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    Frank W. Elwood, Resp’t, v. The City of Rochester, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Title—Cloud ok—Action to remove—When maintainable.
    In an action to remove a cloud on title, to entitle the plaintiff to the relief sought, it must he made to appear that the proceedings by which an alleged apparent lien is imposed upon the land are regular upon their face, but by a defect disclosed by evidence outside of the record are rendered irregular and invalid, and also that the defect would not necessarily appear in proceedings to enforce the lien.
    2. Eminent domain—Private property—What necessary when taken for public use.
    It is a general rule where the sovereign power of taking private property for public use is delegated to any agency, that all the prescribed conditions to the exercise of the power must be strictly complied with.
    8. Rochester—Charter of tile city of—§ 214—Assessment.
    The city charter of Rochester, section 214, Laws 1880, chapter 14, modifies this rule somewhat, providing that all assessments made for improvements in said city, notwithstanding any irregularity, omission or error in the proceedings relating to the same, shall be valid and effectual, and that all questions concerning the same shall be liberally construed to sustain such proceedings. Held, that this provision applies only to irregularities, omissions and defects of a formal nature not affecting the substantial merits. That errors of substance, such as the adoption of a vicious rule or principle in making an assessment, or a clear violation of an express requirement of law prescribing and defining what property is to be assessed or regulating the amount of the assessment to be imposed, are not touched by this provision.
    4. Same—§ 168, sued. 8—Common council—Power to open streets.
    By section 168, subdivision 3, the common council are vested with certain powers, among which is the power to lay out and open any street in said city whenever the council shall judge the public good requires the same. Held, it was not necessary under that provision that the council should expressly declare its .judgment by resolution or otherwise, that the proposed street was required by the public good. That the only effect of the provision was to leave it to the judgment of the council to judge when the public good required action on their part, and that the exercise of the power was of itself sufficient evidence that they regarded such action as called for by the public good.
    5. Same—§ 169—Value of property required to obtain benefit of provision.
    At the time of the commencement of proceedings to lay out a street in the city of Rochester, the charter, section 169, provided that no street should be laid out by the common council so as to run across the site of' any building at the time actually erected, of the value of §5,000, without, having obtained the consent, in writ ng of the owners, or without having purchased the building. The limitation of value was by an amendment, which took effect January 1, 1883, put at $50,000. See Laws 1881, Ch. 343, § 9. Prior to the date on which this amendment went into effect, the proceedings had gone as far as the appointment of commissioners to appraise the damages of the owners’ of lands proposed to be condemned, and the commissioners had entered upon their duties, but had not made their report. Subsequent to that date they made and filed their report, fixing the amount of damages to which the owners were entitled, the report was confirmed, and the owners were paid their damages, and executed conveyances of their property to the city: Held, that there having been no actual interference with the possession or rights of the land owners until after January 1, 1883, after that date the buildings were not within the limitation, and that the subsequent proceedings to condemn being a purchase in a mode provided by the charter, the case was not within the prohibition of the section.
    6. Same—§§ 170 and 173—Determination as to what part of expense TO BE PAID BY ASSESSMENT.
    It was provided by sections 170 and 172 of the charter, that whenever, by order of the common council, any new street should be laid out, opened or worked, it should be their duty to determine what portion, if any, of the expense ought to be paid from the public treasury, and what, if any, by loc.d assessment, and to direct that the whole expense be assessed upon a 1 the lots and parcels of land to be benefitted thereby, in proportion to the benefit each should derive tlicrefiom, and that previous to their determination to make any public improvement, the expense of which should be defrayed in wh :le or in part by local assessment, they should cause an estimate toffie made, and by an entry in their minutes, describe the portion of the city deemed proper to be assessed for the expense of such improvement: Held, that an ordinance stating certain port ons of the city as deemed to be benefitted and proper to be assessed for the whole expense of the improvement, and ordering it to be assessed thereon, was a substantial compliance with the terms of the charter.
    7. Same—Provision as to payment of assessment—Wiiat sufficient.

      Held, that the ordinance directing how the expense should be paid need not direct that it be assessed upon all the lots benefitted, that it was suf ficient that the direction was contained in the ordinance directing the assessment to be made.
    8. Same—Direction that expenses be defrayed by assessment and not BY PUBLIC MONEY— IV HAT IS.

      Held, that a direction in the ordinance that the whole expense of the improvement be assessed upon the portion of the city described therein, was a sufficient expression of the determination of the common council that no part should be borne by the city treasury.
    9. Same—Decision of the common council conclusive as to benefit.
    The decision of the common council that the laud.assessed is benefited by the improvement is conclusive.

      10. Same—§§ 181 and 179—Power to set aside report of commissioners —Power to borrow.
    The charter, by section 181. provides that whenever it should he necessary the common council might borrow the whole or any portion of the damages for lands necessary for the improvement upon the note or other obligation of the city. It also provides, by section 179, that the common council may set aside the report of the commissioners appointed to appraise Hie damages of the land owners and abandon the improvement at any time before the final confirmation of the assessment roll Held, that the power to borrow was unlimited as to time and might be exercised “whenever necessary.' That it was discretionary with the common council to determine when it was necessary. That the action of the council in paying the damages was an undoubted election that the im-, provement should not he abandoned.
    11. Same—Power to assess after completion of improvement.

      IIId, that there was no charter provision preventing the common council from levying an assessment after the completion of an improvement.
    12. Same—§§ 195 and 196—Provisions of

      Held, that sections 195 and 196 limit the time for making payment of the expense of opening a public street where such payment is to he defrayed by local assessment to four months after the confirmation of the assessment roll, hut do not prohibit payment before confirmation; and prohibit the city authorities from entering upon lite condemned lands until payment is made, but provide that tile city shall not become obligated to lake or pay for such lands until confirmation of the assessment roll.
    13. Same—§ 172—Estimate—What included in.

      Uekl, that section 172 of the city charter, providing that no contract should be let for any improvement at a price greater than the estimate thereof made, refers only to the expense of the work and does not include damages for land taken.
    14. Same—§ 190—Assessment—What properly included in

      Held, that the validity of the assessment was not affected by the fact that it included the fees of the commissioners, the charter (t$ 190) providing that the assessment should include the estimated expense of the improvement, the amount of the damages and a;l the costs of the city in the proceedings.
    15. Same—What property assessable.

      Held, that the only property assessable for local improvements by the provisions of the city charter was “lots and parcels of land.” That the term land was used in its ordinary and popular sense, and did not include telegraph poles, etc.
    16. Assessment—Constitutional law—Assessment cannot be laid on Erie Canal.

      Held, that state constitution, article 7, section 6, prohibiting the legislature from selling, leasing, or otherwise disposing of the Erie canal, withheld from the legislature the power of imposing any tax or assessment upon it, which might result in its being sold or released.
    17. Same—What improper method of laying assessment on land

      Held, that the common council having defined the territory specially benefilted, and upon which the whole expense of the improvement should be assessed, the commissioners had no authority to proceed upon the assumption that a portion only of such territory would derive a special benefit from the improvement, or that different portions of such territoiy should he assessed according to different rules.
    18. Same—Rule for determining benefit derived from improvement
    The general rule for determining the amount of benefit derived from an improvement is to ascertain the market value of the property with the improvement and without, the excess of the value with the improvement over that without, is taken as the benefit. In estimating the value of each lot, regard should be had to the buildings and other improvements upon it.
    19. Same—Invalid assessment—May be removed as cloud on title.

      Held, that an invalid assessment being an apparent lien on land, the owner was entitled to have it removed.
    Appeal from a judgment entered on the report of a referee.

      John N. Beckley, city attorney, for app’lts; Oscar Craig, for resp’t.
   Smith, P. J.

The judgment vacates an assessment imposed by its defendant, the city of Eochester, upon the land of the plaintiff, to defray in part the expense of opening a new street in said city, called Church street, and relieves plaintiff’s said land from any future local assessment on account of the expense of opening said street.

In the proceedings which resulted in the assessment in question, the city authorities assumed to derive their power from the provisions of the charter of the city respecting the laying out and opening of streets and the levying of assessments to defray the expense thereof, including damages for land taken for the purposes of the street. The judgment appealed from proceeds upon the ground that the assessment is illegal and void by reason of certain defects in the proceedings, and that the plaintiff’s land is not liable to a local assessment for any part of the expense of opening said street.

