text:
    Jesse Elting, Resp’t, v. Calvin Palen, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Landlord and tenant—Manure belongs to the land on which it IS MADE.
    The defendant was tenant of a farm and Ms lease expired April 1, 1887. A partition sale of the premises took place in October, 1886, the premises being sold in parcels to several persons, among them one Varick. The sale was subject to the tenant’s possession until April 1,1887. The plaintiff bought a tract on which were the dwelling house and barn. In the latter at the time were two loads of manure; by February 17, 1887, there were-one hundred and thirty. At the request of Varick, the defendant then began carrying away the manure and depositing it on her land. Held, that the manure belonged to the land and hence to the plaintiff as owner of the fee of that portion of the farm.
    2. Same.
    Although the tract of the plaintiff was a small part of the whole farm the defendant had no title to the manure, and a partition of the property having been made there was no injustice in holding that the manure belonged to that separate portion of it upon wMch the manure had been accumulated.
    Appeal from judgment in favor of plaintiff, granting a perpetual injunction restraining the defendant from interfering with certain manure.

      A. T. Clearwater, for app’lt; Bernard & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Learned, P. J.

The defendant as tenant a farm some 800 acres, and his lease expired April 1, 1887. A partition sale of the premises was had October 14, 1886, at which the plaintiff bought forty-five acres which contained the barn and dwelling house. Other persons bought other parcels; among them Mrs. Varick bought about forty-seven acres. The terms of sale as to all the land stated that it was sold subject to the rights of Galvin Palen as tenant, and the possession of said premises will be reserved until April 1, 1887, and also the winter grain sown thereon will be reserved and the right of the tenant of coming upon said premises after April 1, 1887, and gathering the same.” On the farm, not on the part bought by the plaintiff, was also another barn used for storing hay. At the time of the purchase by plaintiff there were two or , three loads of manure in the yard of the barn bought by him. On the 17th of February following the time of the commencement of this action there were 130. Just prior to the commencement of this action the defendant began carting away this manure from the plaintiff’s barnyard, and depositing it on that part of the farm purchased by Mrs. Varick. This he did at her request. He had carted away about thirteen loads. Thereupon the plaintiff commenced this action, and obtained an injunction pendente lite, forbidding the defendant from carting away any more manure. On the trial this injunction was made final. And from the judgment the defendant appeals.

It does not distinctly appear whose tenant the defendant had been; probably the tenant of the deceased owner. Nor does it distinctly appear whether the heirs reserved to themselves the rent to become due from defendant up to April 1. This may be possible, although contrary to the general rule. Washburn Real Property, 337; Van Rensselaer v. Gallup, 5 Den., 454, 461. The terms of sale reserve only the possession. It would seem then that the title passed to the several purchasers at the time they received their deeds; but that, owing to the defendant’s existing lease, they could not take actual possession. The terms of the sale seem to have been intended simply to protect the rights of defendant as tenant, and to prevent any claim by the several purchasers that the contract of sale was broken by their inability to turn the defendant out of possession. The several purchasers, therefore, becoming owners of their several parcels, must have acquired severally the rights towards the defendant which a land owner would have in respect to a tenant in such circumstances. And these several purchasers were not cotenants or joint tenants. They held their respective purchases in severalty.

If the defendant’s lease had continued for another year, then it is very probable that, in the ordinary course of good husbandry, he could have spread this manure upon any proper part of the farm. Because the annual spreading of the manure is the ordinary mode. He would have been entitled to have, by this mode of use, the benefit of the accumulated manure. But his lease was to expire April 1. His carting this manure to a part of the farm bought, not by the plaintiff, but by some other person, was the same as if he had carted it to some land which had never been part of the farm. The previous owners of the farm had, by the partition sale, divided it; and each purchaser held his purchase separately.

In Middlebrook v. Corwin, 15 Wend., 169, the landlord sued the tenant for manure taken away from the farm shortly before the expiration of the term, and it was held that he could recover. The court said the manure belonged to the farm, and the tenant had no more right to remove it than he had to remove a fixture. Such is the rule in 2 Kent’s Comm., 347.

In Goodrich v. Jones, 2 Hill, 142, the court held that manure made a part of the freehold, though laid up in heaps in the barnyard. This was said to be the doctrine between landlord and tenant, and to be stronger as between vendor and vendee.

The same is held in Daniels v. Pond, 21 Pick., 367, and Kittredge v. Woods, 3 New Hamp., 503, which last case is approved in Goodrich v. Jones, supra. See also Lassell v. Reed, 6 Greenl., 222.

It is worth noting also that this is a rule not of our law only. By the Roman law manure went to the purchaser of the farm, whether the manure was in a heap or in a stable. Fundo vendito vel legato sterculinvm et stramenla emptoris et legatoris sunt. * * * Nee interest in stabulojaceat an acervus sit. Dig. XIX., 117, 2. See also Dig. XLIII, 24, 7, 6.

It is urged by the defendant that this manure was not in existence when the plaintiff purchased, but was made subsequently. Then, as we have above seen, the defendant was after the purchase in the position of tenant to the plaintiff. And the rule is equally applicable in that relation.

In regard to the case cited by defendant of Ruckman v. Outwater, 28 N. J., 581, holding that manure in a barnyard does not pass to the grantee, we can only say that it is contrary to the decisions of our state above cited, and however well considered we cannot follow it.

