text:
    Nellie M. Spaulding, Resp’t, v. Leonard Fierle et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Yendoe and purchaser — Specific performance. An agreement to purchase land made, at a time of activity in the real-estate market, for the purpose of. reselling at a profit, will not be enforced against the purchaser after the time specified for performance and after such activity in the market has subsided.
    Appeal from a judgent in favor of plaintiff.

      George G. Miller, for app’lts ; Lewis N. Spaulding, for resp’t.
   Lewis, J.

On the 24th of December, 1892, an agreement in writing was made by the terms of which the defendants agreed to sell and convey to the plaintiff by warranty deed a piece of land of about ten acres, situate in the town of Hamburg, Erie county, for the consideration of $3,500. The plaintiff paid at the time of the execution of the contract $490, and agreed to pay, six months from the date thereof, the further sum of $1,000, and secure the balance of the purchase price by her bond and mortgage on the premises as security for the payment thereof. The defendants were, upon the performance of the agreement by the plaintiff, to convey to her the said premises, and to furnish to plaintiff, within ten days from the date of the agreement, full tax and title searches, showing a marketable title in the defendants, each party to pay one-half of the cost thereof. Plaintiff’s husband was a lawyer, and resided in the city of Buffalo, and by an arrangement with the defendants he was to look after the ordering of searches. The defendants had theretofore purchased a piece of land in the town of Hamburg, and, as they supposed, entered into possession of the land thus, bought, which they supposed was the land they agreed to convey to the plaintiff. But when the title search came to be made it was disclosed that the land they contracted- to sell to plaintiff was not described in their title deed, but another piece of land in the same town by mistake had been conveyed to them. The defendants at once set about to correct the error and obtain a deed of the land which they had purchased. The grantor was at the time in Europe, and seriously ill, and died without executing a deed to correct the error mentioned. The defendants finally obtained title to the land they had contracted to sell plaintiff from their grantor’s executor, but not until the 4t.h or 5th of August, 1893, more than a month after the time they had agreed to convey to plaintiff. Defendants never furnished the tax or tax-title search. After the time fixed in the contract for the conveyance of the property to the plaintiff, and before the defendants were in a situation to convey the property, the plaintiff gave notice that she elected to cancel the contract, and demanded the return of the $490 which she paid at the time of making the contract. The defendants refused to pay, and this action was brought.

At the time the contract was made, there was an active boom in real estate in the vicinity of and including the land contracted to be sold to the plaintiff Speculators had purchased large quantities of land in the immediate vicinity of the land in question, and.it was rumored that there was about to be established near this land a factory for the manufacture of Gatling guns, and the market value of lands in that neighborhood had very largely increased. The marketable value of land remained high until the early part of the summer of 1893, when prices suddenly collapsed and receded to their normal state as farming lands. The plaintiff purchased the land for speculative purposes. She was anxious while the boom continued to obtain title, but when the collapse came she did not wish the land, but wanted the $490 she had paid to the defendants. The defendants had contracted to sell to the plaintiff land which they at the time had no title to, and were not, therefore, in a situation to perform their agreement. This was not through any fault of theirs, but was their misfortune. The plaintiff having purchased the land to sell again, and having, as her husband testified, lost an opportunity to sell it because of the defect in defendants’ title, it must, we think, be held that time was of the essence of the contract, and that the plaintiff was not bound to take title in the month of August, more than a month after the time fixed by the contract for the delivery of the deed. Bank v. Thomson, 55 N. Y. 7; Schmidt v. Reed, 132 id. 116; 43 St. Rep. 490. Had the title search when furnished shown good title in the defendants, the plaintiff might have been in a situation to dispose of the property, even before the time fixed for the delivery of the deed had arrived. Notwithstanding the contract provided that the plaintiff should pay the further sum of $1,000 six months from the date of the contract, and secure the balance by her bond and mortgage as a condition of the conveyance of the property to her, the defendants concededly were not in a condition to give her title, and she was not required to go through the useless ceremony of making a tender. The evidence was sufficient to justify the conclusions of the trial court that time was of the essence of the contract^ and that the defendants were in default in not furnishing and delivering searches and deeds of the property, and therefore the plaintiff was entitled to recover the money she paid at the time of the making of the contract.

The judgment appealed from should be affirmed.

All concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Killean Martin, App’lt, v. Rochester German Insurance Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Insurance — Fire—-Occcupanct.
    Where a policy of fire insurance, which covers a certain house and farming utensils, provides that it should become void if the “building herein described be or become vacant or unoccupied, and so remain for ten days,” the condition of the policy as to occupancy is not complied with by placing the farming utensils in the house after the removal of the tenant therefrom.
    Appeal from a judgment entered on a verdict in favor of plaintiff for part of the relief asked, and from an order denying a motion for a new trial.

      John E. Robson, for appl’t; George F. Youman, for resp’t.
   Lewis, J.

The cause of action, as stated in the complaint, is that the defendant, in and by the terms of an insurance policy, in consideration of premium paid by the plaintiff, contracted and agreed with the plaintiff, among other things, that in case a certain house owned by plaintiff should be occupied by plaintiff or by a tenant during the three years next following the 9th day of April, 1892, and at any time during said period should be destroyed by fire, without fault or negligence of the plaintiff, and in case certain farming implements should be so destroyed, then defendant would pay to plaintiff the amount of his loss occasioned by said fire, not exceeding the sum of $400, upon the said dwelling house; and that the house so insured and occupied was destroyed by fire, to the damage of the plaintiff, etc.

The allegations of the complaint as to the insurance and the conditions thereof were not denied by the answer, and hence, for the purposes of the trial, must be considered to be the established facts. Code Civ. Proc. § 522: Potter v. Smith, 70 N. Y. 299.

At the time the policy was issued, the dwelling house was occupied by a tenant of the plaintiff. He remained therein until the 5th day of April, 1893, when he moved his family out, with the principal part of his furniture; leaving, however, a few articles of furniture in the house. The plaintiff thereupon put into the house some farming implements, which remained therein down to the time of the fire, which occurred on the 1st day of March, 1894. This was the only manner in which the house was occupied from the time the tenant left, as stated, down to the time of the fire. The plaintiff had a verdict for-dollars, for his loss on farming implements. The trial court held that the house was. “ unoccupied,” within the meaning of the policy, after the same was vacated by the tenant The policy was read in evidence, and, from it, it appeared that a portion of the property insured was a faaine dwelling house, described as a “ building situated in the town of. Rush, county of Monroe, state of New York, and occupied by tenant, and insured.” The policy further provided as follows:

“This entire policy, unless otherwise provided'by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.”

It is the contention of the appellant’s counsel that the conditions of the policy as to occupancy were complied with by the placing of the farming implements in the dwelling house after the removal of the tenant. We do not so construe the policy. The house was “ unoccupied,” within the meaning of the policy, after the tenant removed therefrom. Barry v. Insurance Co., 35. Hun, 601; Herman v. Insurance Co., 85 N. Y. 162; Halpin v. Phenix Insurance Co., 118 id. 165; 28 St. Rep. 788; Halpin v. Insurance Co., 120 N. Y. 670.

The plaintiff sought to introduce paroi evidence to show that the agent effecting the insurance gave the construction contended for by the plaintiff to. the language of the policy; but, as heretofore stated, the plaintiff, in his complaint, put a different construction upon the policy, the same as that given to it - by the trial court. The language of the policy does not seem to us to be at all ambiguous. It was an occupancy by a family that was provided for, and, in case the plaintiff’s tenant vacated the premises, it was incumbent upon the plaintiff to see that it was occupied by another family. It is a matter of common knowledge that underwriters esteem a dwelling house not occupied as a residence to be more liable to destruction by fire than one thus occupied. Incendiarism is an important factor in insurance risks. The presence of a family in a house tends to protect it against the work of incendiaries. The presence of the plaintiff’s farming implements in the dwelling cannot be said to have in any manner protected it against fires.

The trial court properly held that the plaintiff was. not entitled to recover the loss on the dwelling house. That being the only question presented by this appeal, the judgment and ordér appealed from should be affirmed, with costs of this appeal to the respondent.

All concur.


text:
    Thomas H. Groves, App’lt, v. John L. Acker et al., Resp’ts.

      (Supreme Court, General Term, Fifth, Department,

      Filed April 12, 1895.)

