author: Lawkenoe, J.:

text:
    WILLIAM M. NEWMAN, Respondent, v. GEORGE H. GODDARD, Appellant.

      Personal injuries committed out of this State—jurisdiction of court as to — Incompetent evidence— what must he shown to cure the admission of.

    This court has jurisdiction of personal injuries committed in another State, when hoth or either of the parties are citizens of the United States.

      Be Witt v. Buchanan (54 Barb., 31) followed.
    On the 14th of Hay, 1861, at the city of Camden, Arkansas, the defendant, as a member of a vigilance committee, entered the store of the plaintiff, and ejected him therefrom, and seized and removed his goods. Upon the trial of this action, brought to recover:,damages for the injuries sustained thereby, evidence was admitted, under the objection and exception of the defendant, of threats of personal injury to the plaintiff, made by the defendant after the occurrence of the transaction in question. Held, that this was error.
    Evidence was also admitted to show that the goods taken increased in value from one to two hundred per cent before the close of the war. The judge, in his charge, instructed the jury not to take this evidence into consideration in determining the amount of damages sustained by the plaintiff. Held, that the admission of the evidence was error, and that the error in receiving it was not cured by the charge, as it could not be said that the minds of the jury were not affected by it in arriving at their verdict.
    Appeal from a judgment, entered on the verdict of a jury, in favor of the plaintiff, and from an order denying a motion for a new trial.

      James O. Garter, for the appellant.

      Joseph Laroopue, for the respondent.
   Lawkenoe, J.:

The plaintiff alleges that the defendant, with others acting as a vigilance committee, in the city of Camden, in Arkansas, on the 14th day of May, 1861, with force of arms, entered the store of the plaintiff and ejected him therefrom, and seized and carried away the stock of goods in the store, with all the books, papers and private effects of the plaintiff, and converted and disposed of the same to their own use, and thereby broke up and destroyed the plaintiff’s business ; and damages are claimed for the injury resulting to the plaintiff.

On the trial, it was contended by the counsel for the defendant:

First. That this court has no jurisdiction, so far as the action is to be regarded as brought to recover for the personal injuries sustained by the plaintiff; and,

Secondly. That the defendant having been subsequently discharged as a bankrupt, under the bankrupt law of the United States, such discharge'is a bar to this action.

As I have come to the conclusion that a new trial must be granted upon two of the objections and exceptions taken by the defendant’s counsel, it will be unnecessary to consider the effect of the discharge in bankruptcy; and, as to the question of jurisdiction, the case of De Witt v. Buchanan seems to be conclusive. In that ease Justice James denies the doctrine laid down by Chief Justice Daly, in Molony v. Dows, and says: It is now settled that the courts of this State will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the United States.”

Upon the trial the plaintiff was allowed to testify, under the objection and exception of the defendant’s counsel, to threats made by the defendant of personal injury or violence to the plaintiff, after the ejection of the plaintiff from his store, and after the seizure and conversion of the plaintiff’s goods.

He was also permitted to testify, under like objection and exception, that the goods taken from his store, before the close of the war, enhanced in value from one to two hundred per cent in gold.

The justice before whom the cause was tried, in his charge to the jury, upon the request of the defendant’s counsel, directed the jury not to take any of this evidence into consideration in fixing the amount of damages sustained by the plaintiff. I think that the evidence was incompetent, and that the subsequent direction to the jury to disregard it, does not cure the error in first receiving it. The threats, made by the defendant after the trespass and wrongful acts averred in the complaint had occurred, were not a part of the res gestee, but threats to commit separate and independent torts. They constituted no part of the cause of action stated in the complaint, and, as they were made after that cause of action had arisen, I do not see how such threats tended to show the animus of the defendant toward the plaintiff, in committing the acts referred to in the complaint.

The evidence as to the rise in the value of the goods, seems to me to have been equally irrelevant and incompetent. It was assumed that the plaintiff would have remained in Camden throughout the war, and that he would have continued to be the owner of the goods until the great increase in the value had taken place.

The rule which should govern in this case, is well stated by Judge Grover, in Erben v. Lorillard. There the justice, in charging the jury, directed them to disregard certain evidence which he had admitted. Judge Grover says: “ The plaintiff’s counsel insists that this (if error) was cured by the charge. When illegal evidence, properly excepted to, has been received during a trial, it must be shown that the verdict was not affected by it, or the judgment will be reversed. If the evidence may have affected the verdict, the error cannot be disregarded. The rights of parties can only be preserved by adhering to this rule. It would be in vain to observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are impaneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence.”

In this case it cannot be said that it appears that the evidence objected to did not affect the minds of the jury in arriving at their verdict. On the contrary, I think that it is quite apparent that the evidence may have affected, and did affect, their minds in reaching a conclusion. The case is one which, in its nature, appeals very strongly to the sympathies and passions, and the evidence was calculated to inflame and excite the sympathies of the jury. The verdict rendered was large in amount, and, as the evidence may have enhanced the verdict, I do not think that we can disregard the error.

The judgment should be reversed and anew trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

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

      54 Barb., 81.

      8 Abb., 316.

      19 N. Y., 302, 303.

       See also Travel v. Eighth Ave. R. R. Co., 3 Keyes, 499.


source: Caselaw Access Project

author: Lawrence, J.:

license: Public Domain

text:
    ALLEN H. BEEBE and THOMAS GOODENOUGH, Respondents, v. JOHN S. KENYON.

      Money due to judgment debtor—when order directing payment of, to judgment creditor will be vacated—assignment of, by debtor before making of order—effect.

    Where a person has been ordered to pay over to a judgment creditor a sum of money due from him to the judgment debtor, and subsequently he is notified that the judgment debtor had, prior to the making of the order, absolutely assigned all his interest in the claim against him, the order directing him to pay over the money should be vacated.
    The validity and good faith of the alleged assignment cannot be assailed upon a motion; that can only be done in an action brought by a receiver.
    Appeal by Newton S. Briggs from an order of Mr. Justice Donohue, at Special Term, adjudging Briggs to be in contempt of an order made by Mr. Justice Lawrence, directing Briggs to pay over to the plaintiffs the sum of $275.44, being the amount admitted by Briggs to be due from him to the defendant, at the time Briggs was examined and the order to pay over the said sum was made ; and also denying a motion, made by Briggs on the return of the order to show cause why he should not be punished for contempt, to vacate the order granted by Justice Lawrence.