The defendant urges the rights of co-tenants or joint tenants as to personal property. But we think that those rights are not here involved. Of course there is a certain difficulty in treating such an article as manure in a farm barnyard as real estate, but the difficulty is no greater than in the case of hop-poles. Bishop v. Bishop, 11 N. Y., 123. And the rights of all parties seem to be best settled when the manure is said to belong to the farm and not to the tenant

Nor do we think that any difficulty arises from the fact that the tenant’s lease extended over the whole 300 acres. He had no right to the manure as owner, though he might, as above stated, have restored it to the land. And when the owners of the land divided it by their sale, we see no injustice in saying that the manure belonged to that separate portion of the farm on which it was accumulated. For, as above pointed out, it could not, in good husbandry, during what remained of the defendant’s term, have been applied for his benefit over the farm generally.

Judgment affirmed, with costs.

Landon, J., concurs; Mayham, J., not acting.


source: Caselaw Access Project

author: Tappan, J.

license: Public Domain

text:
    In the Matter of the Application of The Malone Water Works Company to determine the compensation to be paid for damages for taking water for the purposes of said company.

      (Supreme Court, Special Term, Franklin County,

      Filed May, 1890.)

    1. Water works companies—Petition—Description op quantity op WATER TO BE TAKEN.
    A petition in proceedings to take water for the use of a water works company, which states the size of pipe to be used, its grade and the estimated flow through such pipe, sufficiently describes the quantity of water desired to he taken.
    2. Same—Laws 1857, chap. 156.
    Under the charter of the petitioner it is obligatory upon it to furnish water to the village, and it can be compelled to do so; and, hence, the use to which the water is to be put is a public one.
    3. Same—Contract—Conditions precedent.
    It is not a condition precedent to the right to acquire water under the petitioner’s charter that a contract should have been made with the corporate authorities, nor that the public uses which it was created to supply should have been supplied, nor that the water sought to be taken should be for immediate use, if the necessity for such use in the immediate future is established.
    é. Same—Constitutional law.
    Chapter 156, Laws 1857, is not unconstitutional as containing subjects not expressed in the title. The provision allowing the court on appeal to increase or diminish the amount of compensation is in violation of art. 1, § 7 of the constitution, but the remainder is valid and may be upheld.
    5. Same—Statutes—Repeal.
    The right of petitioner to take water for public purpo=es was not taken away by chap. 36, Laws 1890, No part of the original act was repealed thereby, but an additional right to furnish water for private purposes was granted, which may be done if the corporation can obtain the water therefor with the consent of the owners, but the act does not authorize the taking of water for such purposes without the consent of the owner.
    Application for appointment of commissioners to appraise damages for water taken for petitioner’s use.

      Cantwells & Main (Leslie C. Wead, of counsel), for petitioners; J. P. Kellas, for Eugene H. Ladd and William E. Smallman, owners.
   Tappan, J.

Petitioner was incorporated under chapter 156 of the Laws of 1857, entitled “ An act to incorporate the Malone Water Works Company. That act has been amended by chap. 148, Laws of 1868, chap. 161, Laws of 1886, chap. 291, Laws of 1870, as amended by chap. 129, Lawk of 1879, and chap. 36 of the Laws of 1890.

These laws so far as they are now in force are referred to in the petition, and the same is to be construed with reference to their provisions.

The petitioner presented a petition at the circuit and special term of this court, held in Franklin county in March, 1890, to which the above named Ladd & Smallman, by their counsel, made objections, which objections were sustained, and the petition was held insufficient.

It was then decided that § 11 of the said act of 1857 requires the Water Works Company to make a verified petition, serve a copy thereof upon the owners of the land or water sought to be taken, with a notice of the time and place of an application to the court for the appointment of commissioners, and that such petition and service of notice and of a copy is necessary to confer jurisdiction upon the court in the premises; that as the act in question provides for taking of private property for public use, dt must appear to the court to which application is made for the appointment of commissioners that the case is one provided for by the law, and that every substantial requirement of'the law that can be of any substantial benefit to the owners whose property is sought to be taken has been complied with. It was then further decided that the petition should state definitely the quantity of water diverted and sought to be diverted in future; that such 'statement is necessary for the protection of the petitioner; that the record may show at the end of the proceeding the extent of the right acquired, and the right to enforce the same, and to enable the owner to show at any given time whether more water has been diverted by the petitioner than it has acquired the right to by such proceeding. This doctrine is sustained by Matter of Water Commissioners of Amsterdam, 96 N. Y., 351, 361; M. El. R. Co. et al. v. Dominick, 27 N. Y. State Rep., 576.

It was also then decided that the water company is not entitled to have commissioners appointed unless it is not able to agree with the owners of the land or water sought to be taken as to its value, and that facts should be stated showing inability to agree, to make a good petition in that respect.

A new petition has been drawn, copies served upon the owners, with notice to them of the time and place of its presentment Upon the presentment of such petition at the present term said owners again appear, specially, and make the following objections to the appointment of commissioners. “The petition is defective and fails to confer jurisdiction upon the court to make an order -in the premises.

“ 1st. It does not sufficiently describe the quantity of water desired to be taken.

“2d. It does not appear that the use to which the water is to be put, when taken, is a public use.

“ 3d. It affirmatively appears that it is a private use.

“4th. It does not appear that any contract has been made or is even contemplated between Malone village and the company for the supply of water or that any public use is to be subserved by the taking of the water.

“5th. The petition does not state the facts showing inability to agree with owners upon the amount of damages for taking the water diverted or to be diverted.