    1. Trial — Request for verdict.
    Where both parties request the direction of a verdict, leave will not be granted to one of them to go to the jury, where he does not specify the questions of fact to be submitted.
    2. Contract — Corporations.
    A contract reciting that “ we, the undersigned officers of the ” association, agree to pay to the plaintiff, on withdrawal from the association, cash or a well-indorsed note, is a corporate, and not an individual, obligation. ‘
    Appeal from a judgment, entered on a verdict directed by the court in favor of defendants.

      David Hayes, for app’lt; John Desmond, for resp’ts.
   Lewis, J.

This action was brought to recover of the defendants moneys deposited by the plaintiff with the Brown Street & Jefferson Avenue Dime Permanent Savings & Loan Association, a domestic corporation, located in the city of Bochester. The amount claimed in the complaint was upward of $14,000, but the amount which the plaintiff upon the trial claimed to recover was the sum of $5,000. At the close of the evidence, plaintiff’s counsel asked for a direction of a verdict in his client’s favor for the sum of $5,000. His motion was denied, and he duly excepted. Defendants’ counsel then moved for the direction of a verdict for the defendants. This motion was granted, and the plaintiff duly excepted. Plaintiff’s counsel thereupon asked leave to withdraw his motion for a direction of a verdict, and to be permitted to go to the jury upon all the questions in the case. His motion was denied. He did not ask to have any specific questions of fact submitted to the jury. It was not, therefore, error to refuse his request. Mayor v. Dean, 115 N. Y. 556; 26 St. Rep. 375. The parties having requested the direction of a verdict in. their favor respectively, the questions of fact were for the consideration and decision of the court.

It was established by the evidence that the plaintiff had on deposit in a bank in the city of Bochester a considerable sum of money, which was drawing only four per cent, interest. The defendants, with others, were directors of the loan association mentioned. The defendant Spiess, being informed that the plaintiff had money in a bank, and that it was drawing but four per cent, interest, suggested to him that, if he would loan some money to the association, he would obtain a much larger rate of interest. He informed him that the association was paying to its subscribers some sixteén per cent, annually upon its shares, and that it would be- to his interest to withdhaw his money from the bank, and loan it to the association. By arrangement, the plaintiff met the directors of the association at a meeting held on the 3d day of January, 1888 ; and the plan of the business of the association was explained to the plaintiff by the directors. The plaintiff concluded to loan $5,000 to the association, and, thereupon, in the presence of the plainfiff, the following resolution was adopted by the board of directors :

“ On motion of John A. Spiess, it was agreed to accept the loan of $5,000 from Thomas H. Groves at four per cent, per annum until our next quarter. He shall, however, withdraw loan at any time in cash or association notes, not to exceed three mouths, with interest. At end of present quarter, if loan is not withdrawn, dividends shall be allowed as on ordinary stock.”

Plaintiff had informed the directors that he might desire to withdraw the money for use if he should engage in business. He paid into the association $5,025, and was given a passbook, such as is furnished subscribers to the shares of the association. It appears from an entry in his passbook, dated on the day the money was advanced, that the plaintiff had subscribed for 500 shares of the stock of the association. He was credited with having paid the $5,000, and the further sum of $25, that being the entrance fee on 500 share?, according to the regulations of the association. • The plaintiff having suggested, as stated, that he might desire to withdraw the money, there was written upon the last page of his pass-book an agreement upon which he relies to sustain his cause of action. The agreement was signed by the defendants, and delivered to the plaintiff, and is as follows:

“We, the undersigned, officers of The Brown Street and Jefferson Avenue Dime Permanent Savings & Loan Association, of Rochester, N. Y., hereby agree with Thomas H. Groves that we will pay him interest at the rate of four per cent, per annum on $5,000, paid by him into the treasury of said association, until the first day of March next, and also agree to pay him the cash on withdrawal or a well-indorsed note for not over three months, with use. , ■
“ Rochester, January 3, 1888.
“John L. Acker, President.
“ Frank Horn, Vice President.
“John P. Smith, Secretary.
“John A. Spiess, Treasurer.”

It is the contention of the plaintiff that this contract was the individual obligation of the defendants; that they had no authority to, and did not intend to, and did not in fact, execute,it as a corporate obligation; and that having called upon the society for his money, and it not being paid, he was entitled to recover of the defendant’s personally under this agreement.

The $5,000 was allowed by the plaintiff to remain with the association, without notice of withdrawal, until the year 1893. He made other deposits, with the association from time to time, aggregating $5,520. He was duly credited in his passbook with dividends on his shares, amounting in all to $8,740.48. No distinction was made in the entries in his passbook between these various deposits. At the close of the first quarter (March 1, 1889), the association paid to plaintiff $33.33. This was interest upon the $5,000, at the rate of four per cent, per annum. Letters from the plaintiff tó the association were read in evidence which tended to show that he understood that his dealings were with the association, and not with the defendants personally. The articles of association of the company provided that persons loaning money to the company might withdraw the same upon giving written notice of such intention. The plaintiff directed a notice to the secretary of the association on the 3d day of February, 1893, of his desire to withdraw the sum of $10,000, giving as a reason that he was about to open a store. He stated in the notice as follows:

“ My agreement with the association was that at any time I needed money, if the association did not have it, they would give me the association’s notes for two or three months, with interest, so I could use them at once. It is written in the back of my passbook, as you will remember,” etc.

At the time this notice was received, there were other applications for withdrawals on file. The articles of association provided that applications for withdrawals of money should be numbered and paid in the order in which they were received. The association neglected to respond at once to plaintiff’s call, and he commenced this action against the defendants.

The evidence fairly established that the plaintiff was aware when he loaned the money that the defendants were acting as the representatives of the association. There was no reason, so far as appears, why the defendant’s should assume any personal responsibility in the matter. They were directors and officers of the company, but they had no other interest in its affairs that was not common to all of the shareholders. In signing the instrument, the defendants affixed the title of their office to their signatures. There was no occasion for their so doing if they were to become personally liable. The resolution consenting to take the money is quite significant. Reading the resolution and the agreement together, it is quite apparent that the parties intended to provide that the plaintiff should be at liberty to withdraw his money at any time prior to the 1st of March following, without the formality of giving a written notice; but, if he permitted it to remain with the association thereafter, it was to be subject to the rules and regulations of the association as to the manner of its withdrawal. The only reasonable inference to be drawn from the evidence is that the plaintiff, in loaning his money and in receiving the contract, understood that he was dealing with the association, and that the defendants, in executing the contract, did so in their official capacity, without intending to be liable personally. The power to borrow money was given to the association by the statute under which it was organized. It could also obtain money by issuing shares of stock to its members, and receiving dues thereon. The following authorities sustain the construction given to this instrument .by the trial court. Mott v. Hicks, 1 Cow. 513; Babcock v. Beman, 11 N. Y. 200 ; Bank of Genesee v. Patchin Bank, 13 id. 309. 19 id. 312; Casco Nat. Bank v. Clark, 139 id. 307: 54 St. Rep. 590. The fact that the plaintiff was fully aware of the character in which the defendants assumed to act distinguishes, we think, this case from the authorities to which we are referred by the plaintiff’s counsel.

The judgment appealed from should be affirmed.

All concur.


author: Per Curiam.

text:
    Frederick W. Shrump, Resp’t, v. Walter E. Parfit, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February, 1895.)

    1. Arbitration and award — Vacation.
    Where the arbitrators keep within their jurisdiction, their award is unassailable, unless for corruption, fraud or like misconduct, and will not be set aside for errors of law or of fact on their part.
    2. Same.
    . A finding, not within the submission, will not vitiate the award, where - it is severable and may he rejected.
    Appeal from a judgment, entered on the award of arbitrators in favor of plaintiff and from an order denying a motion to vacate the award.

      Herman F. Koepke, for app’lt; Horatio C. King, for resp’t.
   Per Curiam.

Order affirmed, with costs, on opinion of Gay-nor, J.