      Erasims New, for the appellant.

      Beebe, Wilcox <& Hobbs, for the respondents.
   Lawrence, J.:

At the time that the order was made, directing Briggs to pay over to the plaintiffs the sum of $275.44, it appeared from his examination that he admitted that he was indebted to the judgment debtors in that amount. The order was therefore proper when made.

When the motion to punish for contempt came on to be heard, it appeared that, long prior to the making of the order for the violation of which it was sought to punish Briggs, the defendant had absolutely assigned all his interest in his claim against him. Briggs, at the hearing on the motion to punish for contempt, moved on the affidavits read in opposition to that motion, as I infer from the recitals in the order appealed from, to vacate the original order directing him to pay over. This was denied, and an attachment was directed to issue. It seems to me that the motion of Briggs to vacate the order to pay over should have been granted. The defendant having assigned the claim against Briggs long prior to the proceedings against him on which the order was based, there was no indebtedness to the defendant on the part of Briggs. The indebtedness was to the defendant’s assignees.

The order to pay over will be of no avail in any action which may be brought by the assignees of the defendant against Briggs. It will be no defense to him.

"Under these circumstances, Briggs having disclaimed any intentional disrespect to, or disobedience of, the order of the court directing him to pay over, it would be harsh in the extreme, to enforce the original order, and to impose a fine upon him.

We cannot, on this motion, try the question of the validity and good faith of the alleged assignment by the defendant. That can only be done in an action brought by a receiver; for the purposes of this motion the assignment must be deemed to be valid. The order appealed from should be reversed without costs, and the order, directing the payment over by Briggs, should be vacated; the plaintiff to be at liberty to apply for the appointment of a receiver, at the chambers of the court.

Davis, P. J., and Daniels, J., concurred.

Ordered accordingly.

       Barnard v. Kobbe, 54 N. Y., 516; Rodman v. Henry, 17 id., 482.


text:
    THOMAS M. TYNG, Appellant, v. PETER FIELDS and JAMES B. FIELDS, Respondents.

      Expert—what question map he ashed of—Payment—when conditional.

    Upon the trial of this action, in order to determine the value of services performed by the defendants in repairing an engine for the plaintiff, a witness, qualified to testify as an expert, was asked: Could the engine Gazelle, by any possibility, have been so damaged by wear and tear, or by accident, that, with the parts and materials as testified to by Mr. Fields, $20,000 would have been a reasonable charge for rebuilding her ? which question was excluded. Held, that the question was a proper one, and its exclusion was error.
    The agreement provided that the work should be done by day’s work, the prices to be ordinary shop prices, and the bills to be rendered monthly, fifty per cent to be paid when the bills were rendered, and the balance on the completion of the work. The defendants suspended work upon the engine because the plaintiff failed to pay fifty per cent of the bills rendered, after which the engine was accidentally destroyed by a fire, occurring on the premises of the defendant. Held, that, as the fire did not appear to have been in any way connected with or produced by the plaintiff’s alleged breach of contract, the fifty per cent to be paid on the completion of the work never became due.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. The defendants were employed by the plaintiff to repair two engines for him. Upon the completion of one of them, the Gazelle, the defendants refused to deliver it until their bill was paid, payment being refused by the plaintiff on the ground that the bill was exorbitant and excessive.' Subsequently the Gazelle was, by agreement, sold for $11,000, which sum the defendants received and retained in the place of the engine. This action was brought to recover this sum and damages for breach of the contract to repair the engines. The defendants set up as a counter-claim a demand for services rendered and materials furnished in repairing the engines. Upon the trial it appeared that bills had been rendered to the plaintiff, which had been prepared by copying the items thereof from the books of the defendants. The defendants offered in evidence other bills, prepared in the same way, which the referee at first refused to admit, on the ground that, “ if the bills themselves had been copied, the copy would be evidence in connection with the testimony as to what the hills delivered were, but this paper appears to have been made from the books subsequent to rendition of those bills; the books are the standard, and it seems to me that a copy taken from them is hardly proper. I am inclined to think you cannot refer to a second copy from the books, as a copy of the account.”

      Wm. S'. Shepard and Marsh <& Wallis, for the appellant.

      A. P. Whitehead, for the respondents.
   Lawrence, J.:

I think that the judgment in this case should be reversed, and a new trial ordered for the following reasons:

I. It is admitted by the answer of the defendants, that the agreement between the plaintiff and defendants was, that the plaintiff should pay and the defendants should accept, for the work to be performed, a just and reasonable price and compensation. Much testimony was given upon the trial before the referee, as to what would constitute a reasonable price or compensation for the work actually performed by the defendants; and several experts in the business of building and repairing locomotives were examined on that point.

Among others, one Davis was examined on behalf of the plaintiff. It appeared that he was, at the time of his examination, the superintendent of the Lancaster Locomotive Works, and had been in business as a machinist for about thirty years, and was familiar with the cost of building, rebuilding and repairing locomotive engines, and also with the value of the materials and labor necessary for that purpose, in the years 1864 and 1865, being the period during which the engines, referred to in the pleadings in this case, were in the hands of the defendants. His testimony sufficiently shows that Davis was an expert, quite competent to testify as to the value of the work and labor performed and materials furnished by the defendant for the plaintiff; and, therefore, it seems to me that the following question, which was asked by the plaintiff’s counsel, was a proper one: “ Could the engine Gazelle, by any possibility, have been so damaged by wear and tear or by accident that, with the parts and materials as testified to by Mr. Fields, $20,000 would have been a reasonable charge for rebuilding her?”