“ 6th. The petition does not show that the public uses of the village of Malone are being or will be supplied by the water taken under these proceedings.

“ 7th. The petition fails to show that the company has the power to exercise the right of taking an interest of Ladd & Smallman in the water sought to be taken.

“8th. Petition fails to show that the map required by chap. 156 of the Laws of 1857 to be filed has been filed.

“ 9th. The acts of the legislature under which the company claims to exist and under which it claims to exercise this power are and each of them is unconstitutional and void.

“ 10th. If it be held that the company ever did possess the right to take an interest in water against the will of the owner that right has been taken away by act of the legislature, particularly in the passage of chap. 36, Laws of 1890.

“11th. The petition fails to show that Ladd & Smallman, or either of them, have consented to the taking of the water for the company.

“ 12th. The petition does not state facts sufficient to confer jurisdiction upon the court to appoint commissioners of appraisement herein.”

The petition sufficiently describes the quantity of water desired to be taken.

It states that the company has laid a pipe from its said premises in said lot number 51, township 9, to its distributing reservoir located near the south limits of Malone village, which pipe has an. interior diameter of ten inches, following substantially the topography of the surface of the ground and crossing hills and descending into valleys, with an extreme descent from the level of the water of the receiving basin of about 300 feet; said level being 110 feet higher than the outlet of said pipe at said reservoir, and the mean gradient in said pipe being always above the line of said pipe where it crosses the hills, and the total length of said pipe following the changes of its course in horizontal and perpendicular planes being 35,550 feet, the flow through said pipe being, as near as your petitioner has been- able to ascertain the same, 900,-000 gallons in each period of twenty-four hours, or at the rate of 84.62 .cubic feet per minute; and, upon information and belief, your petitioner alleges that such is the flow through such pipes;. and further, that for the purpose of supplying Malone village with pure and wholesome water for the uses and purposes in said statute provided, it is necessary to divert, take and use all the water that will flow through said pipe, laid as aforesaid, to wit, the quantity aforesaid.

The petition states the apparatus to be used, in conveying the water, which will operate as a meter to measure the quantity diverted at any given time in the future, and positively show that it is not greater than the quantity which the company has acquired the right to take under this proceeding; it also states the quantity desired to be taken, which it is believed such apparatus will convey. This is all that it is practicable to state, and all that is necessary for the protection of the rights of the owners whose property and rights are sought to be acquired, and the rights of the company that may be acquired under this proceeding.

Th,e owners object that it does not appear from the petition that the use to which the water is to be put when taken is a public use; that it affirmatively appears therefrom that it is a private use.

The act referred to which incorporates the petitioner, and the ninth section thereof, provides “that for the purpose of supplying Malone village with pure and wholesome water the said company may purchase, take and hold any real estate, and their agents and servants, or other persons employed by it, may enter upon the lands of any person which may be necessary for that purpose, and may take such water from any springs, ponds or streams, as may be determined by the commissioners hereinafter named,” and divert and convey the same to said village. * * *

Section 17, as amended by chap. 36 of the Laws of 1890, in connection with § 7, title 4, chap. 291 of the Laws of 1870 as amended by chap. 129 of the Laws of 1879, authorizes the board of trustees of Malone village to contract with the Water Company for supplying the village with water for the purpose of extinguishing fires, and to assess and collect the amount agreed to be paid in such contract as other village taxes are assessed and collected.

It also provides that the said company may make any agreements, contracts, grants and leases for the sale, use and distribution of water for domestic, ornamental, mechanical or other purposes, within the village or town of Malone, that may be agreed upon between said company and any individuals, associations or corporations, which agreements, contracts, grants and leases, shall be at reasonable rates, and shall be valid and effectual in law.

The eleventh section of the act of 1857 provides that in case the said company cannot agree with said owners and occupants of any land or water intended to be taken or used, as aforesaid, for the purchase thereof, the directors, upon giving notice, may apply to this court, or the Franklin county court, for the appointment of three disinterested persons, commissioners, “who-are hereby authorized to determine the compensation to be paid for damages suffered or to be suffered by any person, or persons, by reason of taking land and water, and in constructing any of the works of said company ” * * * “ They shall make a written report of their proceedings, containing the testimony taken by them, and showing the sum awarded t.o each owner or other person, and return the same to the said court, to be filed of record.”

If no appeal is taken no further proceedings for the confirmation of the report is necessary. Section 12 of said last mentioned act provides for an appeal by the company or any party to the proceedings. Section 6 of art. 1 of the constitution of the state provides that no person shall be deprived of' life, liberty or property without due process of law, “ nor shall private property be taken for public use without just compensation,” and § 7 of the .same article provides that “ when private property shall be taken for any public use the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law.”

In determining the owners’ objections it becomes necessary to consider whether the taking' of property by a private corporation, formed for the purpose of supplying Malone village with pure and wholesome water, to which corporation is granted especial authority to contract for supplying water as hereinbefore stated, is taking the same for public use.

It belongs to the legislative power of the government to determine for what public purposes private property shall be taken, and the necessity or expediency of such appropriation. If the public interests can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with private rights.- 2 Kent’s Com., 340; Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45, 73; Bloodgood v. The Mohawk & Hudson R. R. Co., 18 Wend., 9.

In all such cases the object of the legislative grant of power is-the public benefit derived from the contemplated improvement, whether such improvement is to be effected by the agents of the government, or through the medium of corporate bodies or of individual enterprise; and measures calculated to produce such benefits to the public, though effected through the medium of a, private incorporation, are within the powers given to the legislature by the constitution. Cases above cited, and Willson v. The Black Bird Creek Marsh Co., 2 Peters, 251.