The opinion of Mr. Justice Gayuor at the special term is'as follows: -

“ The defendant objects to the award upon the ground that the arbitrators exceeded their powers. If they did not exceed their powers, — in other words, if they kept within their jurisdiction,— their award is unassailable, unless for corruption, fraud or like misconduct, and will not be set aside for errors of law or of fact on their part. Fudickar v. Insurance Co., 62 N. Y. 392; Masury V. Whiton, 111 id. 679; 19 St. Rep. 141; Herbst v. Hagenaers. 137 N. Y. 290; 50 St. Rep. 687; Code Civ. Proc. § 2374. After rejecting the stones, the defendant-mutilated them by knocking off the corner or a piece of the molding of each with a hammer. In his capacity of architect he had the power, and it was his duty, to-reject stones unfit and not in accordance with the contract. It was submitted to the arbitrators by the arbitration agreement to determine (1) the number of stones rejected and injured with the hammer as above stated; (2) the value of each stone after rejection and before the injury ; (3) the damage done by reason of the said acts. The arbitrators have precisely determined 'these three things by their findings numbered 12, 13, 16, which correspond in' so many words to the proposition submitted. If they had made no other finding, ingenuity could suggest no objection to their award, within the narrow limits allowable. They have specifically found in addition, and unnecessarily, that the defendant had no right to arbitrarily reject stones; that he did not reject any by marking them with a pencil; that he did not notify 'the plaintiff of the rejection of the stones before breaking or mutilating them; that he arbitrarily mutilated them ; and substantially, that those he so mutilated were fit and therefore (by implication) arbitrarily rejected. I do not see, and cannot say, that these findings necessarily affected the result. They were irrelevant, and, so long as the award was within the jurisdiction of the arbitrators, are not to be regarded. The contention for the defendant is that the mere rejection of the stones, whether they were fit or unfit, made them useless, except to be broken up for rubble, for which use their value would be only $34.50, as is found; and that, as the chipping off of the corners or moldings could not affect their value for this use, the defendant did them no damage. The reason, it is said, why rejection would make them nearly valueless, is that, as they were fashioned for this particular church tower, they could be used for nothing else except rubble, as it is altogether improbable that any tower exactly like it will ever be built. The arbitrators, as we have seen, were made the judges of what the stones were worth after rejection and before being mutilated; and as it is plain that in determining such value, as they did in so many words, it mattered not whether they were rejected arbb trarily or in good faith, the finding that they were rejected arbitrarily, and the similar findings, are of no consequence The rejection is what affected their value by destroying their use, and not the good or bad faith with which they were rejected. Hence it cannot be assumed that the arbitrators found that they were worth more after being rejected arbitrarily than if they had been rejected in good faith. Some of the stones broken by the defendant were already laid, and by finding fifteen it is determined that the plaintiff was damaged $100, the cost of relaying other stones in their place. I do not see how this comes within the submission ; but, as it is severable, it may be rejected, letting the rest stand. 137 N. Y. 296; 50 St. Rep. 687, supra. The basis which the arbitrators had to take by the submission — for so it is therein set down — was that the stones were rejected before they were mutilated, and the only measure of damage allowed to them was the injury to the stone after rejection. The basis for the finding of $100 damage was that the stones were fit, and should not have been rejected, and their rejection damaged the plaintiff to the extent of relaying other stones in their place. In the same way it may be urged that the finding that all of the stones were fit affected the award of the arbitrators. But, as has been seen, it cannot be certainly said, if at all, that it affected their determination of the value of the stones after rejection and before being mutilated. That determination of value included the laid stones which were mutilated, and all, and was well made, and it was as far as they could go. But, leaving aside what has been said above, it would be sufficient to say that, if the language of the award enabled the court to say that the arbitrators considered the arbitrary rejection of the stones as increasing their value after rejection over what it would be if they had been properly rejected (a thing too absurd to be attributed to them, the stones being intrinsically of the same value in either case), it was, after all, only an error of law on their part, and, as has been seen, the court may not regard it. The award is also objected to on the ground that it is not definite and final, but no reason or particular therefor is assigned. The award is confirmed to the extent of $1,317.93.’’


text:
    Safety Electric Construction Company, App’lt, v. Henry Creamer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895).

    Accounting — When not granted.
    An accounting will not be granted, where the complaint shows that there is no amount owing from defendant to plaintiff except a certain fixed sum, beyond which nothing can, under any possible circumstances, be demanded.
    Appeal from a judgment dismissing the complaint.

      Gustavus W. Rawson, for app’lt; John A. Straley, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, on opinion of' special term.

The opinion of Mr. Justice Patterson, dismissing the complaint, is as follows:

This action was brought in the first instance for an accounting under a contract entered into between the parties, by which, among other things, the plaintiff was to pay the defendant, in addition to fixed guaranteed royalties payable weekly, a certain percentage of profits on articles to be manufactured by it under a license granted by the defendant, a patentee of an important invention used in connection with steam machinery. The contract provided that, in default of payment within a certain time after notice, the license should be forfeited. The original complaint alleges distinctly that all guaranteed royalties were paid up to a certain date, and that no profits were made, but that the defendant claimed profits had accrued ; that an inspection of plaintiff’s books had been offered ; that an examination of a long and complicated account would be necessary to ascertain whether any profits had arisen; that the defendant threatened to enforce the forfeiture, and the prayer for relief was for accounting, etc. An injunction was not asked for. A supplemental complaint (so-called) was served, and therein it was asked that it be judicially ascertained whether anything is due from the plaintiff to defendant, and, if it be found there is, that the plaintiff be allowed a reasonable time within which to pay it, and that upon such payment being made the defendant “be barred from all right to forfeit said contract, and from claiming or attempting to claim a forfeiture thereof for any matter ■ or thing done previous to the beginning of this action,” etc. To say the least, this is a very peculiar suit. Its basis is an asserted‘right to an accounting under a state of facts as presented by the plaintiff itself, conclusively showing that no accounting is necessary for any legitimate purpose in enforcing a right inhering in or belonging to it. The complaint sets forth distinctly an offer of payment of guarantied royalties (this offer not amounting indeed to an actual tender), and that it (the plaintiff) “ has made no profits whatever out of the said contract, and that it has lost many thousands of dollars thereunder.” The accounts were kept by the plaintiff; the defendant had nothing to do with them. The distinct averments of the complaint are that nothing was owing the defendant except guarantied royalties from a certain date. Why should the plaintiff have an accounting with the defendant when it owes him nothing, except a certain fixed sum, and nothing under any possible circumstances, according to its own statement, could be demanded beyond that sum? A suit to enjoin the defendant from enforcing the forfeiture or from molesting the plaintiff in its business of manufacturing and selling goods under the license, and after a due and formal tender made and kept good, of what was admitted to be due, might be proper, and, if the allegations of a complaint so framed were found to be true, the relief should be granted. As originally brought, it must be conceded that this action is not of that character. It was so held by the general term, on the appeal from the order maintaining the temporary injunction. 47 St. Rep. 214. Under prayer for relief in the supplemental complaint, the scope of the action is perhaps somewhat enlarged ; but, whether that be so or not, as this action is framed, if there is no right to an accounting, there is no right to any part of the specific relief sought. It could only be appropriate after an accounting as the complaint stands, and by the plaintiff’s own showing therein there is nothing to be accounted for. The complaint, therefore, must be dismissed, with costs.


author: Daly, C. J.

text:
    Tweedy, Pl’ff, v. United Life Insurance Association, Def't.

      (New York Common Pleas, Special Term,

      Filed February 27, 1895.)

    Trial — Note of issue.
    Where the plaintiff has waived the benefit of an order allowing a note of issue to be filed nunc pro tuna obtained without notice, by making a new motion on notice for leave to file the note of issue nunc pro tuna, a motion by defendant to strike the cause from the calendar will be granted.
    Motion to strike the cause from the calendar.

      DeLancey Nicoll, for pl’ff; Harry Wilber, for deft.
   Daly, C. J.

The court had power to relieve the plaintiff from the consequences of his mistake in filing the note of issue for November, 1893, in the wrong office, by ordering it to be filed nunc fro tune in the office of the cleric of this court, and thus supply his omission to place the cause upon the calendar for same term for which it had been noticed for trial. Code, § 724. But the order which the plaintiff obtained for that purpose was irregular, because applied for without notice to the defendant. It was valid, however, until' set aside; and as its effect was to place this cause upon the general calendar, the same as if a note of issue had been filed ‘in due time, the motion now made by defendant to strike the cause from the calendar cannot be granted. As the plaintiff, however, has waived the benefit of his former order by now making a new motion upon notice for the same relief, viz. that the same note of issue be filed nunc pro tune as of October 25, 1893, for the November term, 1893, the matter comes up for disposition upon the merits; and I will grant the application upon condition that the trial be stayed until the defendant have an opportunity to move for the commission which he desires, and for a stay of proceedings. The case may retain "its present number, and will be marked off term.


author: Pryor, J.

text:
    Kaliske, Pl’ff, v. Weil et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed February, 1895.)

    Trial — Dismissal.
    The complaint will not be dismissed for nonservice of the summons upon one of the defendants, where a complete determination of the controversy can be had without the presence of such defendant.
    Motion to dismiss the complaint for non-service of the summons on one of the defendants.