This question was objected to by the defendants’ counsel; and, the objection being sustained by the referee, the plaintiff’s counsel excepted. I think this ruling was erroneous. Fields, who was referred to in the question, was one of the defendants, and he had, in his testimony, stated that certain portions of the engine Gazelle had been used in rebuilding or repairing the engine. It seems to me that it was competent to ask the witness, who was an expert and had seen the Gazelle, whether it was possible that such an engine could have required repairs that amounted in value to $20,000. It was a direct question, calculated to point out distinctly to the witness the subject to which his mind was to be directed, and I think a legitimate way of ascertaining from the witness what was the value of the defendants’ work and services. The question did not call for the mere opinion of the witness upon a hypothetical case, nor did it require him to speculate upon the value of repairs put upon the engine. He had seen the Gazelle after she was repaired; had heard the testimony of Fields; and the question required him simply to state whether, in any event or contingency, work of the value claimed by the defendants, could have been performed upon that engine.

II. I think the referee also erred in admitting in evidence the bills which are set forth at pages 275 to 297 of the printed case. The referee had previously refused to admit these bills in evidence. He finally received them for the purpose of showing what bills had been presented by the defendants to the plaintiff, as testified to by the witnesses. An inspection of the case fails to disclose any reason why the bills which had once been rejected, should have been finally received. Ho evidence had been given which cured the defect pointed out by the referee when they were first offered in evidence. It is quite evident that the referee was governed in his findings, as to the amount due from the plaintiff to the defendants, by the statements or entries in said bills, and that they were used by him in making up his report, for other purposes than that for which they were received in evidence. Whether I am right as to this, is, however, immaterial, inasmuch as the alleged bills never were compared with the bills of which they were alleged to be copies, and were not copied from them, and were not, therefore, admissible for any purpose.

III. A perusal of the testimony of the various witnesses, as to the value of the work and services performed and rendered by the defendants in and about the repairing of the Gazelle, seems to me to show that the amount allowed by the referee to the defendants, $21,603.48, as the value of such work and services, was far in excess of the real value. The witness Davis, who, from his experience as the superintendent of the Lancaster Locomotive Works, and from his general experience as a machinist and locomotive builder, was peculiarly qualified to speak on the question of value, testifies that a reasonable charge for rebuilding the Gazelle would be from $7,000 to $8,000.

Kichols, who also testifies to a very extensive experience in the business of building, rebuilding and repairing locomotives, testifies that the total value of the work done would have amounted, after allowing thirty-five per cent for profit, to $9,315.40.

This witness gives in tabular form, the items of repair and a specific statement of the value of each item, which bears the mark of accuracy and exactness; and he seems to me to he altogether the most reliable witness on the question of value produced before the referee. Dougherty testifies that he repaired more fully a larger engine than the Gazelle, in 1864, for $9,275 ; and McKay, that his charge for repairing a larger engine more completely, in 1865, was $8,400. The plaintiff himself testifies that a very liberal price for the work on the Gazelle would be from $7,000 to 8,000.

The witnesses for the defendant do not seem to me to have had the same amount of experience in the business of building or of repairing locomotives as those sworn for the plaintiff^ and I am of opinion that their estimates of value are clearly not entitled to the weight which should be given to the estimates of the plaintiff’s witnesses. The preponderance of evidence, therefore, seems to me to be so strongly in favor of the plaintiff, on the question of value, that the judgment of the referee should be reversed on that ground, if no other existed. The referee has allowed to the defendants, in adjusting the accounts between the plaintiff and defendants, the sum of $21,496, for work and services which, from the evidence, could not have exceeded in value, the sum of $10,000 or $11,000; and it is by this excessive allowance that the plaintiff is made to appear in debt to the defendants. I have less hesitation in arriving at this result, because the evidence shows that an entirely new engine, of the style and character of the Gazelle, could have been built in 1864 and 1865, for $12,500. It seems hardly credible, that the repairs to an old engine at that time, could have been of the value of $21,496. On this branch of the case I am convinced that the finding of the referee is not in accordance with the truth, and that justice demands a reversal of his judgment.

IY. Again. The referee has found that the agreement between the plaintiff and defendants, was, that the work should be done by the day’s work, that the prices were to be the ordinary shop prices; and that the bills were to be rendered monthly. That fifty per cent was then to be paid, and the balance on the completion of the engine. He also finds “ that the defendants performed work and furnished materials toward repairing the engine ‘ Quincy,’ amounting, according to bills rendered by the defendants and proved to be correct, to about April, 1865, in the aggregate to $2,714.40, upon which the plaintiff had up to that time made payments by cash and materials to $693.76, leaving a balance owing and unpaid to the defendants of $2,020.64,” which, with interest to the date of his report, the referee finds amounted to $2,737.55.

It is then found that the defendants suspended work upon the same engine, because the plaintiff made default in the payment of the fifty per cent of the bills referred to, after which a fire accidentally occurred to the premises of the defendants, by which the same engine ‘ Quincy ’ was burned and destroyed.”

The referee then proceeds to allow to the defendants the full amount, found by him to be due upon the Quincy at the time the fire occurred, forgetting, apparently, that only fifty per cent of the amount was due at that time by the agreement between the parties, and that the remaining fifty per cent was not to become due until the final completion of the engine — an event which never occurred. The fire was acidental, and does not appear to have been, in any way, connected with or produced by the plaintiff’s alleged breach of contract, and he cannot be compelled to do, in consequence of the fire, otherwise than his contract obliged him to do.

While, under ordinary circumstances, this error would not be regarded as a ground for an absolute reversal of the judgment, but one which could be remedied by a deduction of the excess allowed to the defendants, I am of opinion that, taken in connection with the other errors in fact above alluded to, it constitutes an additional reason for reversing the judgment.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred ; Daniels, J., concurred in the result.

       Finch v. Parker, 49 N. Y., 1; Townsend Manuf. Co., v. Foster, 51 Barb., 346; Thompson v. Menck, 22 How., 431.

       McConihe v. N. Y. & Erie R. R., 20 N. Y.,497, 498.


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

text:
    JAMES WATSON, Respondent, v. SIMEON E. CHURCH, Appellant, and another.

      Foreclosure of mos'tgage—wife's inchoate right of domes'—Ses'rice of summons upon husband, for wife — when sufficient.