And the legislature may grant to such corporations the power to appropriate private property necessary for their use on making-compensation as required by the constitution. Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y., 100; Matter of Middletown, 82 id., 196; Matter of New Rochelle Water Works Co., 46 Hun, 525 ; 12 N. Y. State Rep., 646; N. Y. & H. R. R. Co. v. Kip, 46 N. Y., 547; Matter of Union Elevated R. R. Co., 22 N. Y. State Rep., 792.

The general principle is now well settled, that when the uses, are in fact public, the necessity or expediency of taking private property, for such uses, by the exercise of the power of eminent, domain, the instrumentalities to be used and the extent to which such rights shall be delegated are questions appertaining to the. political and legislative branch of the government, while on the other hand, whether the uses are in fact public, so as to justify the taking in invitum of private property therefor, is a judicial question to be determined by the courts. Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45; In re Beansville Cemetery Association, 66 N. Y., 569 ; In re Application Union Ferry Co., 98 id., 139, 153; Matter of Niagara Falls & Whirlpool R. R. Co., 108 id., 375, 383; 13 N. Y. State Rep., 690; Brooklyn Park Commissioners v. Armstrong, 45 N. Y., 234; Secombe v. Milwaukee R. R. Co., 23 Wall., 108.

Judge Andrews quotes from Judge Cooley, Const. Lim., 669, in 108 N. Y., 385, in considering the question, what is a public use for which private property may be taken in invitum. “ That can only be considered such, when the government is supplying its needs, or is furnishing facilities for its citizens, in regard to these-matters of public necessity, which on account of their peculiar character, and the difficulty, perhaps impossibility, of making provision for them otherwise, it is alike proper, useful and needful for the public to provide.”

The 9th section of the act in substance declares that the company is incorporated for the purpose of supplying Malone Villagewitii pure and wholesome water. That language is used in its popular sense and means that such water is to be supplied, not. only to the municipality, known as the Village of Malone, for extinguishing fires, and public drinking fountains, but also to the citizens of that village for all the domestic and such ornamental purposes as are included in domestic, for which water is ordinarily used in villages of that size since the introduction of modern improveniente for furnishing water, and the amended section 17 shows that such was the legislative intent, manifested by the latest amendment to the original act, and that act allows water in like manner to be supplied for like purposes within the town of Malone, and that the agreements, contracts, grants and leases therefor shall be at reasonable rates. Chapter 737 of the Laws of 1873 authorized the formation of a water works company in any town or village in this state, “ to supply said town or village or the inhabitants thereof with pure and wholesome water,” and for that purpose authorized such corporations to take and hold real estate for the purposes of their corporation, and to hold and occupy any of the waters of the state, to be obtained by agreement, lease or purchase by such corporation, and empowered such corporations to supply the authorities or inhabitants of the town or village where they may have organized with pure and wholesome water, at such rates and cost to consumers as they may agree upon.

Chapter 415 of Laws of 1876, as amended by chapter 422, Laws of 1885, which also amends chapter 483 of Laws of 1883, authorized such corporations to make contracts to furnish water and provides that any such corporations that shall have made a contract with any town or village to supply such town or village "with pure and wholesome water may enter upon land or water for the purpose of making surveys, and to agree with the owner of the property which may be required for the purposes of the act authorizing *the formation of the company, and of the last mentioned act, as to the amount to be paid such owner, subject to revision by the court on application of any three taxable inhabitants of a town or village, and in case of disagreement contains authority to proceed and condemn the property needed for the purpose of the corporation.

Chapter 422, Laws of 1885, as amended by chapter 369,. Laws of 1889, makes it the duty of such corporations to contract with the authorities or with any of the inhabitants of any town or village through which the conduits or mains of such corporation may pass, or wherein such corporation may have organized, to supply any of its inhabitants, or authorities, with pure and wholesome water, at reasonable rates and cost to all persons or corporations who may wish to use the same, and further regulates the manner of making contracts and proceedings to authorize them.

In the Matter of the New Rochelle Water Works Co., 46 Hun, 525; 12 N. Y. State Rep., 646, it was held that these acts were valid, and conferred upon such companies the power to take lands by the condemnation proceedings provided therein.

It is argued by the owners that the acts that have been herein referred to, which organize this company, do not require it to furnish water to the village of Malone, or to individuals; that it may contract or refuse to contract as its interest may seem to dictate, and for that reason its operations are private and not for the public or for public use.

The same argument was presented by the owners of property sought to be taken for railroad purposes, and was answered by the chancellor (in 3 Paige, 74, 75), as follows: “ The objection that the corporation is under no legal obligation to transport produce or passengers upon their road, and at a reasonable expense, is unfounded in fact. The privilege of making a road and taking tolls thereon is a franchise, as much as the establishment of a ferry, or a public wharf, and taking tolls for the use of the same. The public has an interest in the use of the railroad, and the owners may be prosecuted for the damages sustained if they should refuse to transport an individual, or his property, without any reasonable excuse, upon being paid the usual rate of fare. The legislature may also, from time to time, regulate the use of the franchise, and limit the amount of toll which it shall be lawful to take, in the same manner as they may regulate the amount of tolls to be taken at a ferry, or for grinding at a mill, unless they have deprived themselves of that power by a legislative contract with the owners of the road.”