The printed case is quite voluminous. Such of the facts as are necessary to a correct understanding of the legal questions presented by the appeal will be stated in connection with the discussion of those questions.

It is to be borne in mind that the action is not a direct proceeding to review the' acts of the city authorities. It is addressed to the equitable jurisdiction of the court, and the relief sought is the removal of an apparent lien on the plaintiff’s land and a cloud upon his title, growing out of the proceedings referred to. To entitle the plaintiff to the relief sought, it must be made to appear that the proceedings are regular upon their face, but by a defect disclosed by evidence outside of the record, are rendered irregular and invalid, and also that the defect would not necessarily appear in proceedings to enforce the lien. Marsh v. City of Brooklyn, 59 N. Y., 280; Guest v. The Same, 69 id., 506.

Eegard is also to be had to the familiar principle applicable to all agencies to whom is delegated the sovereign power of taking private property for public use, that ■ all the prescribed conditions to the exercise of the power must be strictly complied with. This rule has been modified to some extent, in respect to the city of Rochester, by a pro vision in its charter, that all assessments made for improvements in said city, shall be valid and effectual, notwithstanding any irregularity, omission or error in the proceedings relating to the same, and all questions concerning the same, shall be determined in all courts and places liberally to sustain such proceedings, and with reference to the very right of the case, and not strictly. Section 214. That provision, however, has been judicially declared to apply only to 1 ‘ irregularities, omissions and errors ” of a formal nature not affecting the substantial. Hassen v. The City of Rochester, 65 N. Y., 516, 520. Errors of substance, such as the adoption of a vicious rule or principle in making an assessment, or “a. clear violation of an express requirement of law prescribing and defining what property was to be assessed or regulating the amount of the assessment to be imposed,” are not touched by the provision. Id. Keeping these rules in view, we proceed to consider the principal questions raised by the appeal, some of which are of much importance to the city of Rochester and the owners of real estate therein.

By section 168 of the charter of the city (Laws 1880, ch. 14), the common council are vested with certain powers, subject to the restrictions and limitations therein expressed. One is the power to lay out and open any street in said city whenever the council “shall judge the public good requires the same to be done.” Subd. 3. The plaintiff's counsel contends that under that provision, it is a prerequisite to the exercise of the power to lay out a street, that the council should expressly declare its judgment, by resolution or otherwise, that the proposed street is required by the public good; and that as no such declaration was made in the present instance, the proceedings are void. The learned referee so held.

In that, we do not concur. We think that the only effect of the provision referred to, is to leave it to the judgment of the common council to determine when the public good requires action on their part, and that their exercise of the. power is, of itself, sufficient evidence, if any is needed, that they regarded such action as called for by the public good.

The case differs essentially from that of In Matter of the City of Buffalo (78 N. Y., 362), cited by the respondent’s counsel. The charter of Buffalo expressly provided that before exercising the power to take land for streets, the-common council must have declared by resolution the intent to take for a street the lands described in the resolution and that the resolution must have been published as directed in the charter. Here, there is no requirement that the judgment of the common council be declared by resolution, in instituting proceedings to lay out a street. But whenever that body determines to lay out and open a street, and that the lands of any person will be necessary for that purpose, they are required to enter in their minutes a resolution or ordinance declaring such determination, containing a description of the land so deemed necessary, and of the portion of the city which will be benefited by such improvement. That provision was complied with in this instance.

Nor is the case analogous, as we conceive, to those cited by the referee in his opinion, relating to the opening of highways in towns. They are, The Town of Gallatin v. Loucks (21 Barb., 578), and The People ex rel., etc., v. The Commissioners, etc. (27 Barb., 94; S. C., affirmed, 30 N. Y., 470). The statute under which these cases arose provides that in towns no highway shall be laid out through inclosed, improved or cultivated lands, unless certified to be necessary by the oath of twelve reputable freeholders of the town (1 R. S., 514, § 558). Those cases hold that the certificate of the twelve freeholders is a prerequisite to the authority of the commissioners to lay out the road; the certificate of eleven will not suffice, and each of the twelve must have the legal title to real estate. But here the judgment which is to precede the action of the common council is their own, and not that of another body; and, as has been said, the charter does not require that it be expressed in writing, or in any other way than by the exercise of the power, which, of itself, implies that the common council judged the exercise of such power in the particular instance to be for the public good.

A declaration of such judgment, prior to taking action in accordance with it, does not appear to be necessary for the protection of the rights of the individuals or of the public. If the express declaration of such judgment is a prerequisite in any case, it is so in every case, whether the expense of the improvement is to be paid from the city treasury, or by local assessment, and such declaration would not protect the constituents of a minority of the common council from the unjust action of the majority, as suggested in the opinion of the referee, because it could not have the effect to charge the treasury with the expense of an improvement ordered to be defrayed by a local assessment. In view of the legislative mandate that all questions concerning assessments made for improvements in said city shall be determined liberally and with reference to the very right of the case, we are not prepared to say that proceedings taken by the common council under the charter of the city, to lay out and open a street, and levy an assessment to meet the expense thereof, would be void for want of an express declaration by the council that, in their judgment, the street was required by the public good, provided such proceedings were regular and sufficient in all other respects.

When the proceedings in question were commenced, the charter provided that no street should be laid out by the common council so as to run across or over the site of any building, at the time actually erected, of the value of $5,000 without having obtained the consent of the owner of such building in writing, or without having purchased such building. Section 169. By an amendment which took effect on the first day of January, 1882, the limitation of value was put at “ $50,000 ” instead of $5,000. (Laws 1881, chap. 342, sec. 9.) Church street was laid out over the site of one or more buildings, which appear by the evidence to have been of the value, respectively, of $5,000 or over, but none of which is shown to have been of the value of $50,000. Prior to the first day of January, 1882, the proceedings in question had gone as far as the appointment of commissioners to appraise the damages of the owners of lands proposed to be condemned and taken for the street, and the commissioners had viewed the premises and taken testimony, but had not made their report. Subsequently to that date, the commissioners made and filed their report fixing the amount of damages to which the owners of said lands and buildings were respectively entitled, the report was confirmed by the common council, and the several owners were paid their damages, and they executed deeds of conveyance to the city. The referee has found that the several owners were required by the city to execute such deeds as a condition of payment; that the deeds were not delivered voluntarily, and the owners would not have sold their lots and buildings at the sums received, or delivered said deeds but for the compulsory proceedings instituted by the city to take said lands and buildings.

We do not think the proceedings of the common council are invalidated by the provisions of section 169. In the first place, there was no actual interference with the possession or rights of the land owners until after the first day of January, 1882, and after that date, their buildings were not of sufficient value to be within the limitation. The provision of the section was for the protection of the land owners. The adoption of the necessary ordinances for the laying out of the street, without taking any step towards making or opening it, or in any manner invading the possession of the owners, was not within the mischief intended to be prevented by the enactment contained in the section. In the absence of threat, or overt act on the part of the city officials, by way of attempt to take possession and open the street, the land owners had no cause of complaint.

In the next place, the subsequent acquisition of title by the city, although the result of proceedings taken to condemn, was a purchase, in a mode provided by the charter, and consequently the case is not within the prohibition of the section. The finding that the owners did not convey voluntarily, is nothing more than a finding that they acted under the compulsion of valid condemnatory proceedings. If such proceedings were in any respect void as to the owners, the latter were not under compulsion, and their action was in fact voluntary and a waiver of all defects in the proceedings. But whether they acted voluntarily or not, they are not here as complainants. The plaintiff cannot invoke the aid of the provisions of section 169, which are intended as a protection to the land owners only. So far as he is concerned, the case is the same as if each land owner had voluntarily conveyed to the city, without the intervention of legal proceedings to divest him of his title.

The charter provides that whenever, by order of the common council, any new street shall be laid out, opened or worked, it is the duty of the common council to determine what portion, if any, of the expense thereof ought to be paid from the public treasury, and what portion, if any, ought to be paid by local assessment, and to direct that the whole expense to be paid by a local assessment, be assessed upon the lots and parcels of land to be benefited thereby in proportion to the benefit which each will derive therefrom. (Sec. 170.)