    Where, in an action to foreclose a mortgage, a summons, directed to the wife, is served upon the husband, the mortgagor, it is his duty to appear and answer jointly for himself and wife ; service of the summons upon the wife is only necessary when the proceedings are against her separate estate. (Per Lawrence, J.)
    In this action, brought to foreclose a purchase-money mortgage given by the defendant S. E. Church, a summons, directed to his wife, was served upon him. He appeared in the action for himself, but not for his wife, and subsequently purchased the premises at a sale, had under the judgment entered in the action. On an application made by him to be relieved from his bid, on the ground that his wife was not bound by the judgment, held,, that his application should be denied, as he purchased with full knowledge of the facts, and as in any event the defect was unimportant, the only object of making the wife a party being to cut off her inchoate right of dower, which right she would reacquire by his purchase of the premises.
    Appeal from an order made at the Special Term, requiring the appellant, Simeon E. Church, to comply with certain terms of sale, subscribed by him as the purchaser of certain real estate at a sale under the foreclosure of a mortgage.

      Charles Whel/p, for the appellant.

      Hudson <& Stranis, for the respondent.
   Lawrence, J.:

This action is for the foreclosure of a purchase-money mortgage, executed by the appellant, Simeon E. Church. The summons was duly served upon the appellant, Simeon E. Church, but was never served upon the defendant, Sophia B. Church, personally. A summons, directed to her, was, however, served upon the appellant for his wife, and the same was left with him on the 3d of December, 1873. On the 8th day of January, 1874, the appellant appeared for himself in the action, stating, in his notice of appearance, that it was not thereby intended to admit that this action is brought in any court known to the Constitution or laws of this State, or to waive objections thereafter on that account.

The original summons and complaint were entitled, “ Supreme Court of the city and county of New York,” and, on the 20th of December, 1873, an amended complaint was filed, entitled, “ New York Supreme Court, in and for the city and county of New York.”

On the 13th of January, 1874, the appellant signed the following stipulation: “ I consent to receive a new amended summons and complaint in this action, without objection that the complaint has been once amended; and I consent that the plaintiff’s attorney may at any time, upon this stipulation and without further notice, enter an order striking out from all papers on file in this action the words, ‘ of the city and county of New York,’ in the title of the court, and inserting the words, ‘of the State of New York.’ ” On the same day, an order was entered in conformity with the provisions of the stipulation.

Judgment of foreclosure and sale having been rendered in the action, the premises were sold at public auction by a referee, on the 28th of May, 1874, and the appellant, at said sale, became the purchaser of the same, and thereupon signed the terms of sale set forth in the case. He subsequently objected to taking title under the foreclosure, on the grounds: 1st. That the defendant, Sophia B. Church, was made a party, and was a necessary party to the action, but was not served with process, and had not appeared, and was in no way bound by any of the proceedings, or the decree.

2d. That the action was commenced originally in the Supreme Court of the city and county of New York, and that there was no such court known to the Constitution or laws of this State.

3d. That there was no proper affidavit of regularity attached to the judgment roll — no affidavit showing services on all of the defendants, or the appearance or want of appearance of all.

4th. That no notice of sale was served.

By referring to the admissions contained in the case, it will be seen that the last two objections are dependent entirely upon the question, whether Sophia B. Church was' ever properly brought before the court; and that they are, therefore, but amplifications of the first objection.

As to the second objection, it is sufficient to say that the alleged defect was cured by the stipulation of the appellant, and the order amending the summons and complaint pursuant thereto.

The only question left in the case therefore is, whether, as the Summons was not served upon the wife personally, the appellant can, on that account, object to completing his purchase. We do not think he can. The only interest which the wife had in the mortgaged premises, was an inchoate right of dower. In Leavitt v. Cruger, where the bill was filed to foreclose a mortgage executed by husband and wife, the husband only was served with process, and the chancellor held that the husband was bound to appear and answer jointly for himself and wife, unless he showed a sufficient excuse, and that service of a subpoena on the wife was only necessary when the proceeding was against her in respect to her separate estate. This rule has not been changed by the Code.

The inchoate right of dower of the wife was an interest resulting from the marital relation, and did not form a part of her separate estate. Furthermore, as the appellant was the purchaser on the sale, and his wife would again become vested with an inchoate right of dower in the premises, upon the execution and delivery of the referee’s deed to him, I do not see how the defendant can take this objection. No injustice is done to the wife, and certainly no wrong to the defendant, who, knowing all the facts upon which he now bases his objections, voluntarily became a purchaser. If these views are sound, the fact that the wife was not a resident of this State when the action was commenced, does not affect the case.

We are therefore of opinion that the order appealed from should be modified, so as to deny the appellant’s motion, with costs; and, as modified, the order is affirmed, with costs and disbursements.

Davis, P. J.:

There are no merits in the appellant’s case. He purchased the premises with full knowledge that his wife had not been personally served, but that service of the summons had been made on himself for her. He is an attorney, and appeared in the action for himself, and not for his wife; but it is admitted that Mrs. Church had no interest in the premises, except an inchoate right of dower. She was a necessary party to foreclose her contingent interest; but the former practice in such cases was to serve the husband for the wife, and it was his duty to protect her interest.

An inchoate right of dower does not belong to the wife, as her separate estate. It is a mere incident to her husband’s title, and therefore, service upon him for her, is probably good service under the present system of practice. However this may be, the defendant knew, when he made the purchase, that the service had been made in that manner only, and he must be deemed to have purchased with full knowledge of the defect of which he now complains. Besides, the only effect of the omission to make personal service would be, at most, that the inchoate right of dower of Mrs. Church would not be cut off by the sale ; but as the purchase and taking of the title by defendant would ipso facto restore the same inchoate right in the wife, it is of no practical importance whether the foreclosure had or had not extinguished it.

The objection to the title of the court was not of the slightest moment. The words, of the city and county of New York,” would have been, at any stage, stricken out on suggestion of either party; besides, it appears that they had been stricken out, on stipulation of defendant.

It is suggested that the order of the court below is too stringent in form, in directing an absolute completion of the purchase. The court below would have made the correction on application, and there was no occasion to appeal for that purpose. The modification may now be made to the order, simply denying the motion with ten dollars costs.