      Edwin T. Taliaferro, for pl’ff; Holcomb & Martin, for def’ts.
   Pryor, J.

Action against partners for specific performance of an agreement for a release, and motion to dismiss the complaint for nonservice of summons on a defendant. The order solicited is not authorized by section 821, Code Civ. Proc. Dismissal of the complaint for nonservice of summons on a defendant is warranted only “ when a complete determination of the controversy cannot be had ” without the presence of such defendant. But counsel for the motion concedes that a release by the defendants served will bind the other. What, then, is wanting to a complete determination of the controversy? Manifestly nothing. Counsel objects against the injustice of binding a party in his absence, to .which the twofold answer is : First, that the defendant not served might, nevertheless, have voluntarily appeared in protection of his rights, Waffle v. Vanderheyden, 8 Paige 45; Lumber Co. v. Bissell, 9 id. 225; Skinner v. Noyes, 7 Rob. (N. Y.) 228 ; and secondly, that the court on the trial will, if necessary, direct the absent defendant to be brought in. Code Civ. Proc. § 452; Powell v. Finch, 5 Duer, 666.

Motion denied, with costs.


author: Daly, Ch. J.

text:
    John R. Foley, Jr., as Administrator, etc., Pl’ff, v. Mercantile National Bank et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed February 19, 1895.)

    Pleading — Defenses.
    Where the defendant describes his pleading as a counterclaim, he is bound to state it separately from his other defenses.
    Motion to compel defendants to state separately and number their defenses and counterclaims.

      Henry Schmidt, for the motion ; Charles A. Davison and Wm. O. Lathrop, Jr., opposed.
   Daly, Ch. J.

The plaintiff moves to compel the defendants the bank and St. John to separately state and number the defenses and counterclaims contained in their respective answers to the complaint. The complaint sets up general transactions between the plaintiff’s intestate, John E. Foley, and the defendant Alexander Lutz, on the one part, and the defendant bank and its president, William P. St. John, on the other part, by'which loans of money were made to Foley and Lutz by the bank upon certain securities, consisting of real estate and other property, and asks an accounting of such transactions, alleging incidentally breaches of duty on the part of defendants with regard to the management and disposition of the securities, usury in some of the loans, and claiming that upon the accounting a large sum will be found due to the plaintiff. The bank and its president, “ for separate answer to the amended complaint, and by way of counterclaim,” setup, each in a pleading of over 100 folios, details of the transactions which are the subject of the plaintiff’s complaint, deny all the charges of breach of duty and of usury, and also demand an accounting. There does not appear to be any counterclaim of specific indebtedness due from the plaintiff to the defendants, but the account as set up in the answer seems to show a balance due to the bank. All the transactions of the president individually were on behalf of his bank. The Code requires that “ each defense or counterclaim must be separately stated and numbered ” (section 507) ; and, where a defendant describes his pleading as a counterclaim, he is bound to state it separately from his other defenses. Denials are no part of a counterclaim. Section 500. A counterclaim is a cause of action in favor of the defendant against the plaintiff, whether independent of the plaintiff's claim or connected with it. Section 501. A separate statement of a counterclaim is indispensable in order that plaintiff may take issue with it by a reply.

Motion granted, with $10 costs to abide the event of the action.


author: Herrick, J.

text:
    Albany Brass and Iron Company, Pl’ff, v. Charles Hoffman, Def’t.

      (Supreme Court, Albany Special Term,

      Filed April 25, 1895.)

    1. Deposition — Discovery and inspection.
    Where the necessary information to perfect defendants’ pleading is con. tained in books or documents in the exclusive possession of his adversary, he is entitled to inspect such books and documents in order to gain the necessary information.
    3. Same — Demand.
    An order of a county judge for the inspection of books or to show cause, followed by a refusal to allow such inspection, is equivalent to a demand and refusal.
    Motion for an order for the inspection of plaintiff’s books.

      Robert G. Scherer, for pl’ff; Francis B. Delehanty, for def’t.
   Herrick, J.

This is an application on the part of. the defendant for an order for the inspection of the plaintiff’s books of sales. The action is brought by the plaintiff against the defendant for goods sold and delivered. The petition of the defendant sets forth that his answer will consist of — First, a general denial; second, a counterclaim. He alleges that heretofore one Sullivan, now the general manager of the plaintiff, entered into an agreement with one William E. Delehanty, whereby the said Delehanty was to-receive commissions upon the sales made by said Sullivan of waste-water traps; that such contract was assumed by the plaintiff upon its incorporation; that, before the commencement of this action, the defendant had become the owner, by assignment, of all claims and demands which Delehanty had at that time against the plaintiff under such agreement for commissions upon the sales of said waste-water traps, and alleges that neither Delehanty nor the defendant have ever received from Sullivan or from the plaintiff anything from the sale of said traps, or any part or portion of the commissions due upon such sales, but alleges that said Sullivan and the plaintiff have manufactured and sold many thousands of dollars worth thereof, and the amount of such commissions, so due-to the defendant under such agreement, he proposes to set up as a counterclaim against the claim of the plaintiff for goods, wares, and merchandise; and that, in order to enable him to ascertain the facts in relation to such sales and amount of commissions, it is necessary for him to have an inspection of the books of sales. Upon the petition of the defendant setting up these facts, the county judge of Albany county made an order directing the plaintiff to give the defendant, his attorney and accountants, a discovery and inspection, and permission to take copies, of' such parts of the defendant's daybooks, cashbooks, ledgers, or of any such books or papers as related to the sale or sales of the waste-water traps referred to in the petition and the complaint - specifying the time and place where such inspection and discovery was to be had, or, in default thereof, to show cause at this special term of the supreme court. A counterclaim is a claim upon which a separate and distinct action might be commenced in favor of the-defendant and against the plaintiff. It should be set forth in the same manner that a cause of action should be stated in a complaint. It is, in effect, an action in favor of the defendant and against the plaintiff. In order to enable the defendant to properly frame it, he is entitled to all facilities that he would have been entitled to if he had commenced a separate and distinct action upon-it against the plaintiff, wherein he would have been-- the plaintiff, and the plaintiff in this action the defendant, filhe inspection sought here is one “relating to the merits of the action,” within the meaning of Section 803 of the Code of Civil Procedure. As a matter of pleading, it is important that its amount should be stated so that it can be seen whether the counterclaim exceeds or is less than the claim of the plaintiff set forth in the complaint. To enable the defendant to state the amount of his counterclaim with any degree of accuracy, of course it is necessary that he should know the amount of sales made by the plaintiff. He says that no account of such sales has ever been rendered to him or to his assignor. I do not think that, under the circumstances, the court, can consider this merely as a “fishing excursion” for evidence, although, like all cases for the inspection of books or documents, it necessarily enables the party to procure evidence, or satisfy himself of the lack of it. While the plaintiff in his petition is able to state the terms of the contract under which his assignor was to receive commissions, and is enabled to allege that they sold many thousands of dollars worth of the water-traps, still information which proceeds no further than that is not sufficient to base a good pleading upon. And, where the necessary information to perfect his pleading is contained in books or documents in the exclusive possession of his adversary, I think that he is entitled to inspect such books and documents in order to gain the necessary information. My attention has been called to the case of Gross v. Bock, 15 St. Rep. 965, where it was held that the court would not grant an order for inspection, in the absence of proof of a demand for such inspection, and a refusal. It was placed upon the ground that the court should not be vexed with unnecessary applications, it appearing upon the argument in that case that the adverse party was willing that the party seeking the inspection should have free access to the books sought to be examined. In this case no such willingness has been expressed, and the plaintiff had opportunity to comply with the defendant’s desire for an inspection before the matter was brought to this court. As first herein stated, the county judge made an order for the inspection, coupled with an order to show cause, in the event of the plaintiff’s refusal to grant such inspection. The plaintiff declined to grant it¡ but appeared here upon the order to show cause why an order should not be made compelling him to allow his books to be inspected.

I think the order of the county judge, with the refusal of the plaintiff to comply with it, takes the place of a demand and a refusal which makes it both proper and necessary for the court to interpose. No objection has been made to the terms and condition under which said inspection is to be made. The order is therefore granted, with ten dollars costs, to abide event of the action.


text:
    James J. Fitzgerald et al., Pl’ffs, v. J. Clarance Rightmyer et al., Def’ts.

      (Supreme Court, Albany Special Term,

      Filed May 8, 1895.)

      Pleadings — Counterclaim:.
    A counterclaim to a counterclaim is not authorized by the Code.
    Motion to strike out that portion of the reply which sets up separate and distinct causes of action.