The Malone Water Works Company was incorporated to supply as much water to Malone village as it may need for municipal purposes, and to the inhabitants of that village as much water as they may need for domestic purposes as the same is necessarily used in the community residing in that village, and if upon request of the corporate authorities, or the people or corporations entitled to water, without reasonable excuse, water is re-' fused at reasonable rates, by the proper action the company can be compelled to furnish water for such uses, and if the rate demanded is unreasonable it can be determined by the court.

If the company fails to do what it was created for, its charter may be annulled in an action brought by the attorney general in the name of the people, on relation of an aggrieved party, and by future legislation the legislature may regulate the conduct of its business and the rates at which it shall supply water and annul its charter if it shall seem proper to do so.

It was not necessary that any contract should have been made to supply the corporate authorities with water. That is not made a condition under the laws incorporating petitioner. Sufficient is stated in the petition to show that petitioner had made an effort to agree with the owners and that an agreement was impossible. 82 N. Y., 196.

It is not necessary that the public uses, which the petitioner was created to supply, should be supplied before these proceedings are instituted. It is not necessary that the property asked for should be for immediate use, if the necessity for such use in the immediate future is established. In Matter of Staten Island Rapid Transit Co., 103 N. Y., 251; 3 N. Y. State Rep., 48.

The petition shows that the map required to be filed by chapter 156, Laws 1857, has been filed.

The owners claim that chapter 156 is unconstitutional and void for violation of § 16, art. 3 of the constitution, which provides that no local or private bill shall embrace more than one subject, and that shall be expressed in the title.

The act entitled “An act to incorporate the Malone Water Works Company” is a local bill. The creation of the Malone

Water Works Company is the subject of the act, and its general purpose. All measures which will of may facilitate its accomplishment are proper to be incorporated in the act, and are germane to the title. All matters contained in the act refer to the Malone Water Works Company, and, in a greater or less degree, tend to aid in carrying out the objects of its incorporation. The construction put upon this provision of the constitution appears from examination of the following cases. People ex rel. City of Rochester et al. v. Briggs, 50 N. Y., 553; In re Petition of Ferdinand Mayer, id., 504; Petition of Wm. B. Astor to vacate an Assessment, id., 363; Wrought Iron Bridge Co. v. Attica, 49 Hun, 513; 18 N. Y. State Rep., 589; S. C. on appeal affirmed, 119 N. Y., 204; 28 N. Y. State Rep., 973; In re Mayor, etc., of N. Y., 99 N. Y., 569 ; In re Petition of Lewis Knaust to vacate an Assessment, 101 N. Y., 188; McIntyre v. Allen, 43 Hun, 124; 6 N. Y. State Rep., 186, Cole v. State, 102 N. Y., 48, 58; 1 N. Y. State Rep., 354.

The following cases show examples of the violation of this provision of the constitution. People v. Hills, 35 N. Y., 449; People v. O'Brien, 38 id., 193; Huber v. People, 49 id., 132; Johnston v. Spicer et al., 107 id., 185, 202 ; 11 N.Y State Rep., 436; Matter of Petition of Blodgett et al., 89 N. Y., 392: Matter of Land in Town of Flatbush, 60 N. Y., 398.

The act is not void for violation of this provision of the constitution. The provision of § 12 of the act of 1857, which 'provides that on an appeal from the award of the commissioners the court may increase or diminish the amount of compensation, is in violation of art. 1, § 7 of the constitution, which requires that the compensation to be taken when private property is taken shall be ascertained by a jury, or by commissioners, and is void.

That portion of the law may be stricken out, and that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is void.

The remaining portion of the section allows an appeal, and the court, upon such an appeal, may confirm the report of the commissioners, or vacate the same, and order a new proceeding and appraisement. The unconstitutional provision does not affect the validity of the remaining portion of the law. Gordon v. Cornes, 47 N. Y., 617; People ex rel. Fowler v. Bull, 46 id., 69 ; Matter of the Village of Middletown, 82 id., 196, 202; Cooley on Const. Lim., 178.

Ladd & Smallman, the owners who oppose, have never consented to the taking of the water sought to be obtained in this proceeding, and in opposition to it they insist that whatever rights the petitioner had to take land or water against the will of the owner under chap. 156, Laws of 1857, and the amendments previous to chap. 36 of the Laws of 1890, that act took away such rights, and that now land or water needed for the purposes of this corporation cannot be obtained for the necessary purposes of the company except by the consent of the owners. 1 have maintained in this opinion that before the passage of this last act the petitioner, under its act of incorporation, was required to furnish water to the village of Malone for municipal purposes, and to the residents of that village who desired the same for domestic purposes, and that to enable the company to do this, it was given the right to take necessary land and water against the will of the owners, upon making the compensation required by the act. A corporation, when not specially prohibited by law, may conduct the business that it has authority to do in the same manner and through the same instrumentalities that an individual could conduct it.

As agreements, contracts, grants and leases for the sale, use and distribution of water that the company could lawfully furnish were the usual, proper and necessary instrumentalities of conducting the business, the company could properly make them before the passage of the act of 1890, and the provisions of that act, to the extent that the company had such right before, gave no additional rights. The company, before the passage of the act of 1890, could furnish water and take property to enable them to do it, as before stated. It could furnish water for private purposes of such character that the public had no interest in it, if it could get the water to furnish, with the consent of the owner, but no legislative act could give it the right to take water for any private use.

Chapter 36, of the Laws of 1890, amended § 17 of chap. 156, of the Laws of 1857, as amended by chap. 161, of the Laws of 1886.