And it is also provided that before the common council shall determine to make any public improvement, the expense whereof is to be defrayed in whole or in part by a local assessment, they shall cause an estimate thereof to be made, and shall, by an entry in their minutes, describe the portion of the city which they deem proper to be assessed for the expense of such improvement. (Sec. 172.)

The plaintiffs counsel contends that these requirements were not complied with, inasmuch as the preliminary and final ordinances for the laying out of the street, which directed that the whole expense thereof be paid by a local assessment, and defined the portion of the city which the common council deemed would be benefited by the improvement, did not direct that the whole expense be assessed upon all the lots and parcels of land to be benefited thereby, nor, as the council contends, did they express or imply that the portions defined were all the portions benefited.

The latter objection is answered by quoting the language of the ordinances. The first ordinance contains the following:

_ “Resolved, Further, that the following portions of said city is deemed benefited and proper to be assessed for the whole expense thereof, viz: The entire First ward; also, all that portion of the Second ward bounded on the east by the Genesee river, and on the west by Sophia street, and lying-south of the south line of Center street"”

The second ordinance has the following language: “And the portion of said city which said common council deem will be benefited by said improvement, is described as follows: (Here follows the description above quoted), on which above described portion of the city the expenses of said improvement are hereby ordered assessed.”

In view of the statutory injunction already referred to as to the measure of liberality with which proceedings of this nature, under the charter, are to be construed, we think it is fairly to be implied from the language above quoted that the portion of the city described in the ordinances was deemed by the common council to be the only portion to be benefited by the proposed improvement, and proper to be assessed for the whole expense thereof. The ordinances in that respect follow the language of the charter, and we think they should be regarded as a substantial compliance therewith.

In respect to the objection that the ordinances referred to did not direct that the whole expense be assessed upon all the lots and parcels of land to be benefited thereby, it is to be observed that the charter does not require such direction to be inserted in the ordinance which determines how the expense shall be paid. As chat direction relates exclusively to the distribution of any local assessment that may be ordered, it is enough that it be contained in the ordinance by which the assessment is directed to be made, and that was done in this case. The ordinance of January, 1883, directed the commissioners of assessment “to make an assessment upon all the lots and parcels of land and houses within the portion or part of said city so designated, etc.

We also think that the direction in the ordinance that the whole expense of the improvement be assessed upon the portion of the city described therein, is a sufficient expression of the judgment and determination of the common council that no part of the expense should be borne by the city treasury.

It is contended by the learned counsel for the respondent that the common council erred in not including a large area, and in truth, the whole territory of the city in a public tax for at least a part of the expense of the improvement. The common council were not imperatively required by the provisions of the charter to assess any portion of the expense upon the whole city, but only in case it was, in their judgment, just so to do. (The People v. The Mayor, etc., of Syracuse, 63 N. Y., 291.) And in determining what portion of the city was so benefited by the improvement, as that it should bear the whole expense thereof, they exercised a discretionary power, confided to them by the charter, which cannot be interfered with in this action, unless they went upon a rule wrong in law. (Kennedy v. City of Troy, sup.) Much evidence was introduced before the referee with the view of showing that the premises of the plaintiff were so remote from the projected street, and so situated with reference to it, as that they would not be benefited, but would be lessened in value by the proposed improvement. The testimony consisted entirely of speculative opinions as to the effect which the new street would have in diverting travel from the street in front of the plaintiff’s building, and in lessening the relative value of the plaintiff’s premises, and others, in its immediate vicinity, as compared with cheaper and more remote properties that would be opened up by the new street. Various opinions were expressed by the witnesses. Many thought the new street would injure the plaintiff’s property; others, that it would benefit it. In these circumstances, we do not think the action of the common council in fixing the bounds of the area of benefits, can be annulled by a court of equity. The cases cited by the respondent’s counsel do not authorize such a judgment in this case. In The People v. The Mayor of Syracuse (sup.), a very broad discretion was exercised by the commissioners under a provision similar to the one in hand, yet their action was upheld. In making an assessment for the expenses of opening an alley, they took into consideration the fact that the improvement would remove a large barn building and stable, which, as they stated, was in dangerous proximity to a portion of the property assessed. It was held by the court of appeals that "the advantages resulting from the removal were not so remote and uncertain as that their consideration vitiated the assessment.

In Guest v. The City of Brooklyn (supra), the very forcible remarks of Chief Justice Church respecting the obnoxious features of the prevailing system of assessments for local improvements, were made, as he declared, to enable him to say more impressively that the effective remedy is not with the judiciary. And the judgment in that case was put upon the ground that a court of equity could not interfere with the action of the municipal officers whose proceedings were in question, in the exercise of the discretion with which they were vested, although Judge Church remarked that the facts found indicated “extravagance, irregularity, and to some extent, abuses ” (p. 515).

In Hassen v. City of Rochester (65 N. Y., 516; 67 id., 528), a piece of assessable property within the designated area was intentionally omitted by the assessors, and thus a rule of law was violated. In Le Roy v. Mayor (supra), an assessment for a sewer was imposed upon the owners of a small part only of the houses and lots within the district which would be drained by the sewer. Held, that the owners of all such houses and lots should have been assessed, and that the assessment was made upon a wrong principle. In The People v. The City of Brooklyn (23 Barb., 166) some of the land assessed for the expense of a sewer was so situated, by reason of an intervening tunnel, that it could have no connection with the sewer. It being entirely clear that such land could not be benefited by the sewer, the assessment made thereon was set aside, on certiorari. But in that case it was said that when it becomes a question of fact whether a proposed improvement will be advantageous to the property, the decision of the corporate authorities is .conclusive. In Clark v. Village of Dunkirk (12 Hun, 181; affirmed, 75 N. Y., 612), some of the land assessed for a sewer was lower than the bottom of the sewer, so that it could not be drained into it without a considerable expense and change in the surface of the lots; another portion could not drain into it without crossing the lands of third persons, and certain other portions were assessed at a uniform rate without regard to their distance from the sewer or the expense of connecting with it. For these clear violations of sound rules, the assessment was held to be void. It is obvious that the cases referred to afford no support to the position that a court of equity may relieve land from assessment, where, all proceedings being regular, the only question is whether such land is benefited, and that question is in substantial dispute. In such case, the decision of the. corporate authorities is conclusive, in an action like the one before us. Whether such decision could be reviewed on certiorari, and reversed upon the ground that it is against the weight of evidence, is a question which is not before us and upon which we express no opinion.

Section 181 of the charter provides that whenever it shall be necessary the common council may borrow the whole or any portion of the damages for lands necessary for the improvement upon the note or other obligation of the city. In the present case, after the amount of such damages had been fixed, the common council caused to be borrowed upon the notes of the city the sum of $144,819.13, and out of it paid such damages. That was done nearly a year before the assessment-roll was confirmed. The charter provides that the common council may set aside the report of the commissioners appointed to appraise the damages of the land owners and abandon the improvement at any time before the final confirmation of the assessment-roll. Section 197.

The respondent’s counsel contends that by such action the common council elected to pay for the improvement by public tax, and not by local assessment, or if its action did not amount to such election it vitiated any subsequent, assessments. We do not think that either of those results followed. The power to borrow conferred by the charter is unlimited as to time, and may be exercised “ whenever necessary.” It was discretionary with the common council to determine when it was necessary, and the charter does not require them to give notice before making-such determination. It was also discretionary with them to abandon the improvement within the time limited, or to decide within that time not to abandon it. When the amount of damages was appraised they were as able, for aught that appears, to decide whether or not the improvement should be abandoned, as they could have been at any later period.

Their action in paying the damages was undoubtedly an election that the improvement should not be abandoned, but we fail to see how those who were liable to be assessed for the expense of the improvement were prejudiced by such action. Their liability was not increased by it, nor did it deprive them of any rights which the charter secured to them. All the subsequent proceedings in respect to the assessment, including the giving of notice to persons interested and an opportunity to be heard, were to be had the same as if the damages had not been paid. The charter does not provide for notice or opportunity to be heard upon the question whether the work shall be abandoned. The decision of that question appears to rest in the discretion of the common council. As they, of their own motion, and without notice to any one, may judge when an improvement shall be undertaken, so they, in like manner, may determine when proceedings to that end may be abandoned.