      James J. Fitzgerald, for pl’ffs ; Duntz & Aldcraft, for def’ts.
   Herrick, J.

The complaint is for goods sold and delivered, The answer consists of a general denial and of a counterclaim against the plaintiffs for the use of vehicles furnished to the plaintiffs. The reply to the counterclaim consists of a denial, and also of a further and additional claim to that set fortli in the complaint, for goods sold and delivered, and work, labor, and service, being separate and distinct causes of action to that set up in the complaint, but of the same nature; and the motion is'to strike out that portion of the reply which sets Up separate and distinct claims for goods sold and delivered, and for work, labor, and services, in opposition to the counterclaim in the defendants’ answer. Practically, this is a counterclaim to a counterclaim, and it is unauthorized by the Code. In our system of practice, the only pleadings allowed are those designated in the Code of Civil Procedure. The only reply authorized to a counterclaim is a deniál thereof, or the pleading of new matter not inconsistent with that already set forth in the complaint, consti tuting - a defense to the counterclaim. A distinction has always been recognized between a defense and a counterclaim. New matter in a reply, which is not inconsistent with the complaint, and which constituted a separate and distinct cause of action against the defendant, in th'e orderly and regular course of pleading, has no place in the reply, but should be embraced in the complaint ; otherwise, no pleading being authorized in answer to a reply, we would have the case of a cause of action being alleged and proseo uted against a defendant, to which he could make no answer, either - to admit, deny, or set up any affirmative defense to it. It is unnecessary to refer .to the ragged and irregular way of presenting the plaintiffs’ case upon the trial that would result from permitti ng this kind of pleading.

The motion is granted, with $L'0' costs.


author: Beekman, J.

text:
    In the Matter of the Board of Street Opening and Improvement. In the Matter of One Hundred and Thirty-Sixth Street.

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    1. Board of street opening — Powers.
    Chapter 70 of 1803 does not restrict the exclusive power, conferred by section 955 of the Consolidation Abt, on the board of street opening and improvement in the matter of laying out streets.
    3. Statutes — Construction. ,
    Along-continued course of action by public officers under a statute is entitled to great weight with the court in construing it.
    Motion for the appointment of commissioners of estimate and assessment.

      Francis M. Scott (Henry De Forest Baldwin, of counsel), for petitioner; James A. Deering, for resp’t.
   Beekman, J.

This motion is made for the appointment of commissioners of estimate and assessment in the above-entitled proceeding. Upon the hearing of the motion, an objection was made on the part of a property owner affected thereby that the couTt was without jurisdiction, in that no action had been taken by the common council laying out said street. It is conceded that no such action has been taken. The counsel to the corporation contends, on behalf of the city, that no such sanction is required, but that exclusive jurisdiction in that regard is vested in the board of street opening and improvement. The learned counsel for the respondent, however, claims that the authority oi the board of street opening and improvement is still subject to the action and approval of the common council, and that no new street can be laid out in the city of Hew York without the affirmative action of that body. In support of this claim, attention is called to section 94 of the Hew York City consolidation act of 1882. That section reads as follows:

“Sec. 94. Ho new street shall hereafter be laid out in the said city except with the approbation and permission of the mayor, aldermen and commonalty, in common council convened; and if any street shall be laid out without such permission, it shall be lawful for the said mayor, aldermen and commonalty, by by-law or ordinance, to direct the same to be stopped up, and all buildings adjoining thereto to be removed by the proprietors or occupants within such times and under such penalties as they shall think proper.”

Section 955 of the consolidation act constitutes the board of street opening and improvement, and, as originally passed, vested that board with—

“All the powers and authority as to laying out, opening, widening, straightening, extending, altering and closing streets or avenues, or parts of streets or avenues, in that part of the city of Hew York south of Fifty-Hinth street, which on April 30th, 1873, were in any manner otherwise conferred and vested, or which relate to altering the map or plan of said city.”

The board was further authorized and empowered, whenever it might deem it for the public interest so to do—

“After laying its proposed action before the board of aldermen, and publishing full notice of the same for ten days in the City Record, to alter the map or plan of Hew York City so as to lay out new streets in said part of said city, and from time to time to cause maps showing the several streets or avenues so laid out, opened, widened, straightened, extended, altered or closed by them to be certified by them and filed, one in the office of the department of public works of said city, and one in the office of the counsel to the corporation of said city.”

And it was thereupon made the duty of the counsel to the corporation, on the filing of said maps in his office, and on a requisition therefor in writing, made by said board, to take proceedings immediately, in the name of the mayor, aldermen, and commonalty of the city, to acquire title to the lands so affected. In 1884, two years after the enactment of the consolidation act, section 955 was amended so as to authorize said board, “after laying its proposed action before the board of aldermen, and publishing full notice of the same for ten days in the City Record, to alter the map or plan of the city of Hew York so as to lay out new streets or avenues, and to widen, straighten, extend, alter and close existing streets or avenues in that part of the said city lying between Fifty-Hinth street and One hundred and Fifty-Fifth street and south of Harlem river,” and providing similarly in reference to the filing of maps as before stated.

If section 94 of the consolidation act, above quoted, had been intended primarily to confer jurisdiction upon the common council in reference to the laying out of new streets, it would, perhaps, be difficult to satisfactorily answer the contention of the respondent that the section in question, and that which relates to the powers of the board of street opening and improvement, should be read together, so as to give effect, as far as possible, to both, and that under that rule of construction, while the board of street opening and improvement would still have the initiative in the laying out of streets, its action could not be effective without the approbation and permission of the common council. But the learned counsel for the respondent has, I think, misapprehend the meaning of section 94. The section is taken bodily from chapter 70 of the Laws of 1803, entitled “An act to invest the mayor, aldermen and commonalty of the city of New York with adequate powers in relation to certain objects of importance to the police and health of the said city,” passed April 2, 1803. The act in question contains the following preamble:

“Whereas the general welfare of the state is connected with the safety and the health of the city of New York, which has been visited with destructive and epidemic disease, the causes of which as far as human wisdom can discover ought to be removed, and such measures adopted as by Divine favor may prevent the return of that malady, and whereas it is represented to the legislature that noxious exhalations from sunken and damp lots of ground, deep, damp cellars, narrow and confined streets, foul and ill-constructed sinks and privies unfinished, water lots, foul slips, putrid or unsound provisions and other evils of a similar nature, together with the practice of interring the dead in the heat of summer in improper places and without due precautions, are among the causes to which the existence or malignity of that disease may be in great measure attributed, therefore to remedy the said evils, be it enacted by the people of the state of New York, represented in senate and assembly,” etc.

By section 20 of the said act it was provided that the same should be and continue in force for three years from the passing thereof, and no longer; but by chapter 126, Laws 1806, it was continued indefinitely.

It is thus made evident that the provisions of the law in question were intendéd to provide for an emergency, and to furnish a remedy for unsanitary conditions which had seriously affected the health of the community. Among the productive causes of ill health and disease enumerated in the preamble are “narrow and confined streetsand, among the twenty-three sections of the act, Severally dealing with the respective matters set forth in the preamble, we find the subject of streets dealt with in the tenth, eleventh, and fifteenth sections. Section 94 of the consolidation act is identical with section 10. It may fairly be inferred that the evil to which the remedy was intended to be applied was the practice on the part of property owners of laying out streets through their property according to their own caprice, and in a manner prejudicial to the public welfare. The section in question is prohibitive in form, and was intended, not to declare the existence of a new jurisdiction in the common council, or in the city authorities, but, as a matter of public concern, to prohibit the opening of new streets under purely private auspices, and to limit the exercise of any such right on the part of individual property owners to cases where the permission of the common council should first have been obtained. The section contains within itself evidence of the correctness of this view, in that it treats the abutting property owners as the offenders, and authorizes the common council to compel them to remove their buildings, under penalties for disobedience. Other evidence of the existence of this practice also appears in the authority conferred upon the commissioners appointed to lay out the city north of Astor Place, under chapter 115 of the Laws of 1807, to shut up any streets theretofore laid out, but not accepted by the common council; and in the report of the commissioners, which recounts their efforts to amalgamate their plans with those already adopted by property owners. Valentine’s Laws, p. 809. In fact, it is difficult to come to any other conclusion, upon an examination of the act of 1803, and a consideration of the purposes for which that act was passed, so carefully recited in the preamble to the act.