The order, as so modified, should be affirmed, with ten dollars costs of this appeal, besides disbursements.

Daniels, J., concurred.

Ordered accordingly.

       1 Paige, 431.

      Foote v. Lathrop, 58 Barb., 185; Eckerson v. Vollmer, 11 How. Pr., 43.

         Cases, supra.

       Mills v. Van Voorhies, 20 N. Y., 412.

       Ferguson v. Smith, 2 John. Ch., 139; Leavitt v. Cruger, 1 Paige, 421; Eckerson v. Vollmer, 11 How. Pr., 42; Foote v. Lathrop, 53 Barb., 183.

       11 How. Pr., 42; 63 Barb., 183, above cited.


author: Davis, P. J.:

text:
    LESTER WALLACK, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, and THE SOCIETY FOR THE REFORMATION OF JUVENILE DELINQUENTS IN THE CITY OF NEW YORK, Appellant.

      Theaters—power of legislature to require licenses to be taken out for— chapter 836, Laws of 1872 — Corporation—when public —power of legislature to give money to.

    The legislature has power to regulate places of amusement, and may require them to be licensed by the proper authorities. Such legislation is sustainable as a legitimate exercise of the taxing power of the State, and also as a part of its police regulations.
    In order to enforce its prohibitory legislation, the State may authorize any person to institute suits, either in his own name or in the name of the people of the State of Hew York, to recover penalties for violations of such laws.
    Chapter 836, Laws of 1872, requiring the managers or proprietors of places of amusement in the city of Hew York to procure licenses from the mayor as therein provided, and requiring him to pay over the amounts received by him to the treasurer of the society for the reformation of juvenile delinquents in the city of Hew York for its use, is constitutional and valid. _ Even if the direction as to the disposition to be made of the license fees were invalid, the other provisions of the act would not be affected thereby.
    The powers of the society for the reformation of juvenile delinquents, its purposes, and the statutes relative thereto, considered.
    The right of the legislature to direct the payment of the public moneys to an institution, depends upon the uses of such institution, and not. upon the character of the person or body who exercises them.
    The appropriation of the license fees, by the act of 1872, to the said society is not a gift to a private charity, but a provision for public use, lawfully administered through that corporation, and is clearly within the constitutional power of the legislature.
    In view of the objects of the said society, the legislature might appropriate the public moneys to it as a mere gift, and for its private use.

      Wire Depa/iiment v. Noble (3 E. D. Smith, 440) and Mre Department v. Wright (id., 453) followed; People v. BateheUor (53 ÍT. Y., 128) distinguished.
    Appeal from an order of the Special Term, continuing an injunction.

      Edmund Randolph Robinson, for the appellant.

      A. Oakey Hall, for the respondent.
   Davis, P. J.:

The appeal in this case is from an order of the Special Term, continuing, pendente lite, an injunction restraining “ the defendants, and each of them, from beginning or prosecuting or instituting against the plaintiff in the above entitled action, any of the proceedings which are provided by any of the sections of chapter 836 of the Laws of 1872, of this State, referred to in the complaint in this action, and from enforcing or imposing, or attempting to enforce or impose, any penalty or penalties against the said plaintiff, under or by color of any of the provisions of said chapter, by suit or otherwise, and from applying for any injunction to restrain the said plaintiff from conducting or carrying on the business and place of amusement for the performances in the complaint mentioned.” '

The act referred to is the act entitled, An act to regulate places of amusement in the city of Hew York.” The first section of the act declares that it shall not be lawful to exhibit to the public, in the city of Hew York, the various entertainments and performances therein mentioned, without first having obtained “ a license for the place of such exhibition,” as thereinafter provided. The second section empowers the mayor to grant such license on receiving for each license so granted, before the issuing thereof, the sum of $500; and imposes a penalty of $100 for every exhibition or performance without such license, and authorizes the Society for the Reformation of Juvenile Delinquents to prosecute for such penalty, in the name of the people of the State of Rew York.

The third section subjects the licenses granted by the mayor, to be revoked upon a hearing before a judge or justice of any court of record of the city, on summary proceedings.

The fourth section provides that “ upon granting every such license authorized by this act, the said mayor shall receive from the person to whom the same shall be granted, the amount payable for said license, as above provided, which amounts, as respectively received by him, shall be paid over to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of Rew York, for the use of said society.”

The sixth section declares the violation of any of the provisions of the act to be a misdemeanor, punishable on conviction by fine or imprisonment, or by both.

The seventh section declares it to be the duty of the police and other officers to arrest and convey persons violating the provisions of the act, before any magistrate having jurisdiction of the offense, to be dealt with according to law. And the eighth section provides, that it shall be lawful for the Society for the Reformation of Juvenile Delinquents in said city, to apply to the Supreme Court for an injunction to restrain any person from opening any theater, circus, or building which he shall open or advertise to open, until he shall have complied with the requisitions of the acts, in obtaining such license; which injunction may be allowed úpon a complaint to be made in the name of said society.

The chief object of this act is to provide for the regulation of places of amusement in the city of EewTork, by placing them under the control of the public authorities, through a system of licenses to be granted by the mayor on the payment of a fixed fee, subject to revocation in summary proceedings before a judge or justice of a court of record, and sanctioned and enforced by pains and penalties, both civil and criminal, and by the restraints of an injunction to prevent the opening of such places without license.

There is nothing new in the system of regulating such places by license. In all its essential features, it has been applied by special statute to the city of New York for upwards of forty-five years; and the same or similar powers have been conferred upon the municipal authorities of the incorporated cities and villages of the State by their respective charters, and upon the authorities of the several towns of the State by general laws reaching back to the earliest history of its legislation. Laws of this character are sustainable upon two grounds: first, as a legitimate exercise of the taxing power of the State; second, as a part of the police regulations of the State.

It will be difficult to find any authority in which the power of such regulation and restraint by license, has been denied to the state or federal legislature on constitutional grounds, when exercised within their appropriate jurisdiction.