In short, we do not see that there is any thing in the charter to prevent the common council from levying the assessment after the improvement is completed and paid for. We have not overlooked the provisions of sections 213 and 214, providing for the distribution of any excess, and the raising of any deficiency, in the sum realized from the assessments to meet the expenses of the improvement. Under similar provisions applicable to the city of New York, it was once contended that that city could not make animprovement and then lay assessment of the expense upon the property benefited, for the first time, after the improvement was completed. But it was held otherwise. Wetmore v. Campbell, 2 Sandf., 341; Manice v. The Mayor, 8 N. Y., 120; Matter of petition of Roberts, 81 id., 62. It is true that among the provisions applicable to that city was one which authorized the corporation, in all cases where they might ‘1 deem it necessary for the more speedy execution of their by-laws or ordinances, or any of them, to cause all such works as may be necessary for any of the purposes aforesaid, to be executed and done at their own expense, on account of the persons respectively upon whom the same may be assessed.” 2 R. L., 446, § 270. That provision is not in terms contained in the charter of Eochester, but it is provided therein, that whenever the report of the commissioners appointed to appraise damages is finally confirmed, the common council may take the lands and premises specified in such report on paying the amount of damages awarded to the owners. § 180. This we understand to be an express grant of power to take and pay for the lands needed for the improvement, prior to confirmation of the assessment roll, quite as ample as that possessed by the city of New York respecting the execution of work. The action of the common council was in accordance with the provision, it not having been taken until after the report was confirmed.

In one respect, such early action was obviously for the benefit of the persons assessed, as it enabled the city authorities to sell the buildings standing on the lands purchased, in season to apply the avails of the sale in reduction of the sum to be raised by the assessment.

The plaintiff’s counsel contends that sections 195 and 196 of the charter show that where the payment of the expense of opening a public street is to be defrayed by local assessment, such payment must be deferred until the assessments are confirmed. We do not so read those sections. They limit the time for making such payment to four months after the confirmation of the assessment roll, but do not prohibit payment before confirmation; and they prohibit the city authorities from entering upon the condemned lands until such payment is made, but provide that the city shall not become obligated to take or pay for such lands until confirmation of the assessment roll; and that is the extent of their provisions.

The direction in section 191 that the assessors shall set down in the roll the amount of damages, if any, to which any person assessed is entitled by the award of the commissioners, does not militate against the views above expressed. The only parties affected by that direction are the assessed owners of lands taken and the city. The former have no cause of complaint if they receive their damages before they are compelled to pay their assessments; and whenever the common council determine, in their discretion, to pay the damages before confirmation of the assessment such determination is presumed to be in the interest of the city. The provision referred to is to be read in connection with the other provisions of the charter, and it applies when payment is deferred till after the confirmation or making out of the roll.

The plaintiff’s counsel makes the point that the addition of the fees of the commissioners of appraisal to the estimate of $125,000 for the opening of the new street, thereby increasing the amount of the assessment beyond the estimate without the consent or waiver of the owners of the lands assessed, avoids the assessment.

As we read the charter, the only estimate required before entering upon the work of a public.improvement is an estimate of the expense of such improvement, but where the taking of land is necessary, it is not necessary to include the damages and charges therefor in the estimate. Section 172. If we are right in this, the publication of an estimate of the amount of damages to be paid for the land to be taken, was a work of supererogation, and, in respect to that item, the estimate was not a limitation of the amount. The provision of the charter that no contract shall be let for any improvement at a price greater than the estimate thereof made (section 172), refers only to the expense of the work and does not include damages for land taken. The fact, therefore, that the cost of the land exceeded the estimate, does not, as we conceive, affect the validity of the assessment. Nor is its validity affected by the fact that it includes the fees of the commissioners, it being provided by the charter that the assessment shall include the estimated expense of the improvement, the amount of the damages, and all the costs and charges of the city in the proceedings. Section 190.

Certain questions are raised respect A" the action of the commissioners of assessment. The respondent’s counsel contends that the assessment does not include all the assessable real estate within the district designated by the common council, and is therefore void. This contention has reference to -certain water mains and service pipes owned by the city, and also the mains and pipes of certain gaslight companies, and the poles and wires of certain telegraph, telephone and electric light companies. We doubt whether those properties are intended by the charter to be made liable to local assessment for opening streets. That they are within the general designation of real estate, for certain purposes, is conceded. They are embraced by the term “land,” as defined in the statute, which describes property liable to taxation. 1 R. S., 387, § 2, as amended, Laws 1881, chap. 293. But that statute does not relate to local assessments. By the charter, the only property assessable for local improvements is “lots and parcels of land.” Sections 190, 191, 199, 202, 206, 214. The term “land” is there used, we apprehend, in its ordinary and popular sense. In one instance the word “lots” is used alone, to express assessable property. Section 207. Looking at the reason of the thing, it is difficult to say that property of the kind under consideration can be directly benefited by the opening of a street. If the business office of the company owning the subterranean mains, or the poles and wires, is in the vicinity of the proposed street, it may be possible to affirm that such company receives some benefit from the improvement, but the fact supposed does not apppear in this case, nor is the contention of the respondent put upon that ground. The decisions in this state, cited by the respondent's counsel upon this point, relate to property liable to general taxation. We think the property referred to is not assessable for local improvements under the terms of the charter.

The respondent’s counsel contends that the commissioners erred in assessing the lands belonging to the state, occupied by the Erie canal, lying within the territory designated by the common council, at the nominal sum of one dollar, instead of the actual value of the benefit. It was held in the Case of Hassan above cited, on its second appeal (67 N. Y., 528), that under a special provision of the charter of the city of Rochester lands in said city owned by the state are liable to assessment for local improvements, although exempt from general taxation. The land in that case was. a lot having a frontage of several hundred feet on one of the streets of the city. But the provision of the charter-referred to does not extend to the Erie canal or the lands occupied by it, for the reason that by the constitution of the state the legislature is prohibited from selling, leasing or otherwise disposing of the Erie canal (act 7, sec. 6), and consequently that body cannot authorize the imposition of a tax or assessment upon it which might result in its being sold or leased. If the commissioners erred in respect to the land occupied by the canal, it was in taxing it even a nominal sum, but that is an error of which the plaintiff cannot complain.

But in another step taken by the commissioners of assessment, they committed what appears to us a serious error. The ordinance directing the assessment, described as we have seen, the territory which the common counsel deemed benefited by the proposed improvement and which they adjudged should bear the expense of it. The commissioners in making their assessment divided such territory into two districts, one of which they decided would receive a special benefit from such improvement, and the other a general benefit. The first district, which included the plaintiff’s lot, they assessed by apportioning to each lot a sum per foot front, without reference to the value of the buildings or improvements thereon, gradually lessening the amount as they proceeded from Church street, placing the maximum amount upon the lots abutting on Church street and the minimum at the outer limits of that district. In the other district they made a general assessment by percentages on the lots therein, taking the valuations from the last preceding assessment roll for general city and county taxes, making changes of values in accordance with their judgment, and placing different percentages upon the lots fronting on various streets, having reference to their location with respect to the improvement. Those facts appear by evidence aliunde, and are found by the referee. The assessment thus made was confirmed by the common council, and that portion of it which fell upon the plaintiff is by the judgment under review, declared void, properly so, we think. The commissioners adopted a wrong principle, which neither the charter nor the ordinance permitted.