Further confirmation, however, of this construction will be found when we come to consider other existing statutory provisions dealingprimarily with the authority of the corporation over the subject of streets and highways. By the sixteenth section of the Montgomerie charter it was expressly provided that the common council of the city should have “full power, license and authority not only to establish, appoint, order and direct the making and laying out of all other streets, lanes, alleys, highways, water-courses and bridges not already made or laid out, but also the altering, amending, and repairing of such streets, lanes, alleys, highways, watercourses and bridges heretofore made or laid out or hereafter to be made or laid out in and throughout the said city of New York and the Island of Manhattan, in such manner as the said common council for the time being or the major part of them shall think or judge to be necessary or convenient for all inhabitants and travelers there.” In 1787 the power thus conferred underwent some modification by the passage of chapter 61 of the Laws of 1787, whereby it was enacted that “ the mayor, aldermen and commonalty of the city of New York, in common council convened, and their successors shall be and hereby are appointed commissioners to regulate and keep in repair the present public roads or highways, and to lay out, regulate and keep in repair such other public roads or highways as shall hereafter be laid out in the said city and county,” and this was the condition of the law at the time the act of 1803 was passed. Considering these statutes together, it thus becomes quite plain that section 10 of the act of 1803 neither conferred, nor was intended to confer, any power upon the common council in reference to the laying out and the opening of streets and highways within the city, as such jurisdiction already inhered in that body, and had been possessed by it for more than a century before the act in question was passed. The section must, therefore, be construed, as has already been said, solely as a prohibition against any person or persons undertaking, as a matter of individual enterprise, to lay out streets without the permission of a public body, already possessed of authority to do so. The act in question thus became declaratory of an established policy, which lias continued to the present time, — that the laying out and opening of streets in the city of New York was a matter of public concern, and, in the interests of the public health and convenience, should always be subject to regulation by public authority. From this point of view, the provision in question would, therefore, always continue to be effective, and fully expressive of the intention with which it was enacted, wherever the public authority with reference to the laying out of streets might reside. The substantive intent being the removal of the subject from the domain of private enterprise to that of public regulation, the statutory provision would still continue fully operative, and in full harmony with such intent, although the general power to lay out new streets might be taken from the common council, and vested in some other public authority. The substance of the statute is the prohibition. The qualification of that prohibition is the permission and approbation of the public body having jurisdiction in the matter of laying out such streets. The prohibition was not directed against a public agency vested by legislative enactment' with jurisdiction over the subject, as the common council itself was the only public body then vested with such authority, but obviously against any undertaking on the part of private persons to do that which the statute declares the public interests require to be done only through public authority. The very words used, “ permission ” and “ approbation,” imply initiative on the part of others, — something in reference to which the permission and approbation of the common council must be sought The construction thus given seems naturally to follow the application of the rule which requires a statute to be interpreted in the light of surrounding circumstances, and in furtherance of the object sought to be attained by the legislature through its agency.

Without attempting to go over the history of legislation on the subject of laying out streets in that portion of the city which includes 136th street, it is sufficient to say that, for years prior to the passage of the consolidation act, jurisdiction over the subject, either declared in express terms to be exclusive, or of that import, had been vested in other public authorities than the common council. The jurisdiction thus exclusively conferred could nob reasonably be held to have been subject toi the permission and approbation of the common council. The jurisdiction conferred upon the board of street opening and improvement, which has succeeded to the powers formerly exercised by these other public bodies, is very comprehensive, and apparently of the same exclusive character." The words which qualify the power and authority of the board to take action, expressed in the phrase, “ whenever they may deem it for the public interest so to do,” are pregnant with the purpose that to that body should be committed the absolute and unqualified power of determining upon that which, in their judgment, the public interest required, and that in that regard their discretion should not be subject to review. The statute declares that the board is authorized and empowered, whenever they may deem it for the public interest so to do, to alter the map or plan of the city of New York, etc., and while it also provides that such proposed action shall be laid before the board of aider-men, and full notice of the same shall be published for ten days in the City Record, its power to proceed and alter the map of the city is unqualified by any requirement that the consent thereto of the board of aldermen should be obtained. The whole history of legislation upon this subject for many years past negatives the idea that any such consent was considered proper. We find sufficient reason for the requirement that proposed action should be communicated to the board of aldermen, and duly advertised, in the importance of notice, not only to individuals concerned in the proposed improvement, but also to the legislative body of the municipality itself, representing, in a sense, the body of the people, and therefore presumed to be interested in presenting to the board such considerations as, in their judgment, might seem fit, either in support of or in opposition to the proposed change. The provision is not sufficient to give a new meaning and object to section 94.

Another circumstance of great force in construing this section is found in the fact, shown by the affidavits before me, that, while the board of street opening and improvement has exercised the powers so conferred upon it in reference to the city south of 59th street since 1871, and in reference to the portion of the city between 59th street and 155th street, and south of the Harlem river, since 1884, and lias in each case published the above notice, and laid its proposed action before the common council, in no case has the common council passed any relsolution or ordinance in relation thereto, or assumed to take any action thereon. It is a well-recognized rule of statutory construction that a long-continued course of action by public officers under a statute is entitled to great weight with the court in construing it. In the case of In re Washington St. A. & P. R. Co., 115 N. Y. 442; 26 St. Rep. 504, Peckham, J., says (page 447, 115 N. Y.):

“ Such acquiescence and recognition on the part of the officers of the government are of very considerable, if not of controlling, weight in the interpretation of a general act of the legislature relating to public objects like the one under discussion. Easton v. Pickersgill, 55 N. Y. 310; People v. Dayton, id. 367.”

Streets have been laid out and opened under the direction of the board of street opening and improvement for many-years past, ánd large sums of money have been expended by the city therefor. If the construction contended for by the counsel for the respondent is correct, the consequences of proceeding without the consent of the common council in all these cases would prove to be most serious; and, while this is not a sufficient reason for refusing to give to a statutory provision the meaning which it plainly calls for, it is sufficient, in matters of doubtful construction, to turn the scale in favor of the practical construction which the statute has received from those who are charged by law with its execution. In the present case it cannot, as best, be claimed that the question under discussion is so plain as not to admit of discussion, and a case is therefore presented which justifies the application of the above rule, and the adoption of the practical construction which the public authorities in the city of New York have for so many years given to these statutes.

Motion granted.


text:
    In the Matter of the Board of Street Opening and Improvement. In the Matter of One Hundred and Thirty-Fifth Street.

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    1. Board of street opening — Powers.
    Section 94 oí the Consolidation Act does not qualify or affect the power of the board of street opening and improvement, and the consent of the common council to any action which such board may take is unnecessary in laying out a new street
    2. Same — Final Action.
    Such board is not required to take final action in such matter on the day specified in the public notice, but may lay the matter over for further consideration.
    Motion for the appointment of commissioners of estimate and assessment.

      Francis M. Scott (Henry De Forest Baldwin, of counsel), for petitioner; James A. Deering, for resp’t.
   Beekman, J.

Two objections are made to this proceeding: (1) That undér section 94 of the New York City Consolidation Act the consent of the mayor, aldermen, and commonalty, in common council convened, is necessary to the laying out of a 'new street, and that as such consent was not obtained in this case the court has no jurisdiction to appoint commissioners of estimate and assessment. (2) That the proceedings to close 135th street as it formerly was were not had in accordance with the statute, for the reason that the board of street opening and improvement did not consider and finally dispose of the matter on the day specified in the published notice for the consideration of the same.

As to the first objection. I have already held, in the matter of the opening of 136th street, that section 94 does not qualify or affect the power of the board of street opening and improvement, and that the consent of the Common council to any action .which they may take is unnecessary.-

As to the second objection. The affidavit of the secretary of the board shows that the matter was considered on the day mentioned in the notice, and was then laid over for further consideration and action at the next regular meeting of the board, when it was finally acted upon and the street closed. There is nothing in the statute or in reason which demanded that final action should be taken on the day specified in the notice. It was the duty of the board to act in the matter with all the deliberation which, in their judgment, the case might require, and if it was found that further consideration than that which could be given to it on the day fixed in the notice was necessary, it was not only eminently proper but entirely within the power and jurisdiction of the board, to lay the matter over for that purpose. The object of the notice was to afford those interested an opportunity for appearing before the board and presenting such arguments as they might wish to offer upon the subject; and it would certainly be restrictive of the purpose for which notice is required to be given, to hold that the board shall have no time to consider such arguments, but must finally act upon the matter at the meeting fixed for the first consideration of the subject.

The objections raised are not tenable, and the motion should be granted


text:
    In the Matter of the Application of George Sweeley, for a Writ of Mandamus, etc.