The only respect in which the. section was amended by the act of 1890 was by addition thereto as follows: And the said company may make any agreements, contracts, grants and leases for the sale, use and distribution of water, for domestic, ornamental, mechanical or other purposes within the village or town of Malone that may be agreed upon between said company and any individuals, associations or corporations, which agreements, contracts, grants and leases shall be at reasonable rates, and shall be valid and effectual in law.” Section 2. “The foregoing amendments shall not be construed to authorize on the part of said Water Works Company any acts which may injuriously affect the rights of any parties having interests in the water taken by said company, under such amendments, and the claims of such parties to damage, if any they may have, are deemed reserved to them.”

No portion of the original acts are repealed, either by direct enactment or because other enactments inconsistent with them have been substituted in their place. All the provisions of the law in force in reference to petitioner must be construed together, and, if possible, effect must be given to each. The act of 1890 gives the Water Works Company the right, in addition to the right it had before its enactment, to furnish water for domestic purposes in the town of Malone and in said town and village of Malone to individuals, associations and corporations, for ornamental, mechanical and other purposes; that they may lawfully do, if they can obtain water with the consent of the owners, but for the additional purposes contained in the amendment that act does not, nor could any legislative act, authorize them to take water, without the consent of the owner, to be furnished for such purposes.

The general scheme of the law is not 'affected by the act of 1890. Upon the petition, on the assumption that it is true, commissioners should be appointed, with special instructions in regard to the appraisement of damages in accordance with the views herein stated. _


author: Lawrence, J.

text:
    Stephen P. Tregoning, Pl’ff, v. Richard F. Tregoning et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed April, 1891.)

    Title—Children of deceased vested remaindermen take the shares OF THEIR PARENTS.
    Where a deed conveys land to the grantee for life and at her death to go to her children, and expressly conveys to said children in fee subject to the life estate, said children take a vested future estate which is descendible, devisable and alienable, and the children of any child who dies take as heirs of their parents.
    Demurrers to complaint.

      James A. O’ Gorman, for pl’ff; Francis Lavelle, for def’t, J. C. Devine.
   Lawrence, J.

This is an action for the partition of land in the city of New York, and the complaint discloses the following facts: In 1858, one Patrick Devine, being the owner of the premises in question, conveyed the same to one David Stevenson, who, with his wife, reconveyed the same premises to Margaret Devine, wife of said Patrick Devine, for use during her natural life, and the said deed provided: “And after the decease of the said Margaret Devine, then the said house and lot shall belong and go to the children of said Patrick and Margaret Devine, in equal shares, and the said parties of the first part hereby grant and convey said premises in fee to said children of Patrick and Margaret Devine, subject to the life estate of said Margaret Devine, as above stated."

Margaret Devine, the grantee in said conveyance named, died in 1890. At the date of the conveyance by Stevenson and wife to her, there were five children living, but at the time of her death three of them had died, leaving John C. Devine and Michael J. Devine, defendants in this action, her only surviving children. The children of Patrick and Margaret Devine who died, before the latter all left issue.

The plaintiff, and the children and heirs-at-law of the deceased children of Patrick and Margaret Devine, who are defendants herein, claim to hold the premises described in the complaint as tenants in common with John 0. and Michael J. Devine.

Demurrers to the complaint have been interposed by John 0. and Michael J. Devine, on the ground that no cause of action is stated therein.

These demurrers are not, I think, well taken. A bare inspection of the deed will show that it was the intention of the grantors that the children of Patrick and Margaret Devine, living at the time of its execution, should have a remainder in fee, which vested immediately, subject to the life estate of their mother. The conveyance is to Margaret Devine during her natural life. * * * “ And after the decease of the said Margaret Devine, then the said house and lot shall belong and go to the children of the said Patrick and Margaret Devine, in equal shares, and the said parties of the first part hereby grant and convey said premises in fee to said children of Patrick and Margaret Devine, subject to the life estate of said Margaret Devine, as above stated."

Language could not more clearly express the intention of the grantors to vest the fee in the children of Patrick and Margaret Devine.

The case differs most essentially from Moore v. Littel, 41 N. Y., 66, the phraseology there used being to the grantee for life, “ and after his decease to his heirs and assigns forever." Here the conveyance vests the fee absolutely in the children, subject to the life estate, and by the provisions of the Revised Statutes there is a vested future estate if at the 'time of the creation of the estate there is a person in being who would have an immediate right to thé possession of the lands upon the ceasing of the intermediate or precedent estate. Sec. 13, 4 R. S., 2432, 8th ed. This estate is descendible, devisable and alienable, in the same manner as estates in possession. Sec. 35, 4 R. S.,2434, 8th ed. I agree with the counsel for the plaintiff that the children of the deceased children of Patrick and Margaret Devine take not as the grandchildren of the latter, but as the heirs of their respective parents, whose estates descended to them under the aforesaid statutory provision.

I am, therefore, of the opinion that the plaintiff is entitled to judgment overruling the demurrers, with leave to the defendants to answer over on payment of costs.


author: Pryor, J.

text:
    Samuel Rosenberg, Pl’ff, v. The Staten Island Railway Co., Def't.

      (New York Common Pleas, Special Term,

      Filed March, 1891.)

    Negligence—Consolidation of actions.
    Two actions for damages, one for injury to the person and the other for injury to property, each of such injuries resulting simultaneously from the same act of negligence, may be consolidated on motion.
    Motion to consolidate actions.