The common council having defined the territory specially benefitted, and upon which the whole expense of the improvement should be assessed, the commissioners had no authority to proceed upon the assumption that a portion only of such territory would derive a special benefit from the improvement, or that different portions of such territory should be assessed according to different rules. The common council, in pursuance of the requirements of the charter, (section 170) had directed that the assessment should be made upon all the lots in the territory deemed to be benefited as near as maybe in proportion to the benefit which each should be deemed to receive thereby. That rule should have been applied uniformly to the entire territory. The arbitrary contraction of the area specially benefited, presumptively increased the assessment upon the plaintiff’s lot and building included, in such area. In The People ex rel., etc. v. The County Court of Jefferson County (55 N. Y., 604), which was a case under certain drainage acts, an assessment which adopted, as a rule, an apportionment per acre, instead of an apportionment according to benefit, as the acts provided, was set aside as erroneous. In Hassan v. The City of Rochester, supra, Lott, Ch. Com., speaking for the whole commission, said that “the discretion or judgment of the assessors was confined to the proportion of advantage, which each parcel of land within the designated district derived from the improvement (p. 520.) That case arose under the charter we are now considering.

The appellant’s counsel is correct in saying that the mere fact that the commissioners designated one portion of the" territory as specially benefited, and the other as receiving only a general benefit is immaterial provided their assessment is made upon a right principle. The-general rule for determining the amount of benefit is a simple one. It is to ascertain the market value of the property, with the improvement and without it. Re Furman Street, 17 Wend., 649; Re William and Anthony Streets, 19 id., 690; Troy and Boston R. R. Co. v. Lee, 13 Barb., 169; People v. Mayor of Syracuse, 2 Hun, 433, reviewed, but on other points, 63 N. Y., 291. The excess of the value with the improvement, over the value without it, is the amount of the benefit. And in estimating the value of each lot, regard should be had to the buildings and other improvements upon it.

The assessment adopted seems to have violated this rule in two particulars. It proceeded upon an essentially different basis of estimate for each of the two districts into which the territory was divided; and in the district deemed to be specially benefited, it adopted the frontage of the lots as a basis of estimate, and disregarded the value of the buildings and other improvements.'

These errors, we think, vitiated the assessment. No reason appears why the rule above stated as the correct one, could.not and should not have been applied uniformly, in the present case, to all the lots in the assessable district designated by the common council.

The plaintiff’s counsel also contends that the direction in the ordinance for the opening of Church street that the assessments be payable in instalments, was void for want of power; that if such direction is valid, the assessment-roll is defective in not following such direction; that the order of the common council referring complaints respecting the assessment to a especial committee instead of the committee on assessments, was unauthorized; that the certificate of the commissioners of assessment annexed to their roll is defective; that the warrant for the collection of the assessments was inoperative for the reason that it was not signed by the mayor until after it had been delivered to the treasurer for collection, and that no sufficient notice was given of either of the meetings of the common council at which an assessment was ordered. We do not pass upon either of the questions referred to, for the reason that if they present defects, such defects are patent upon the face of the proceedings, or if not, the holding of them to be defects, would not affect the final result which we have reached.

The error above pointed out in respect to the proceedings of the commissioners and the assessment made by them does not appear except by extrinsic evidence, and as the assessment is of itself an apparent lien upon the plaintiff’s land, and may ripen into other liens by a sale and leases, he is entitled to have it removed.

But as no latent defect is found in the proceedings of the common council prior to ordering the assessment, the plaintiff is not entitled to retain that part of the judgment which declares that his lot is not liable to a local assessment for any part of the improvement. Section 215 of the charter provides that whenever it shall appear by the judgment of a court of competent jurisdiction, that any assessment for a local improvement is illegal or void for want of jurisdiction in making the improvement or assessment, and said assessment or any portion thereof remains unpaid, the common council may pass an ordinance designating the improvement so made, the whole expense thereof, and the portion of territory deemed to be benefited thereby, and may assess the houses and lands in such territory described, according to the benefit received, and proceed in all respects as in cases of assessments, and such action shall have the same force as if the same had originally been properly done. The judgment in this case should not stand in the way of any action which that provision authorizes the common council to take, by way of remedying any errors into which they may have fallen or otherwise.

The result is, that the judgment appealed from should be reversed, so far as it adjudges the plaintiff’s lot not liable to a local assessment for any part of the expense of opening Church street, and restrains and prohibits the city, its officers and agents, from hereafter making any local assessment for any part of the opening of said street which shah include the plaintiff’s said lot or be made thereon; and in all other respects the judgment should be affirmed.

And as the plaintiff, although unsuccessful in part, succeeds in sustaining, against the defendant’s appeal,' so much of the judgment as relieves him from the assessment imposed by the city authorities, we think he is entitled to the costs of the appeal.

Barker, Haight and Bradley, JJ., concur.


source: Caselaw Access Project

author: Childs, J.

license: Public Domain

text:
    William Burnett, App’lt, v. Daniel E. Linsley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    Verdict—When conclusive upon party against whom it is rendered.
    The issues of fact in an action were by the court submitted to the jury upon conflicting testimony. In this disposition of the case the plaintiff acquiesced, neither asking that a verdict be directed in liis favor nor requesting the court to charge in his favor as matter of law, nor did he object to the submission of any question to the jury, and no exceptions were by him taken to the charge as made. Hed, that a verdict rendered for the defendant upon the question litigated was conclusive upon the plaintiff.
    Appeal from a judgment entered on the verdict of a jury-in Wayne county court, and from an order denying motion for a new trial, made on a case and exceptions.

      De L. Stow, att’y for app’lt; E. H. Kellogg, att’y for resp’t.
   Childs, J.

In July, 1876, one Oliver F. Hibbard purchased of the Boomer and Boschert Press Company a power cider press, which he placed in a building previously erected by him, in Wolcott, N. Y. Such purchase was upon credit, Hibbard executing and delivering to said company two promissory notes and a chattel mortgage, which was filed in the proper town clerk’s office, covering the property so purchased, as security for the payment of said notes, on the first day of September, 1876. Hibbard and wife, by deed acknowledged that day, conveyed the cider mill property to his aunt, one Charlotte A. Winegar, on the 6th day of November, 1880, said Charlotte A. Winegar, by deed acknowledged that day, conveyed the same property to the plaintiff. In May, 1884, the last note given by Hibbard to said Boomer & Boschert Press Company not having been paid, said company, in a writing executed for that purpose, authorized the defendant as its agent, and by virtue of said chattel mortgage, to take possession of and sell the cider mill machinery covered thereby. The defendant, in pursuance of such authority, removed said machinery from the cider mill, and thereafter, upon demand therefor refused to deliver the same to the plaintiff. This action of replevin was then brought in the Wayne county court to recover the possession thereof.

On the trial it was claimed by the plaintiff that the chattel mortgage had not become a hen upon the machinery for the reason that the same was not executed or filed prior ♦ to the conveyance of the real estate by Hibbard to_ Winegar, his grantor; also that such machinery, at the time of the conveyance to him, was a fixture, and that the title thereto passed to him under his conveyance as part and parcel of the real estate, and he gave testimony tending to support such claims, which were controverted by the defendant, who gave testimony tending to show that said chattel mortgage was executed, delivered and filed, before the conveyance by Hibbard had been regularly refiled, as required by the statute to a date later than that of the plaintiff’s conveyance; that at the time of the conveyance by Hibbard to Winegar the machinery had not been set up or placed in position for use in the mill; that the same was not, after that date, so annexed to the building as to become a fixture, and that neither Winegar nor plaintiff were bona fide purchasers of such property, so conveyed by Hibbard.

These questions were by the court all submitted to the jury, to be determined upon the conflicting testimony in the case. The plaintiff acquiesced in this disposition of the case. He did not ask the court to direct a verdict for the plaintiff, or to charge as matter of law that upon the evidence the property was a fixture. He did not object to the submission of any question to the jury as an issue of fact proper to be passed upon by them, and the court was not requested to exclude these questions from the jury or to pass upon them as issues of law. No exceptions were taken to the charge in these particulars. We think, therefore, that the verdict for the defendant, upon the questions litigated, is conclusive on the plaintiff.

We have examined the exceptions taken by plaintiff on the trial, but.find no error to the prejudice of the plaintiff.

The judgment should be affirmed.

Judgment and order affirmed.