      (Supreme Court, Albany Special Term,

      Filed April 30, 1895.)

    1. Civil service law — Soldiers.

      The soldiers and sailors of the late war, under the amendments of 1895 to the state Constitution, are subject to the operations of the Civil Service Law, and are simply given a preference over others whose qualifications have been tested by examination.
    3. Statutes — Repeal.
    A Constitutional provision, which is repugnant to a statute in force when the Constitution is adopted, abrogates the statute, though such provision is not self-executing aud is left without any legislation in aid of it.
    8. Same.
    Chap. 717 of 1894 is in conflict with the provisions of section 9, art. 5, of the Constitution, as amended in 1895, and repugnant to its principles, and is, therefore, abrogated.
    4. Same — Revival.
    Section 4, chap. 410 of 1884, as amended by chap. 39 of 1886, being in harmony with the Constitution, is not abrogated by it, but is revived and again becomes a part of the law of the state, by virtue of the abrogation of chap. 717 of 1894, which amended and by implication repealed it.
    Application for a writ of mandamus to compel the police commissioners of the city of Albany to administer to relator the oath of a policeman, and to assign him to duty.

      James W. Eaton, for the application ; William P. Rudd, Corp. Counsel, opposed.
   Herrick, J.

In 1883 the legislature of the state of New York, by an act entitled “An act to regulate and improve the civil service-of the state of Hew York ” (chapter 354), provided for the appointment by the governor of a commission, designated “ Civil Service Commission,” consisting of three persons, whose duty it should be, among other things, to aid the governor in preparing suitable rules to carry into effect the purposes of the act, which rules, among other things, should provide “ for open, competitive examinations for testing the fitness of applicants for the public service, now classified or to be classified hereunder.” By section 8 of said act the mayor of each city of the state having a uopulation of over 50,000 inhabitants, was authorized “ to prescribe such regulations for the admission of persons into the civil service of such city as may promote the efficiency thereof, and ascertain the fitness of candidates, in respect to. character, knowledge and ability, for the branch of the service into which they seek to enter.” Pursuant to such act of the legislature, the mayor of the city of Albany, a city of over 50,000. inhabitants, prepared rules and regulations for the admission of persons into the civil service of said city ; and in and by such rules it was provided that patrolmen in the police force of said city should be appointed “ by selection from those persons graded highest as the result of open, competitive examinations.” The regulations so made by the mayor of the city of Albany were approved by the civil service commission of the state. The collection or roll of names of the persons passing the required examinations under the rules adopted by the governor and civil service commission of the state, and the mayors of the several cities, and from which collection or roll appointments to the civil service of the state or of such cities were to be made, came to be known as the “ eligible list,” and upon it were entered the names of persons so qualified by such examinations, in the order of excellence by which they had passed the examinations to which they had been subjected.

By chapter 410 of the Laws of 1884, chapter 354 of the Laws of 1883 was amended and added to, and section 4 of said amendatory act, being a new and additional section, provided that:

“ Persons who served in the army or navy of the United States in the late wzir, and have been honorably discharged therefrom, * * * shall be preferred for appointment to positions in the civil service of the state, and of the cities affected by this act, over other persons (of equal standing), as ascertained under this act and the acts hereby amended.”

In 1886 this law was further amended by chapter 29, which provided that persons who have served in the army or navy of the United States in the late war, and have been honorably discharged therefrom, shall be preferred for appointment to positions in the civil service of the state, and of the cities affected by said act, “over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided under this act and the several acts hereby amended.”

In 1894, by chapter 717, the law was further amended, so as to • read that :

“The civil service roles and laws of this state shall, not apply to such persons residents of this state, who have served in, the army or the navy of the United States, and who have been honorably discharged therefrom, for any position or employment, compensation for which does not exceed four dollars per day, in the public departments, and upon all public works of the state o£ New York, and of the several cities, counties, towns and villages thereof.”

This was the condition of the civil service laws of the state and of the city of Albany, so far as they affect the present application, when the new constitution was adopted, in the fall of 1894, and the policy of the state of ascertaining the merit and fitness of persons applying for appointments in the civil service of the state and the cities and villages thereof, by examination, was made part of the organic law by section 9, article 5 of the constitution, reading as follows:

“ Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall .be competitive; provided, however, that honorably discharged soldiers and sailors from the army or navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

After this section of the constitution had become part of the fundamental law of the state, and on the 26th day of February, 1895, the applicant, George Sweeley, applied to the board of police commissioners of the city of Albany for appointment as a patrolman. It appears that Sweeley is a person who served in the army of the United States in the late civil war, and was honorably discharged therefrom. It also appears that he has passed a satisfactory physical examination, and is competent to act as a patrolman of the city police force, but he has passed no civil service examination, as prescribed by the rules and regulations made by the mayor, and approved by the state civil service commission, as hereinbefore set forth ; and it is conceded that his name does not appear upon any list of persons eligible to appointment upon the police force of the city of Albany, The compensation of a patrolman on the police force of the city of Albany is less than four dollars per day. The police board, upon the certificate of its examining surgeon as to his physical fitness and competency to discharge the duties of a patrolman, appointed said Sweeley to such position. The civil service examiners of the city of Albany, appointed under the- civil service regulations of said city, thereafter called the attention of the police board to the provision *of the constitution I have quoted. Objections were made by certain citizens of the city to the appointment of Sweeley, and upon his presenting himself before such board of police commissioners, and asking to be sworn in as such patrolman, and his warrant of office issued to him, and to be assigned to duty, the board of police commissioners refused his request, and adopted the following resolutions:

“ The appointment of George Sweeley having been declared illegal by the corporation counsel, for the reason that he was not certified by the civil service commission, it is hereby resolved that his services be declined, and the chief, the captains and sergeants of this department are hereby instructed to refuse his services, and each member of the board hereby refuses to administer the oath of office, for the above-mentioned reason.”

Whereupon the said Sweeley makes this application for a peremptory writ of mandamus, to be directed to the police commissioners, and each of them, commanding and directing them to administer to him the legal oath of office as a patrolman on the police force of the city of Albany, and to issue to him his warrant of appointment as such patrolman, and assign him to duty. It is conceded by counsel that the remedy by mandamus is proper if the applicant is entitled to the office in question.

The only question raised and argued before me, and the only one I understand that it is desired to have considered, is as to the effect of the amendment to the constitution I have quoted, upon the civil service laws of the state and city, in so far as they relate to honorably discharged veterans of the late civil war, and in particular its effect upon chapter 717 of the Laws of 1894. It is contended that the amendment to the constitution referred to does not affect the question, because, it is argued, such amendment is not self-executing. A constitutional provision is self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. Oooley, Const. Lim. (6th ed.) pp. 99, Í00. And it is asserted that the amendment in question simply lays down principles for future legislation; that it does not prescribe the rules by which it may be enforced; and it is said that the amendment itself recognizes that fact in the last clause, which reads: “ Laws shall be made to provide for the enforcement of this section.” I apprehend that this argument is correct as far as it goes. So far as any affirmative effect is to be given to the amendment in question, it will be assumed that it needs legislation to give it life. But I cannot assent to the argument that, until the legislature passes laws to enforce it, it is absolutely a dead letter, and is as if it had never been adopted. It is possible that if .there were no laws upon the subject in existence at the time of its adoption, upon which it could have a negative or nullifying effect, and none being passed after its adoption to enforce it, practically it would be as if it had never 'had been adopted, except that no theretofore existing right could be affirmatively enforced in opposition to it. But 1 cannot agree to the proposition that, where there are laws upon the statute book upon a given subject, a constitutional enactment upon that same subject, subsequently adopted, in direct conflict with it, does not affect it, unless such constitutional enactment contains within its provisions the necessary machinery to affirmatively enforce it, and that if it does not, the pre-existing law, although in terms and principle in direct hostility to the constitutional enactment, continues in force until the legislature provides the necessary machinery for enforcing, in an affirmative way, such provision of the constitution. Because the legislature, through neglect, or because of the lack of time, after the adoption of the constitution, has not provided the necessary means to enforce it, I cannot concede that a citizen has any rights which he can enforce contrary to its provisions.