In our judgment, the constitutionality of the act of 1872 does not at all depend upon the validity of the disposition of the fees to be received by the mayor. That is a question which legitimately arises after the license fee shall have been paid to him by the person taking out the license, and in which such person has no greater interest than any other citizen who is a member of the municipal corporation. It is a question properly between the city and the Society for the Reformation of Juvenile Delinquents; and, if it be true that the legislature has not power to provide that the mayor shall pay over such fees to the treasurer of that society, pursuant to the directions of the act of 1872, the consequence is, that it is his duty to refrain from doing so, and to pay them into the city treasury.

In either case, the obligation to take the license before opening the theater or other exhibition, and to pay to the mayor the prescribed fee, remains in perfect vigor. Nor is this affected by the fact that authority is given to the society to commence an action in its own name to restrain the opening of exhibitions without license. That is a power which may be conferred by the legislature on any citizen' or person, as a means of more stringently enforcing its laws of prohibition. And the same thing is true of the provision which authorizes the society to institute suits at law m the name of the people of the State, to recover penalties for violations of the law. Authority of that kind can be legitimately conferred on any person, on such terms as the legislature chooses to dictate; and the- disposition of the penalties recovered, is clearly within the sound discretion of the legislature. Frequent examples of such legislation may be found in the statutes. Whether they are discreet or provident, or not, is for the legislature alone to judge; but no one has, in any case that has fallen under our notice, questioned their constitutionality.

These remarks, it is to be observed, are limited to those sections of the act which are aimed at the offense of violating its provisions, and which become operative only upon such violation or threatened violation.

We are of opinion therefore, that the provisions of the act of 1872, requiring licenses to be taken out, and fees to be paid to the mayor, and providing pains and penalties, civil and criminal, for violations of the obligation to take out licenses, are valid and constitutional; and that it was error in the court below, to hold them to be otherwise, because of the supposed invalidity of the directions of the act touching the disposition of the license fees; and we do not think that such disposition is so mingled with the scheme of the act, that both must stand or fall together. This we think is illustrated by the point made by the learned counsel for the respondent, as to the effect of the charter of 1873. He insists that a provision of that charter requires the license fees, when paid to the mayor under this act, to be paid into the treasury for the use of the city. If that be correct, the act of 1872 is so modified thereby, that the question of the illegality of the direction to pay the fees to the treasurer of the Society for the Reformation of Juvenile Delinquents, is out of the case; and nothing is left but a system of licenses and fees exclusively for the public benefit, sanctioned by provisions for civil and criminal remedies for violations of the act, to be enforced by the police and by designated persons. Such a system we think is clearly valid. By taking out the prescribed license, every person, otherwise obnoxious to the penalties, can shield himself against them; but he has no right, by attacking the penalties in an action to restrain their enforcement, to shield himself against the obligation to take the license.

But the more interesting question of this case is as to the validity of the provision requiring the mayor to pay over the license fees to the treasurer of the society. It is claimed that this is the imposition of a tax for the benefit of a private corporation: or, as succinctly stated by the learned justice at Special Term, an act to compel certain classes to support a private society that may, if it see fit, do the work of the State.”

The true question, however, is, as it seems to us, whether the legislature has power to appropriate and donate to the society in question, the fees or taxes derived from licenses which it sees fit to impose for the purpose of regulating and restricting places of public amusement of the kind named in the act. The exercise of this power by the legislature is certainly not startling for its novelty. Substantially the same provisions of appropriation to this society are found in chapter 302 of the Laws of 1829; they are repeated in chapter 13 of the Laws of 1839, and renewed in the act of 1872, now under consideration. So that more than forty-five years have elapsed since such license fees have been one of the sources of revenue to the society, without any question being raised in the courts as to the constitutionality of the several acts. This fact is not a refutation of the position of the plaintiff’s counsel, for no age can ripen into constitutional law a violation of the Constitution; but it is an argument that should induce courts to be sure of standing on very solid ground, before overturning enactments sanctioned by such long continued and unquestioned exercise.

The force of the objection seems to depend upon the character of the donee. If the act directed the license fees to be paid into the State treasury, or the treasury of the city, or to be applied to maintain the police, or to maintain prisons under the control of public officers, it seems to be conceded that the disposition of the fund would, by no reflective influence, taint the act with the odor of unconstitutionality. In view of this argument, it may be important to inquire, what is the true character of the society for the reformation of juvenile delinquents in the city of Hew York. That society was incorporated by an act, passed March 29th, 1824. It was clothed with the ordinary powers of a corporation, such as perpetual succession, the capacity of suing and being sued, of having a common seal, and of purchasing, holding and conveying estate, real or personal, for the use of the corporation, provided that its real estate should never exceed the yearly value of $10,000, nor be applied to any other purposes than those for which the incorporation was formed. Its estate and concerns were to be conducted by a board of thirty managers, to be elected yearly “ by the subscribers to the association; ” and it was declared that no manager should receive any compensation for his services. Power was given to the managers, at their discretion, to receive and take into the house of refuge, to be established by them, “ all such children, who shall be taken up and committed as vagrants, or convicted of criminal offenses, in the said city, as may, in the judgment of the Court of General Sessions of the Peace, or of the Court of Oyer and Terminer, in and for the said city, or of the jury before whom any such offender shall be tried, or of the police magistrates, or of the commissioners of the alms-house and bridewell of the said city, be proper objects; ” and to place such children, during their minority, at employments, and cause them to be instructed in such branches of useful knowledge, as might be suitable to their years and- capacity, with power also to apprentice them to proper trades, in accordance with the provisions of the law on that subject; and to make by-laws for the regulation and management of the estate and concerns of the corporation, and for the management, instruction, discipline and disposition of such children, while in the house of refuge or under their care, not contrary to law; and to appoint officers, agents and servants to transact the business of the corporation, and designate their duties. The managers were required to make annual reports to the legislature and the corporation of the city of New York, of the number of children received, the disposition made of them, their receipts and expenditures, and, generally, of all their acts and proceedings.

The act was required to be construed benignly and favorably in all courts and places, and was subjected at any time to be altered, modified or repealed by the legislature.