Haight, Bradley and Angle, JJ., concur.


author: Bradley, J.

text:
    Ella A. Sabin, Resp’t, v. The Grand Lodge of the Ancient Order of United Workmen and Andrew L. Phinney.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Corporation—Mutual Benefit Association—Beneficiary fund— Laws 1877, chap. 74, as amended by Laws 1878, chap. 69—Appointee DOES NOT GAIN VESTED RIGHT DURING LIFE OF MEMBER.
    Defendant is a domestic corporation organized pursuant to Laws 1877, chapter 74, as amended by Laws 1878, chapter 69, by the statute. Among the objects of corporations thereunder organized are the creation, holding and disbursement of a beneficiary fund for the relief of members and their families, and by Laws of 1877, chapter 74, section 4, such fund may beset apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members or such person or persons as such deceased member may while living have described. By sections 4 and 5 power is given to such corporations to make such by-laws, rules and regulations as may be deemed proper. By one of defendant’s by-laws power was given to a member possessing one of tlieir beneficiary certificates by designation in a manner prescribed by the by-law to make the fund payable on his death to whomsoever he might appoint. Held, that a person who was designated by a member as a beneficiary during his life possessed no vested interest in the beneficiary fund, and that the right remained in the member to make a new designation in the name prescribed.
    2 Same—Appointee need not have interest in life of Member-Absence THEREOF DOES NOT RENDER CERTIFICATE A WAGER POLICY.

      Hekl, that it was not necessary that the person designated should be a family relation or have an interest in the life of the member, and that the absence of such interest did not render the certificate made on the new designation a wager policy.
    3. Same—Contract to appoint—Rights of subsequent appointee not AFFECTED BY.

      n Id, that a contract made upon sufficient consideration by the member with another, whereby lie agreed to designate her as the recipient of the beneficiary fund, had no affect on the rights of a party subsequently designated in violation of the contract.
    4. Same—Breach of contract—Effect of.

      Held, that the failure on his part to keep and observe his agreement was. the breach of a personal undertaking which did not defeat the operation and legal effect of the power of appointment.
    5 Same—Does not charge subsequent appointee with trust in favor of contracting party.

      Held, that the person with whom such contract was made acquired no right or interest in the fund or in the undertaking of tile corporation to pay, that would enable her to charge one subsequently appointed as a trustee in her bohaif.
    6. Same—Testimony of contracting party as to personal transactions WITH DECEASED MEMBER—INCOMPETENT ON WHAT POINT

      Held, that plaintiff’s testimony of personal transactions with the deceased member was not competent to prove that her right derived from him was superior to that of the person appointed by him as beneficiary
    Appeal from judgment entered on report of referee.
    The defendant, the G-. L. of the A. O. of theU. W., isadomestic corporation organized prior to March 24, 1879, pursuant to Laws of 1877,chap.74, as amended by Laws 1878, chap. 69, and instituted a subordinate lodge at Hornellsville, N. Y., known as the George Washington Lodge, No. 132. John C. Sabin became a member of this subordinate lodge and took the degree of master workman, and, Match 24, 1879, a beneficiary certificate was, by the corporation defendant, issued to him, of which the following is a copy: “ No, 9513, $2,000. The Grand Lodge of the Ancient Order of United Workmen of the State of New York.
    “This certificate, issued by the authority of the Grand Lodge of the Ancient Order of’ United Workmen of the State of New York, witnesseth: That brother John 0. Sabin, a master-workman degree member of George Washington Lodge, No. 132, of said order, located at Hornellsville, in the state of New York, is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2,000, which sum shall, at his death, be paid to Ella A. Sabin.
    “This certificate is issued upon the express condition that, said John 0. Sabin shall, in every particular, while a member of said order, comply with all the laws, rules and requirements thereof.”
    To which was added the attesting clause and seal of the corporation of date March 22, 1879, and the signatures of the grand recorder and grand master-workman. And it was countersigned by the master-workman and recorder of the subordinate lodge March 24, 1879, with its seal annexed.
    The plaintiff, Ella A. Sabin, named in the certificate was the wife of John 0. Sabin. In July, 1883, this certificate was surrendered by him and another certificate of date the 20th of that month was issued and countersigned in .all respects like that first mentioned, except that the date was that last mentioned, and the name of the plaintiff was omitted, and that of Andrew S. Phinney was inserted as the beneficiary. John 0. Sabin died October 13, 1883.
    This action is brought for determination of the right as between the plaintiff and defendant Phinney to this fund, and to recover the amount of it of the corporation defendant.
    The referee found and determined that the plaintiff was entitled to it, and directed judgment accordingly, which was entered.
    The defendants appeal.

      Leroy Andrus, for Grand Lodge A. O. U. W., app’lfc; Bemis & Orcutt, for appl’t Phinney: John Griffin and I). M. Page, for resp’t.
   Bradley, J.

The liability of the Grand Lodge to pay the sum mentioned in the certificate has been recognized by it, and the amount has been, pursuant to the order of the court, paid into court to the credit of this, and another action commenced by Phinney against it. The only question for determination now is, which of the two persons, the plaintiff, and the defendant Phinney, is entitled to the money.

The plaintiff contends that she acquired a right as the beneficiary which was not defeated by the subsequent surrender of the certificate and the issuance of the new one, naming the defendant Phinney as such beneficiary. The statute declares the objects of the corporations to be created under it, amongst which are, to create, hold and disburse a beneficiary fund for the relief of members and their families. And it provides that such beneficiary fund “may be set apart and provided to be paid over to the families, heirs or representatives of deceased or disabled members, or to such person or persons as such deceased member may wKile living have directed.” Laws 1877, chap. 74, § 4. And power is given to such corporation to make such by-laws, rules and regulations as may be deemed proper. Id., §§ 4, 5.

Amongst the by-laws of the corporation in force in 1879, was one providing that “any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change, in writing, on the back of his certificate, in the form prescribed,” etc. And in 1883, this by-law was amended, but not modified in any particular, requiring consideration here. The manner and form prescribed for making the direction for a new certificate, and to produce its issue, were observed and adopted by the member Sabin. The inquiry here, therefore, is whether or not he had the right to effectually cause the new certificate to issue, and thus name the defendant Phinney as the beneficiary. The statute and the by-laws, pursuant and subject to which the certificates were issued, were part of the contract between the corporation and the member Sabin, and such contract was executory. Hellenberg v. Dist. No. One of I. O. of B. B., 94 N. Y., 580; Bown v. Catholic Mut. Benefit Asso., 33 Hun, 263.

It was within the agreement as made between the member and the lodge that he might at any time while remaining in good standing as such, make a new direction as to the payment, and obtain a certificate accordingly. This he did do, and pursuant to his direction a new certificate was issued and Phinney was named as the beneficiary.

This was within the terms of the contract, unless Phinney was ineligible to become such by reason of the want of some relationship to the member or of some interest in his life. He was no relative of Sabin. This is urged as an objection going to the validity of the certificate for his benefit, on two grounds: First, that a family relation is requisite within the meaning of the statute to qualify a person to become a beneficiary; and second, that not being such, and having no interest in the life of the member, the certificate as to him has the nature of a wager policy, and is void, and that the relation of the plaintiff as the beneficiary remained effectual to support her right to the fund.

While aid, and after death of members, pecuniary benefit to their families, by payment from the beneficiary fund, are within the purposes of the statute, the right of direction for payment does not seem to be confined to that, or in any manner restricted in respect to the person whom the member may designate as the ultimate recipient of the fund which the corporation may be required to pay by virtue of the certificate issued to him as member.

The statute provides for payment to “such person or persons” as he shall while living have directed. This power, as furnished by the statute, is not qualified by the terms of the statute. The first objection is therefore not supported. Massey v. Mutual Relief Society, 34 Hun, 254; affirmed, 5 East. Rep., 810.

The question of policy in this respect is legislative and some statutes providing for the creation of societies for like purposes, and defining their powers, have applied the restriction urged here. The inquiry now is one of construction, and not for the wisdom or propriety of a statute.

The cases founded upon other and different enactments do not necessarily furnish much aid in the interpretation of that in question.

It is difficult to see support for the contention that the certificate made on the new direction has the nature or effect of a wager policy within the rule declared by the courts of this state, as it was made upon the request of the member and pursuant to the existing agreement between him and the Lodge. Olmsted v. Keyes, 85 N. Y., 593.