      F. J. Bischoff, for pl’ff: Tracy, McFarland, Ivins, Boardman & Platt, for def’t.
   Pryor, J.

The motion is, by defendant, to consolidate the actions. The one action is for injury to plaintiff’s horse and wagon by the negligent collision of defendant’s cars. The other action is for injury to plaintiff’s person by the same collision. The answers in both cases are literally identical.

By the express provisions of the Code, to be capable of consolidation, the causes of action must be such as may be united in a single complaint. Section 817. Here the two causes of action are not embraced in either of the first eight subdivisions of § 484 of the Code of Civil Procedure; the one being for injury to the person (subd. 2), the other for injury to personal property (subd. 6). The question then is, are they within the scope and intent of subd. 9 ? The causes of action do certainly arise out of the same transaction/ but are they of the character contemplated by this provision ? Its language is “ claims arising out of the same transaction,” etc. But a demand of damages from a tort is as strictly a “ claim ” as a demand for money due upon contract.

Since, then, the two causes of .action arise out of the same transaction, and are consistent, since the issues and the defenses in both are identical, and since the evidence to support and the evidence to 'defeat the actions must be the same in both, I can perceive no objection to their consolidation.

True, the elements and the measure of damages in the actions are different; but a statement of the amount of damages is not an issuable allegation, and no embarrassment on the trial can ensue from the diverse proof and measure of damages.

A motion to consolidate may be made any time before the cause is moved for trial. The Eleventh, etc., Bank v. Hay, 13 Daly, 328, 331. Moreover, a demand for consolidation was made before issue joined.

Hitherto the argument has proceeded on the hypothesis that the complaints exhibit two several causes of action; but is it so ? In both cases the cause of action is the negligence of defendant in running its train, and one and the same act of negligence is alleged as the occasion of each injury. In other words, by the same tort plaintiff is damaged in person and property; the tort is single, while the effects of it are double; and the question is, are there two several and separate causes of action? Or, is there but one cause of action, i. e. defendant’s negligent act, attended, however, with injurious consequences both to his person and property ? And since, for a wrong, plaintiff must recover all his damages, present and prospective, in a single action, would not a judgment in one of these actions be a bar to the other ? Is not plaintiff here “ splitting up ” a single cause of action into two?

. However this may be, to spare the expense and vexation of two trials when one will suffice for all the purposes of justice, these actions should be consolidated.

Motion granted, but without costs.


author: Daniels, J. Lawrence, J.

text:
    The People, Resp’ts, v. John O’Connell, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

      1. Assault—Attempt.
    Under an indictment for assault in the first degree, viz., an assault with an axe with intent to kill, the defendant may properly be convicted on a plea of guilty of an attempt to commit an assault in the first degree.

      2. Same.
    To constitute an attempt to assault nothing more is required than that the defendant should arm himself with the axe, or other deadly weapon, and endeavor to place himself in a position to use it by executing his intention to kill.
    Appeal from the judgment of the court of general sessions of the county of Hew York, convicting the defendant of an attempt to commit an assault in the first degree.

      Purdy & McLaughlin, for app’lt; McKenzie Semple, ass’t dis’t att’y, for People.
   Daniels, J.

The defendant was indicted for feloniously making an assault with an axe upon Thomas Daly, and striking, beating, cutting and wounding him, and thereby intending to kill him. And he was permitted, with the assent of the district attorney, to plead guilty of an attempt to make such assault, and was thereupon sentenced to imprisonment in the state prison for the term of five years. If he had been convicted of the offense charged, his imprisonment would be not less than five, nor more than ten years. Penal Code, § 220. And for the attempt to commit the crime charged, he was punishable for not more than half the longest time prescribed for the punishment of the crime attempted to be committed. Id., § 686, subd. 2. His punishment, therefore, will not exceed that to which he subjected himself by his plea if the act confessed by him has been made a crime by the laws of the state. And if that was within the crime charged in the indictment, he could regularly be convicted of it under this indictment. For upon an indictment for a crime the defendant may be convicted of an attempt to commit the crime charged. Id., § 35.

In support of the appeal the objection has been raised that there is no such crime as an attempt to commit an assault in the first degree, which is an assault with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death, with the intent to kill the person assaulted. Penal Code, § 217. To consummate this offence the law requires that the assault shall be actually made. And to make an assault, it is necessary that the accused shall appear to have struck “at another with a stick, or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword, or bayonet, or even holding up the fist in a menacing manner, throwing a bottle or glass with intent to wound, or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another.” 1 Russell on Crimes, 8th Am. ed., 750. This statement of the law includes assaults as they may be variously committed, and its correctness is sustained by the authorities. People v. Ryan, 8 N. Y. Supp., 241; 27 N. Y. State Rep., 916. And in its application to the present appeal it was essential to the crime as it was charged in the indictment that the defendant should have struck at his adversary with the axe within reaching distance, for if he did not there would be manifestly no completed assault Whether the assault charged be made by means of a firearm, or any other deadly weapon, it is necessary for the creation of the crime that the person intended to be assailed shall not be so far from the intended assailant as to be beyond all possibility of injury from him.