By chapter 24 of the Laws of 1826, the act was amended so as to provide that the managers shall receive and take into the house of refuge established by them in the city of New York, all such children as shall be convicted of criminal offenses in any city or county of this State, and as may, in the judgment of the court before whom any such offender shall be tried, be deemed proper objects; ” and the same powers and duties were conferred and required, as in respect of the children embraced in the original act; and the sheriffs of the several counties were allowed compensation for transportation of juvenile delinquents, the same as for transporting convicts to the State prison, to be paid by the supervisors of the several counties.

By the act of April 29, 1829, a fund was created, payable by the commissioners of health, out of moneys received for the use of the Marine Hospital, to the treasurer of the society, in aid of its purposes.

By the act of April 16th, 1830, the governor of the State was empowered to direct the agent of either of the State prisons, to convey convicts, under seventeen years of age, to the house of refuge, there to be confined according to the rules and regulations of said house of refuge.

By chapter 186, of the Laws of 1831, an additional fund was directed to be paid to the society, by the treasurer of the city of New York, out of the fund for the support and maintenance of the poor, derived from a duty on the sale of liquors and the licensing of inns and taverns; and, by chapter 13, of the Laws of 1839, the proceeds of licenses of theatrical and equestrian performances, were directed to be paid over in support of the society.

By chapter 100, of the Laws of 1840; 460, of the Laws of 1847; and 608, of the Laws of 1853, the society is required to receive and safely keep criminals under the age of sixteen years, convicted in this State of offenses against the laws of the United States.

■The buildings of the society were erected at public expense, on public property, as provided by chapters 254, of the Laws of 1851, and 539, of the Laws of 1855; and by chapter 252, of the Laws of 1847, and chapter 386, of the Laws of 1851, the school of the society is entitled to participate in the apportionment of the public school moneys, and "is subjected to the general supervision of the board of education of the city of Hew York.

Under the act of May 8, 1846, authorizing the establishment of a house of refuge for juvenile delinquents in western Hew York, and various acts afterward passed, the territory from which juvenile convicts are to be sent by the courts to the house of refuge of the society in Hew York, has been diminished; and other laws, establishing houses of refuge on similar foundations in the city of Hew York, and in the city of Buffalo, have clothed them with power to receive and take care of a portion of the delinquents, who, under the laws above cited, would have been consigned to the care of the society in Hew York. But all these enactments have left intact the general powers and duties of the corporation under consideration. For nearly half a century, from time to time, the legislature has made direct appropriations for the maintenance of the house of refuge of the society, and it has been a1 •all times subject to the visitation of that body.

This review of the legislation creating the Society for the Reformation of Juvenile Delinquents in the City of Hew York, and oi the subsequent legislation touching its duties and powers, shows clearly the true character of the institution. It is in no sense £ trading corporation. It has neither capital, nor stock, nor stock holders, and it is incapable of making either profits or dividends or carrying on trade or manufactures for the private emolumen of its subscribers or managers, or of any person* Its purposes anc objects are exclusively public, and if, in any sense, it may justl; be called a private corporation, it is certainly such only for publi uses. Its connection with the administration of criminal justic in the State, is just as clear and well defined as is that of any o the public prisons managed by commissions, or by public officers; the only difference being, that, in respect of the class of offenders who may be committed to its care, the legislature has seen fit to create a body corporate, with all the official functions necessary to their restraint, discipline, punishment and reformation which could be used by the managers of jails and prisons if the offenders had been committed to their custody; to which have been super-added, in tenderness to the youth of such offenders, means supposed to be adequate to rescue them from the path of crime, and restore them to a life of usefulness and virtue.

We know of nothing in the Constitution of 1821, under which this society was incorporated, to prevent the legislature from creating a body corporate for such purposes; nor do we see why such a corporation should not be deemed, in considering the question now before us, as much a body politic, as a municipal corporation clothed with the same functions, or a board of commissioners whose authority and powers are the same. But this is an immaterial question, so long as the uses of the institution are altogether public, and in no sense private. It is the uses that must control, and not the character of the person or body who exercises them, when the question of the right of the legislature to appropriate public moneys is challenged on such a ground as that under consideration. We think it is perfectly manifest, that the license fees appropriated by the act of 1872, are given exclusively to uses, which, in every sense, are as public as those of any other branch of the administration of criminal justice.

It is by no means necessary to establish, for the purposes of this case, that the legislature has power to make donations to public or private charities; but only to maintain that it may provide for the administration of criminal justice toward youthful offenders, for whom reformation is more desirable than severe punishment, in a manner different from that to which old and hardened criminals are subjected; and, for that purpose, may create instrumentalities which to it seem-best adapted to accomplish the end. Whether such instrumentalities be public officers or boards of commissioners, or a municipal or other body corporate, they are engaged, when lawfully set in operation, in the administration of a portion of the public functions and uses for which the government itself is created; and they ought not to be let down to the rank of trading corporations, organized for traffic and individual gain, for the purpose of upholding fine-spun theories of constitutional law. The idea that the appropriations made by the legislature to such bodies are charities to private corporations for personal uses, has no basis in fact, and can have none in law when it is considered that the uses to which the appropriation can lawfully be applied are a part of those for which the government itself was created, and is bound in some form to discharge.

Our conclusion is, therefore, that the appropriation of the license fees, by the act of 1872, to the Society for the Reformation of Juvenile Delinquents, is not a gift to private charity, but a provision for public uses, lawfully administered through that corporation, and is clearly within the constitutional power of the legislature.

It is a pertinent and illustrative fact, that in the radical restrictions to be imposed on the legislature by the amendments to the Constitution adopted at the late election, and to take effect on the first of January next, the power we have been considering is expressly retained. Section 10 of such amendments is in these words : Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper.”

But if the Society for the Reformation of Juvenile Delinquents is to be regarded as a mere private "corporation, and the appropriation of the act of 1872 as a mere gift to such a corporation for private use, yet, in view of the objects of the society, it is clearly sustainable by numerous authorities.