There is some conflict of authority on this subject, and the views of the Supreme Court of the United States, and of some of the states, are not in harmony with those of the courts of this state. Cammack v. Lewis, 15 Wall., 643; Warnock v. Davis, 104 U. S.-, 775.

The circumstances which led to the new direction and certificate were that Sabin and his wife had separated, and he had concluded, and expressed his purpose to Phinney, to discontinue the payment of his dues and assessments as a member of the order. He said he would like to remain a member, but would not make any further payments. Phinney proposed to make the payments for him, and take the relation of beneficiary if Sabin would assign the policy to him, which Sabin, with apparent satisfaction, promised to do, and soon after sent to him the certificate, with the requisite direction endorsed upon it for the new certificate, which, on the surrender of the old one so indorsed, was issued. The referee has found, and his conclusion is supported by the evidence, that this agreement was made in good faith by Phinney. The then existing agreement between the member and the lodge, pursuant to which the first certificate and the modification of it, or the new one, were made, was valid, and the latter having been issued by his direction, did not come within the meaning or objection of a wager policy.

It is further contended by the learned counsel for the plaintiff: First, That the delivery of the certificate to her, and the acceptance of it by her, vested in the plaintiff a right to the fund on his death, and second, that her right was supported by a consideration which denied to Sabin the power to revoke the certificate or to defeat her relation and right as the beneficiary. She testified to the effect and the referee has found that the first certificate was by Sabin delivered to her, and she received and put it into her box. And about three weeks after he requested her to take a certificate from the Bath Mutual Endowment Company for his benefit, and that he would pay the assessments on both, that she did so. She also says that after her separation from her husband in May, 1883, and during his life she surrendered up her certificate of the Bath Company and took a new one making her personal representative the beneficiary, and that the certificate which her husband had delivered to her, was by him taken from her box, without her knowledge or consent, and that she was not advised that he had taken it, or that it had been surrendered, or the new one issued until after his death.

It may be observed that Sabin had no interest and could take none in the fund mentioned in a certificate issued to him by the grand lodge; that his power was that of designation or appointment merely, and the executory character of the agreement with him, as a member, was such that the payment to be made after his death, was dependent not upon any other than the latest direction that he should in due manner have made by way of appointment and designation of the beneficiary. Hellenberg v. District No. 1, I. O. B. B., 94 N. Y., 580; Greeno v. Greeno, 23 Hun, 478; Brown v. Catholic Mutual Benefit Association, 33 id., 263; Deady v. B. C. Mutual Benefit Association, 17 J. & S., 246; American Legion of Honor v. Perry, 140 Mass., 580. The certificate is not a chose in action like an ordinary policy of insurance of life or property, in which right of property may vest; but it is subject to the terms of the executory contract in which it vests, and to the modification in the particular respect, which the member in the manner prescribed may direct and require to be made. The certificate is not therefore an executed contract during the life of the member in the sense required to make it an effectual promise to him for the benefit of another within the principle of Lawrence v. Fox (20 N. Y., 268).

By the mere act of- delivery to and acceptance by the plaintiff of the certificate, she acquired no interest in, or right to the fund, or in the instrument as an undertaking of the Grand lodge during Sabin’s life. And assuming that the facts proved and found constituted a mutual arrangement between the plaintiff and her husband to the effect that their respective certificates should be continued operative for the benefit of the survivor of them, and furnished a consideration to support it, the question arises whether her right to the fund is established.

The power of appointment was not taken away from him, because that was in the contract between him and the lodge, although the exercise of it may have been in violation of his arrangement with his wife. It was one of the elements of the agreement under which the certificate was issued, that this power should continue during the life of the member, provided he remained in good standing as such, which was the situation of Sabin. And such continuance of the power, and its observance was evidently within, and part of the co-operative policy of the organization and of the statute providing for it. Its beneficent purposes had in view the exercise of this power as the circumstances in the judgment of the member might seem to require. He may be capricious and unreasonable, and the member may have been so in this instance; but that is not a reason for refusal to recognize the force of the rule, or the wisdom of leaving this exercise of power of appointment to the judgment of the members. The various changes during life of the relations which they may assume, and have to others, may furnish very suitable reasons for changes of the beneficiaries named in their certificates. This executory power is derived from the organization, and is vested in them by the statute and the by-laws, and the member can in no manner other than that prescribed control the disposition of the fund. It would seem to follow that the liability of the grand lodge to pay after the death of its member is upon the certificate last issued by it upon his direction, given in the manner prescribed. And that it can be required to recognize in this case, as its subsisting contract, no other than the certificate in which Phinney is named as the beneficiary.

That alone became the executed undertaking of the corporation on the death of Sabin, as the direction which produced that certificate was the exercise of the power upon which the right to payment was by the statute and by-laws made to depend. And such certificate represented the only executed agreement of the lodge to pay arising out of the relation of Sabin as a member and upon his direction for disposition of the fund. If he failed to observe and keep his agreement with his wife, the breach was that of a per-r sonal undertaking on his part without defeating the operation and legal effect of the power of appointment. Learned v. Tallmadge, 26 Barb., 443. It is not important here to inquire whether he could have been restrained by action from exercising the power. It was executory and he executed it. We do not now see how the plaintiff acquired any property, right or interest in the fund, or in the undertaking to pay of the grand lodge, to enable her to charge Phinney as trustee in her behalf. But whatever view may be taken of that question there must be a new trial. If she acquired no right by agreement with her husband she has no foundation for her claim made upon the fund. And if she could by arrangement with him acquire such right it would necessarily rest for support upon an interest, or title derived from, through or under him. And the defendant Phinney might seek to support his claim to the fund in the same manner. The plaintiff in her own behalf testified to personal transactions and communications between herself and husband in respect to the delivery of the certificate by him to her, and in relation to the understanding that she should procure a beneficiary certificate in his behalf, and 'that he should pay the assessments on both. This constitutes the arrangement upon which reliance is placed to some extent in support of her claim.

This evidence given by her was taken under the objection and exceptions of the defendants. The defendant Phinney was then called as a witness for the plaintiff, and testified in effect to an arrangement between Sabin and himself, by which it was agreed that the latter should take the place of beneficiary and pay the dues and assessments, and thus enable Sabin to retain his membership without expense. And that he fully performed his agreement and paid the dues and assessments, amounting to $9.75. And after this evidence was introduced, the defendants renewed their objection to the evidence of the plaintiff, relating to her personal communications and transactions with her husband, by; motion to strike it out on the ground before taken, that it involved her personal transactions with him, and was incompetent under sec. 829 of the Code of Civil Procedure, and to the refusal to grant her motion, exception was taken. The referee found the facts substantially as testified to by Phinney in respect to his arrangement with Sabin, and that he made it in good faith. And it is evident that the referee gave effect to the evidence of the plaintiff in respect to her personal transactions and communications with her husband, who was deceased at the time of the trial.

This evidence of the plaintiff was undoubtedly received, and the motion to strike it out denied, upon the ground that the defendant, Phinney, was not an assignee of Sabin in respect to the certificate or fund, and that his interest or title claimed was not derived “from, through, or under him, by assignment or otherwise,” but that it was derived wholly from the grand lodge through the agency merely of Sabin, in the exercise of the power of designation or appointment. We do not hold that this view of the referee was error, but simply do hold that if the plaintiff could assert a right or interest derived from the, member, the defendant was in a situation to urge a like reason in support of the claim made by him. And in that view her evidence of personal transactions with the deceased member was not competent to prove that her right thus derived from him was superior to that of the defendant, founded upon his agreement with the deceased.

It appears by the record that the several objections taken to evidence introduced were reserved by consent of the parties for further consideration by the referee, and by his report he held this evidence of the plaintiff competent, and gave the defendants an exception, and gave it consideration, in support of her claim, although he found that the old certificate was surrendered, and the new one made pursuant to the agreement between Sabin and the defendant Phinney, before mentioned. It was error to seek to support by her evidence the claim as one derived from agreement with her husband, as against the defendant, who also had with him an agreement which produced his relation as beneficiary expressed in the new certificate. Code Civ. Pro., § 829. These views render it unnecessary to consider any other question.

The judgment should be reversed and a new trial granted; costs of this appeal to abide the final award of costs.