I can conceive of a statute constituting an act which was theretofore lawful, and which people bad a right to do, a crime, and yet when, through omission or neglect, no punishment had been prescribed, and none prescribed by any general statute, that a person doing the act so defined to be a crime could not be punished because no penalty had been decreed, and therefore no means provided to enforce the law. Nevertheless, the person committing such act would be violating the law ; and I do not think that any one would for a moment contend that the courts would by their process enforce his claim to do that which was formerly his right to do, but which the statute defined to be a crime. So that such a statute, although no means had been provided to enforce it, would not be a dead letter, but have a negative and prohibitive force and effect. So, while a provision of the constitution may need legislation to enforce its principles, and give them affirmative effect, yet, without any legislation, such provision may have a negative force, in prohibiting acts in violation of its terms, and nullifying statutes repugnant to its principles; and thus while, from lack of legislation, its principles cannot be affirmatively enforced, neither, on the other hand, can those principles be lawfully violated, or any statute violating them be enforced.

I will not discuss what negative effect the amendment in question, standing alone, may have in nullifying or repealing laws in existence at the time of its adoption which are repugnant to it. All parts of the constitution are to be construed together, and in connection with each other. Section 16 of article 1 of the constitution provides, among other things, as follows :

“ Such acts of the legislature of this state as are now in force, shall be continued the law of this state, subject to such alterations as the legislature shall make concerning the same. But all parts of the common law. and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.”

And, in judging of the effect of the amendment under consideration upon theretofore existing laws, such amendment must be read in connection with section 16 of article 1. The civil service law of the state, as it was prior to the adoption of the new constitution, is, with the exception of the acts that have been passed relative to soldiers, in harmony with the constitution. The acts relative to soldiers are additions to the civil service law, and their i'epeal, or the repeal of such of them as are repugnant to the constitution, will not destroy the whole law, but will leave it a harmonious and complete law. The law under which the applicant claims his appointment to the police force is a law which entirely relieves honorably discharged soldiers of the the late civil war from subjection to the civil service laws of the state in cases where the pay of the position sought does not exceed four dollars a day. And the question that arises, therefore, is whether such a law is repugnant to the amendment of the constitution in question. That leads us to an examination of the meaning and intent of such amendment.

“ It is a cardinal rule in the interpretation of constitutions that the instrument must be so construed as to give effect to the intention of the people who adopted it. This intention is to be sought in the constitution itself, and the apparent meaning of the words employed is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction.” Black, Const. Law, 65. It was the evident intention 'by this amendment to ingraft into the organic law of the state the principle of ascertaining the merit and fitness of applicants for appointment in the civil service of the state by examination, and also to provide for the extension of such principle beyond what1 was provided for in then existing laws or permitted by the old constitution. And it is apparent that, while it was intended to give veterans the preference, it was not intended that they should be relieved from demonstrating their fitness for official positions by submitting to an examination, but simply to give them a preference over those not soldiers, who had also had their fitness tested by examination.' It is to be presumed that the framers of the section were acquainted with the existing civil service laws of the ' state, and knew that under them appointments were made from a so called “ list; ” that applicants for appointments were placed upon such list after an examination ; and that the relative position or standing that they occupied on such list depended upon the manner in which they passed such examination. And it is to be presumed that, in making use of the language that they did, they had in view such existing laws. People v. Rathbone, 145 N. Y. 435, 438 : 65 St. Rep. 404. And, therefore, it is plainly to be inferred from the language used, “ shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointments or promotions may be made,” that they had in contemplation a list, mad.e up after an examination of the applicants, from which appointments should be made, upon which list the soldier applicant should secure a "standing by examination.

In aiding us to determine what the framers of this section meant by the language used, the proceedings of the convention are of great assistance. As originally proposed, the section in.question read as follows

Appointments and promotions in the civil service of the state, and of the- cities, shall be made so far as practicable according to merit and fitness to be ascertained by examination, which so far as practicable shall be competitive. Laws shall be made to provide for the enforcement of this section.” Records N. Y. Cons. Con. p. 2438.

I will not refer to the various proceedings by which this section was afterwards altered, excepting as such alterations refer to the soldiers or sailors of the late civil war. Under this proposed section, it will be observed that the vetran soldier was not mentioned ; that it applied to all citizens of the state alike.

Subsequently the following amendment was proposed, to be added to the end of section :

“Honorably discharged Union soldiers and sailors, who are not otherwise disqualified from appointment or promotion, shall be exempt from the provisions of this section.”

The amendment was voted down (page 2444), and then the following substitute was offered:

“ That honorably discharged soldiers and sailors of the late war shall be exempt from civil service examinations, and that all that shall be required of them, shall be capacity to perform the service for which they are applicable.”

This was also negatived. Page 2444. Thereafter the following amendment was proposed:

“ Honorably discharged Union soldiers and sailors shall be exempt from such examinations, and shall have preference to such appointments and promotions.” Page 2546.

Another amendment was offered in the following words :

“ Honorably discharged soldiers and sailors who served in the late war, who are not otherwise disqualified for promotion, shall be exempt from the provisions of said competitive examinations.” Page 2547.

Still another amendment reading as follows was offered :

“Honorably discharged Union soldiers and sailors of the late civil war, shall be exempt from the examinations required by this section.” Page 2549.

This section, with the various amendments, was the cause of much debate, which, of course, it is impracticable to reproduce here, showing the desire and intention of those offering the several amendments to exempt soldiers and sailors of the late war from the operation of the civil service laws of the state, and of the proposed section of the constitution. In the course of the debate, chapter 717 of the Laws of 1894 was referred to, and the lines were sharply drawn between those who desired to entirely exempt soldiers of the late war from the operation of the civil service law, and the principle of ascertaining the fitness of candidates seeking appointment to public office by examination, and those who were willing to give them a preference, after they had demonstrated their fitness by being subjected to such examination, over others, not soldiers and sailors, whose fitness had also been tested by examination. This contest eventuated in the offering and adoption of the following provision :

“ Provided, however, that honorably discharged soldiers and sailors in the United States in the late civil war, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which appointments or promotions shall be made.” Records N. Y. Cons. Con. p. 2554.

This amendment being adopted, the president of the convention stated that that disposed of the necessity of taking a vote upon any of the other proposed amendments; and, after amending it by inserting the words “ army and navy of the," and the words “citizens and residents of this state,” making it read as it now is in the constitution, it was formally adopted by the convention. Page 2645.

It will be seen by this review of the various steps taken in perfecting the section under consideration, and from the defeat of every amendment that proposed to exempt them from the operation of the civil service law, or from examinations to test their fitness for office, that it was the evident intention of the framers of the constitution to subject the soldiers and sailors of the late war to the operations of the civil service law, simply giving them a preference over others whose qualifications had been tested by examination ; and the language by which they evidenced that .intent, while perhaps not so clear as it might be, still sufficiently expresses it; and we must presume that the people who voted for and adopted it had the same intention in so doing, as the convention which framed it. Such being the intention of the people and the meaning of the constitution, if after the 1st of January, 1895, the legislature had passed a law relieving all applicants for positions in the civil service of the state, or of any of the cities thereof, who are honorably discharged soldiers and sailors of the late civil war, from the operations of the civil service laws of the state, I think no one would contend but that such law was in conflict with the constitution, and, therefore, null and void. If a law passed after the constitution went into effect is unconstitutional and void because in conflict with the constitution, the same law passed prior to the adoption of the constitution is “ repugnant ” to it, and under section 16 of article 1, as hereinbefore set forth, is abrogated.

It follows from this that chapter 717 of the laws of 1894, being a law which exempts honorable discharged soldiers and sailors from the operations of the civil service law of the state, and from being examined to test their fitness, in cases where they are applicants for positions, the pay of which does not exceed four dollars per day, is in conflict with the provisions of the section of the constitution in question, and repugnant to its principles, and is therefore abrogated.

Section 4 of chapter 410 of the Laws of 1884, as amended by chapter 29 of the Laws of 1886, being in harmony with the constitution, is not abrogated by it; and the law by which it is amended, and by implication repealed (chapter 717, Laws 1894), being abrogated and repealed,' it is revivified and again becomes a part of the law of the state. We thus have without any legislation to carry this section of the constitution into affirmative effect, but by the force- and effect of the provision of the constitution abrogating and repealing theretofore existing laws repugnant to it, and continuing in effect those laws not repugnant to it, a civil service law to which the applicant, although an honorably discharged soldier of the late civil war, is subject, under the provisions of which he must be examined to test his fitness for the position he aspires to, and be placed upon the eligible list, where he can be given a preference over all others, not soldiers or sailors, who have also been placed upon such list as the result of the examinations to which they have been-subjected.

This conclusion leads to a denial of the application for a mandamus, but as the question is a new one, about which there has arisen differences of opinion among persons learned in the law, it is denied, without costs; denied, not as a matter of discretion, but as a matter of law.