The cases familiarly known as the Fire Department cases,” seem to us controlling upon this question. In those eases the question was as to the constitutional validity of the acts of the legislature, which required the agent of every foreign insurance company or underwriter, to pay to the treasurer of the fire department two per cent of all premiums for insurance, made or agreed to be made in the city of ¡New York, and to execute a bond to such treasurer that he will make such payments. A penalty of $1,000 was imposed for each insurance made before executing such bond, to be recovered by the fire department; and other heavy penalties were imposed for violations of the act, which were to be recovered in the name of the people of the State for the use of the fire department. The fire department was a corporation created by the Laws of 1798; its origin and history are fully traced in the opinion of the court, in The People v. Pinckney. Its objects and purposes, as defined in its charter, are “ for the relief of such indigent and disabled firemen and their families as may be interested therein and who may, in the opinion of a majority of the trustees, be worthy of assistance.” The cases were elaborately and ably argued; and the questions raised seem to have been identical with those urged upon us. The validity of the acts was sustained first at Special Term, by Woodruff, J., and again at General Term by Ingraham, Daly and Brady, JJ., and their decision was finally unanimously affirmed by the Court of Appeals, as stated m note to the report. If we doubted the correctness of this decision we should not deem ourselves at liberty to disregard it. It is on nearly every point presented, on all fours with the case before us.

But it is urged that the authority of those cases is shaken by the late case of The People v. Batchellor. The question in that case was, whether a mandatory statute compelling a municipal corporation, without its own consent, to issue its bonds and exchange them for the stock of a railroad company, was valid. It was held that the municipal corporation could not be compelled to become a stockholder in the railroad company, against its own will and consent. We are not able to see that the questions in this case, or in the fire department cases, were involved in or affected by The People v. Batchellor.

The cases on this subject are so numerous that the bare citation of them, is all that can be justified in this place. They establish that the power of the legislature, in the absence of constitutional restriction over the object of taxation, is supreme; that the - whole subject is exclusively within legislative discretion, and that the legislature is to determine the subject and the class to be taxed, the district within which the tax is to be laid, the manner of its collection, and the purpose to which, when collected, it shall be applied. And they establish, also, that the constitutional inhibitions against the taking of private property for public use without just compensation, and against the deprivation of life, liberty or property without due process of law, are not limitations upon the taxing power. The absence of restrictions in this State has led to the adoption of the amendments to the Constitution already referred to, in order to guard against abuses of this absolute legislative discretion. They will operate, it is to be hoped, with signal benefit to the people; but however desirable such restrictions might be, it was never in the power of the courts to impose them, even in cases where the abuse of the discretion was revoltingly apparent. We may enjoy, but we cannot otherwise utilize the admirable argument of the learned counsel for the respondent, in defense of theatrical exhibitions, such • as those conducted by his client. It is not our duty to defend the justice or wisdom of the law which he seeks to condemn. It is enough for us that the legislature has power to enact it, and in its discretion has seen fit to do so. In such case, our duty to uphold and enforce it is very simple and plain. Yet, it might be no difficult task to show that the system of licenses, and its consequent preclusion of unworthy exhibitions, from which license is or ought to be withheld, is greatly advantageous to such establishments as the plaintiff’s, by preventing the degradation of all such performances in the public estimation, which would be quite certain to grow out of the promiscuous and unrestrained exhibitions which would spring up in the absence of legal restrictions.

The order of the court below must be reversed, and the injunction dissolved, with ten dollars costs of this appeal besides disbursements, and ten dollars costs of the motion in the court below.

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.

       Laws of 1829, chap. 302, §4; Laws of 1839, chap. 13; 5 R. S. (Edm. ed.), p. 212; Laws of 1862, chap. 281.

       Providence Bank v. Billings, 4 Peters, 514; Nathan v. Louisiana, 8 How. (U. S.) R., 73; License Tax Cases, 5 Wallace, 462, 475; Savings Bank Cases, 6 id., 611; Lunt’s case, 6 Greenleaf, 412; Ingersoll v. Skinner, 1 Denio, 540; People v. Coleman, 4 Cal., 46; Raquet v. Wade, 4 Ham., 107; State v. Stevens, 4 Texas, 137; The Germania v. The State, 7 Maryland, 1; 9 Texas, 369; Boston v. Schaffer, 9 Pick., 415; City of New Orleans v.North, 12 La. An., 205; 5 Wallace, 474; Fire Department v. Noble, 3 E. D. Smith, 452; People v. Lawrence, 41 N. Y., 137.

         Fire Department v. Noble, 3 E. D. Smith, 452; Metro. Board of Excise v. Barrie, 34 N. Y., 657; License Cases, 5 How. (U. S.), 589; Cooley v. Board of Wardens, 12 id., 299; State v. Almond, 2 Hous., 612; Commonwealth v. Stodder, 2 Cush., 562; Nightingale’s case, 11 Pick., 168; Village of Buffalo v. Webster, 10 Wend., 99; Bush v. Seabury, 8 John., 418; Slaughter-house Cases, 16 Wallace, 62; Commonwealth v. Colton, 8 Gray, 488; Tanner v. The Village of Albion, 5 Hill, 121.

       See 5 R. S. (Edmonds’ ed.), p. 206.

       5 R. S. (Edmonds’ ed.), p. 208.

       Reported in 3 E. D. Smith, 440, 453.

       32 N. Y., 377-388, et seq.

       3 E. D. Smith, p. 440.

       Davies’ Laws of the City, p. 392.

       53 N. Y., 128.

      1 Kent’s Com., 441; Thomas v. Leland, 24 Wend., 65; People v. Mayor, 4 Coms., 420; The Fire Department case, 3 E. D. Smith, 440; Guilford v. The Supervisors, 3 Kernan, 143; Brewster v. Syracuse, 19 N. Y., 116; Matter of Trustees, N. Y. P. E. School, 31 id., 583; Darlington v. The Mayor, 31 id., 190; Howell v. Buffalo, 37 id., 267; Litchfield v. Vernon, 41 id., 123; People v. Lawrence, 41 id., 137; People v. Harlem Railroad (see opinion in this case infra. —Rep.); People v. Flagg, 46 N. Y., 404.