Haight and Angle, JJ., concur on the last ground, without expressing any opinion on the preceding one discussed.


author: Haight, J.

text:
    Sodus Bay and Corning Railroad Company, Pl’ff, v. George II. Lapham, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    Railroads—Proposed railroad—Foreclosure of, vests all rights in purchaser—Laws 1850, chap. 140—Laws 1879, chap. 350.
    Where certain persons in 1870, filed and recorded articles of association, as required by law, for the purpose of building the Sodus Bay and Corning Railroad, and had apparently complied with the conditions of chapter 140, L. 1850, as to the bonds subscribed for, and afterward, in 1872, mortgaged the proposed road, which mortgage was foreclosed, and the proposed road, with all its franchises, etc., was sold under said foreclosure proceedings, in 1876, and the road was not built. Held, that the time within which the plaintiff was to construct its road was not extended by chapter 350, Laws of 1879; that the foreclosure and sale worked a forfeiture of its rights to thereafter build and operate the road, and that right was vested in the purchaser; that the Sodus Bay and Corning Railroad corporate power in that regard had terminated before 1879, and consequently it was not brought within the statute, but excluded by the concluding clause of the statute.
    Motion by plaintiff for judgment upon a verdict directed by the court at the Steuben circuit, subject to the opinion of the court at general term.

      Ralph T. Wood, for pl’ff; John T. Knox, for def’t.
   Haight, J.

This action was brought to recover the amount of the defendant’s subscription to the capital stock of the plaintiff. It appears from the stipulated facts in the case that in the year 1870 several printed captions, in the form of articles of association, were sent out to different towns and localities along the line of the proposed railroad, with a view to obtain signatures and subscriptions thereto for the purpose of forming articles of incorporation; that one of such papers was subscribed by the defendant in this action and was delivered to one of the proposed directors; that these papers were subsequently gathered up, the caption cut off from all except one, and the names subscribed to the other papers attached thereto, and the same was, on the 17th day of July, 1870, filed in the office of the secretary of state as the plaintiff’s articles of incorporation; that the captions to these several papers to which subscriptions had been made were all alike, with one exception; that among the papers so subscribed was one which was subscribed by persons residing in the town of Barrington, near Crystal Springs, which differed from all the others; that the number of shares set opposite the names of the persons who subscribed such paper was sixty; that the caption upon this paper was also cut off and the list of subscribers attached with the others to the articles of incorporation. It further appears that subsequently action was brought to recover the amount of the subscription to the capital stock against some of the subscribers to this paper, and it was held and adjudged that the paper filed in the office of the secretary of state over their signatures was materially different from the one signed by them; that they never became bound by it to take the stock of the corporation, and that they were entitled to judgment dismissing the complaint. It further appears that this judgment shall remain in full force and effect; that the length of the plaintiff’s proposed road is eighty-six miles; that by deducting the $6,000 subscribed by the citizens of Barrington from the total subscription list there remains but $80,050, being $5,950 less than $86,000, the amount required.

It further appears that on or about the first day of March, 1872, the plaintiff executed and delivered a mortgage to the Farmers’ Loan and Trust Company of the city of New York, in trust for the persons who should become the owners of the bonds of the plaintiff, issued by it, not exceeding in number 1,500, of $1,000 each. The mortgage so executed covered all and singular its railroad then or thereafter constructed, together with its real estate, railways, switches, turn-outs, sidings, rails, bridges, piers, fences, right of way, privileges, rights, franchises and property which the plaintiff then had, or which it should thereafter acquire, own or be entitled to. That thereafter an action was brought by and on behalf of the Farmers’ Loan and Trust Co. v. The Sodus Bay and Corning Railroad Co. for a foreclosure of this mortgage, and such proceedings were thereupon had that a judgment was entered therein, and a sale of the mortgaged'property was made thereunder June S3, 1876, to one Edgar Munson. It further appears that the road has never been constructed.

At the conclusion of the evidence the defendant moved for a dismissal of the complaint upon the grounds, first, that the destruction and alteration of the papers subscribed by the parties whose names now appear to what purports to be the articles of association, making up the paper by cutting off and annexing these different signatures, renders the subscription of the defendant void as an obligation; second, that when the defendant subscribed the articles of association it was, in view of the statute, part of the contract, and one of the conditions, that $1,000 per mile of the length of the proposed line of railroad should be subscribed to the articles of association, and that no obligation or liability of the defendant was incurred because the amount of $1,000 per mile was not in fact subscribed; third, that the plaintiff did not, within ten years after the filing and recording of the articles of association, complete or furnish its road, and by reason of that the corporate existence and powers of the plaintiff ceased; fourth, that it appears that prior to ■ 1879 the plaintiff had forfeited its corporate powers, that it became insolvent, had abandoned the construction of its road and all its property, rights and franchises, and all its interests were foreclosed and sold.

The motion was denied.

As to the first ground upon which the motion was based, the question was fully considered in the case of S. B. and, C. R. R. Co. v. Hamlin (24 Hun, 390), and requires no further comment. As to the second ground a more serious question is presented.

The statute provides that such articles of association shall not be filed and recorded in the office of the secretary of state until at least $1,000 of stock for every mile of railroad proposed to be made is subscribed thereto, and ten per cent paid thereon in good faith, etc. Laws of 1850, chap. 140, § 2.

The defendant argues with much force that his subscription was made in view of the statute, understanding that it would be of no effect unless $86,000 was subscribed in good faith, being $1,000 per mile of the proposed road; that the taking of the subscription list of the residents of Barring-ton, and attaching them to the paper filed, with the caption or heading materially different, was the same as if sixty shares of the stock had been subscribed by forgery.

We have not thought it necessary to decide this question for the reason that the other grounds upon which the defendant sought a dismissal of the complaint appear to be well taken.

This action was tried January 4,1882. The supplemental answer alleges that the plaintiff has ceased to exist as a corporation. The statute provides that, “If any corporation formed under an act entitled 6 An act to authorize the formation of railroad corporations, and to regulate the same, ’ passed April 2, 1850, shall not, within five years after its articles of association are filed and recorded in the office of the secretary of state, begin the construction of its road, and expend thereon ten per cent of the amount of its capital, or shall not furnish its road and put it in operation in ten years from, the time of filing its articles of association, as aforesaid, its corporate existence and powers shall cease.”1 Laws of 1850, chap. 140, as amended. Laws of 1867, chap. 775. As we have seen, the articles of association were filed in the office of the secretary of state on the 17th day of June, 1870. The ten years within "which the road was to be finished and put in operation expired June 17, 1880. It would, therefore, appear that at the time of the trial the plaintiff, as a corporation, had, by the express terms of the statute, ceased to exist.

But it may be contended that the time within which the plaintiff "was to construct its road has been extended by chap. 350, Laws of 1879.

That act provides that “Any existing railroad company heretofore organized or incorporated under the law’s of this state, except such as may have been organized for the purpose of constructing or operating a railroad in the city of New York, which may be unable, from any cause, to construct its railroad w’ithin the time specified by its charter, or articles of association, shall hereby have the time for the completion of the railroad it was authorized to construct extended for a further term of two years, beyond the time heretofore limited; and failure to construct its railroad within the time heretofore limited shall not cause a forfeiture of its corporate powers; but nothing herein contained shall have the effect to revive any corporation whose corporate power has been forfeited from any cause.”

If the plaintiff is within the provisions of this statute, then its time would be extended two years and W’ould not have.expired until June 17, 1882. But it will be observed by the concluding clause, of the statute, that “nothing-herein contained shall have the effect to revive any corporation whose corporate power has been forfeited for any cause.” At this time the plaintiff’s mortgage, as we have seen, had already been foreclosed, and all its property,. rights and franchises had been sold and disposed of, so that it was absolutely powerless to construct the road thereafter. The foreclosure and sale worked a forfeiture of its right to thereafter build and operate the road; that right was vested in the purchaser. Its corporate power in that regard had terminated, and consequently it was not brought within the provisions of the statute.

It follows that the motion for judgment on the part of the plaintiff must be denied, and judgment ordered for the defendant, dismissing the plaintiff’s complaint upon the merits.

So ordered.

Lewis, J., concurs; Bradley, J., not sitting.