrop’s “intention to release, etc., all such right, etc.,- in 53d street and the easements therein appurtenant to said premises, which, on the 11th day of December, 1884,” (the date of his deed to Gillie and Walker), “were in the possession and occupation ”' of these defendants.

This present action was commenced by the plaintiff at a still subsequent date. Upon these facts the defendants argue that the agreement of Lathrop with Gillie and Walker evidenced the intention to abandon the street easements as between them, and that the subsequent payment to Lathrop in settlement of his action retroacted to the time of its commencement and so completed “ the act of extinguishment as of that date.” This argument must, however, assume for the agreement a more conclusive effect than either its language admits or the law would concede to it, and it slights the-grant to this plaintiff and regards him as a purchaser chargeable with knowledge of facts outside the record title, which bound him as to transactions to which he was not a party. Considering, in the first place, Lathrop’s action, we find it to be one of law, for the recovery of damages from the defendants for their unlawful invasion, of his rights of easement in the street and in such an action the recovery is confined to such temporary damages as have accrued to the commencement of the action; a rule which was carefully reviewed and re-asserted in Pond v. Met. E. R. Co., 112 N. Y. 86; 20 St. Rep. 479. In that case, it was said by the present chief judge that “ a recovery of judgment for damages for a trespass or the invasion of an easement does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement.” In contemplation of the law, Lathrop’s action was the assertion of a claim for the damages theretofore suffered and future actions were maintainable to recover subsequent damages for the continued trespass until it ceased, or was converted into a rightful occupation, through compensation as the result of condemnation proceedings, or through payment of the value of the easements when ascertained and fixed by the court in its decree. What then was the effect of the agreement between Lathrop and Gillie and Walker, except to reserve to him his rights and claims for the damages theretofore sustained through the defendants’ trespass and, in addition, those,which might be further recovered by his grantees, Gillie and Walker, for the continuing trespass during their ownership ? Clearly nothing more. Having asserted his claims in his action, the agreement had obvious and only reference to such; with the added right to receive such further damages as Gillie and Walker, when owners, might be entitled to recover. It may possibly be that, as between'Lathrop and his grantees, Gillie and Walker, if, as the result of some action or proceeding, the defendants had acquired the right to occupy the street, through the payment of compensation for the property rights therein of Gillie and Walker, the moneys would be deemed in equity to have been received for Lathrop. But that, if 'true, merely goes to the effect of their particular contractual relations. The contract was neither one which affected the land, nor one which charged a subsequent grantee of the land with notice of any rights of the defendants gained therein. It is not really disputed that the agreement was ineffectual to reserve the easements in the street. They were appurtenant to the abutting property; were incapable of being separated therefrom, and passed upon a sale thereof to the purchaser with the right to any remedy for any invasion thereof. Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559 ; 41 St. Rep. 110 ; Pegram v. Same, 147 N. Y. 135 ; 69 St. Rep. 397. When Lathrop conveyed to Gillie and Walker, these easements appurtenant to the land passed with the grant, undiminished by their contemporaneous agreement; the operation of which, as before suggested, was to affect the ownership of Gillie and. Walker with a possible equity in favor of Lathrop, as to any claim they might have against the defendants by reason of their appropriation of the appurtenant easements. Although they were their property by force of the grant of the land to which appurtenant, doubtless, their grantor, under the collateral agreement might have required them to account to him for moneys received from the defendants as compensation for their occupation of the street. But nothing of the kind occurred and when, in turn, Gillie and Walker conveyed the land to this plaintiff, the grant passed with it the appurtenant street easements. The pending action of Lathrop and the agreements of the preceding owners had no effect upon the grant and none upon the grantee. We had occasion, quite lately, in the Pegram case to consider the effect' of a reservation in a conveyance, made pending a similar action to this, which was brought by the grantor to restrain the operation of the defendants’ road. The reservation in the grant there was of such a nature that were the easements iri question capable in law of assignment, it would have been effectual for that purpose. But the claim of the plaintiff in that case to be entitled, by virtue of the reservation in the grant, to the equitable relief demanded and the damages occasioned since date of his conveyance of the property, was denied. We there regarded the person, who was the owner of the abutting property, as having the sole right to the street easements and, hence, was solely injured by their unlawful appropriation and was solely invested with the right to ask that the defendants’ acts be restrained and that they be compelled to make compensation to him for the taking of his property, as a condition of their right to be there.

What was there to affect this plaintiff’s ownership in the land and its appurtenant street easements, or to prevent him from bringing this action? He was not a party to any of the antecedent transactions between his predecessors in the title. Nothing of record gave him notice of such an agreement. Upon what inquiry was he put when he purchased the property? The presence of the elevated railroad in the street was not notice of anything to him. It was a trespasser, for whose unlawful acts the law afforded remedies available to the abutting owner. Suppose he had inquired of his grantors and had learned of their-agreement with Lathrop, or of Lathrop’s suit for damages, would he then have been chargeable with notice of anything which would preclude him from proceeding against the defendants as trespassers upon his easements? Certainly not; for he would have learned of nothing which bound him, or which diminished his property rights under the grant to him. There had been no extinguishment of the easements. They existed and would exist, until properly appropriated and compensation made. The defendants had not acquired them, nor had they been abandoned. Lathrop’s action was incompetent for any purpose, except to recover any temporary damages sustained by him. It is impossible to say that Lalhrop’s acts, when owner, indicated a clear intention to give up his street easements. We may assume that he would have consented to do so, if compensation was made; but that important condition was not met by the defendants’ assent. The proper application of the rule would be, to work an extinguishment at law, that the acts of the party entitled to claim the servitude, or the easement, must be accompanied by the intention to ■extinguish and be followed by action upon it on the part of the party claiming adversely. “ The latter must close with the intent. It must be a joint intent of all the parties interested to get rid of the easement. Corning v. Gould, 16 Wend. 530, 538.

I think it quite needless to continue the discussion of the subject. I think the plaintiff was under no obligation to look beyond the records for anything affecting his title to the land he was about to purchase. As matter of fact, the defendants were trespassers, with no right as yet to occupy the easements of the abutting owner. The argument that Lathrop’s demand in the action, however irrevocable, was equivalent to an election to abandon the easements does riot commend itself. At most, it could be regarded as amounting to a conditional declaration of an intention to abandon. That would be sufficient, (2 Washb. Real Prop. 341), and it cannot be said that the defendants had seasonably acted upon it. Moreover, the importance of discovering from the circumstances the intention of the person, who is claimed to have abandoned his rights, is in explaining and determining the significance of the act. Unless the intention accompany the act, its value, if the rights of others intervene, is at once affected. Here, the attempted relinquishment of the easements appurtenant to the property by Lathrop was years after they had ceased to be his and when they had become the property of the plaintiff. The defendants were bound to know that they had passed to this plaintiff and they settled with Lathrop at their peril; if, in truth they did suppose that he could release these property rights to them. The terms, in which the release was couched, leave a not indistinct impression upon the mind that it was obtained and accorded for what it might be worth. Lathrop was in no position to release the easements, as of any time, and as against the then owner of the land his act was of no force. The only value of the release was as'a settlement with Lathrop for damages sustained by him during his ownership.

I think the judgment below was right and that it should be affirmed, with costs.

All concur (Beckham and O’Brien, JJ., in result).

Judgment affirmed.