But that is not an essential circumstancé in the case of an attempt For the assailant may load a fire arm, and then start towards the person to be assailed in order to attain reaching distance of him, or when the assault is intended to be made with an axe, which is the weapon mentioned in the indictment, the accused may obtain and raise it intending to strike with it when too far away from the person intended to be struck, and then approach towards that person, and be intercepted before he can reach a position of danger to him, which would be an attempt to commit the crime charged. Each act would be an attempt to commit the crime charged. For, “ an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” Penal Code, § 34. For a person to provide an axe with which he intends to kill another, and afterwards approach towards him to make that use of it, but is prevented from doing so by the flight of the other, or by being himself disarmed or otherwise prevented from reaching his intended victim, are acts tending to effect the commission of the crime, within the language of this section of the Code. They are steps in the progress of the crime, but rendered unavailing by others frustrating and defeating the execution of the intention upon which the person himself had commenced directly to act The case thus presented is more than a mere intention, which would not be punishaable. McDade v. People, 29 Mich., 50; People v. Murray, 14 Cal., 159. It would be an intention coupled with acts appropriate, although not ensuring its execution. And that would be an attempt to perpetrate the crime intended to be committed. For that may be affirmed of some physical act sufficiently proximate to the result to be caused as to stand either as the first or some subsequent step in the actual endeavor to bring about or accomplish the result. McDade v. People, supra, 55. And so the law has been declared by a standard authority, in which it is said that “ so long as an act rests in bare intention it is not punishable, but immediately when an act is done the law judges not only of the act, but of the intent with which it is done, and if accomplished with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.” 1 Russ, on Crimes, 8th Am. eel., 46. And that was stated to be the law in People v. Moran, 54 Hun, 279,286, 292; 27 N. Y. State Rep., 18, and it has been since established by the final decision of the same case. 123 N. Y., 254; 33 N. Y. State Rep., 397.

In the present case, if the defendant approached Daly with the axe in his hand, that of itself would not have been a criminal act, but to approach him in that manner intending to kill him with the axe when he should be so near as to be able to effect that intent would be clearly criminal, and constitute an act in the way of committing an assault in the first degree. To make the assault itself it was necessary that he should be so near as to be able to strike him, and should attempt to do so. To make an attempt to assault him required no more than that he should arm himself with the axe and endeavor to place himself in the position to use it by executing his intention to kill. There is a clear distinction between these cases. The first would be the crime itself, the other an attempt to commit it, and that would bring the defendant within the range of the indictment, which included all attempts to commit the assault.

It does "not, and could not, appear from' the plea of guilty of the attempt, how that attempt was in fact made. But as the attempt could be committed, it is to be inferred from the plea that the defendant had committed it in some manner in which that could be done, and had thereby made himself amenable to punishment under the law; whether that was done in the way in which it has been stated the attempt might be made, or in some other equally effectual manner, is not important to the case. It is sufficient that the attempt could be committed, and the defendant, by his plea, confessed himself guilty of it.

The judgment, consequently, is free from all ground of error, and should be affirmed, as Mr. Justice Lawrence has, in his opinion,, concluded.

Van Brunt, P. J., concurs.

Lawrence, J.

The prisoner was indicted for the crime of assault in the first degree, committed as follows:

The said John O’Connell, late of the city of New York, in the county of New York aforesaid, on the second day of November, in the year of Our Lord one thousand eight hundred and ninety, with force and arms, at the city and county aforesaid, in and upon the body of one Thomas Daly, in the peace of the said People then and there being, feloniously did make an assault on him, the said Thomas Daly, with a certain axe, which the said John O’Connell, in his right hand, then and there had and held, the same being a deadly and dangerous weapon, then and there wilfully and feloniously did strike, beat, cut and wound him, the said Thomas Daly, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.

There was also a second count in the indictment, charging an assault in the second degree.

The prisoner upon being arraigned upon the said indictment, on the 4th day of December, 1890, pleaded not guilty. On the-8th of December, 1890, the prisoner, by leave of the court and the consent of the district attorney, and being represented by counsel, withdrew the plea of not guilty, “by him heretofore-pleaded, and now pleads guilty of an attempt to commit assault in the first degree.”

On December 12, 1890, he was arraigned at the bar, and the-district attorney moved for judgment against him. He was asked what he had to say why judgment should not be pronounced against him, according to law, and he having stated that he had nothing further to say than what he hath heretofore said, it was ordered and adjudged that the said John O’Connell, for the felony aforesaid, of which he was convicted, be imprisoned in the state-prison, at hard labor, for the term of five years.

It is now objected that the judgment appealed from is absolutely void, on the ground that there is no such offense known to the law as an attempt at assault in the first degree.

It is very obvious, from a perusal of the record, that the defendant intended to plead guilty of the commission of a very grave offense. It is also obvious that the indictment charged distinctly and specifically in its first count, that the defendant had committed an assault in the first degree upon the body of Thomas Daly. The count is in proper form, and it is not challenged as correctly stating a crime defined by the Penal Code (see § 217). This appeal is based upon the assumption that the district attorney and the court were led by a false and delusive statement of the prisoner’s counsel into accepting a plea of guilty to a crime unknown to the law, and the deduction is therefore claimed, that the prisoner having confessed to the commission of an act most reprehensible in its character should be allowed to escape upon a pure technicality from the consequences of his own confession. If such a result is required by the law, the court must so determine, but after carefully examining the record in the case, and the authorities cited, we do not think that the law requires the court to countenance the absurdity of the defendant’s using his own wrong to escape punishment for a most grievous offensa

It is perfectly well settled in this state that a defendant may in a criminal case waive any irregularity which may occur upon the trial. As was said by Earl, J., in Pierson v. The People, etc., 79 N. Y., 429 : “A prisoner may waive a trial by jury and plead guilty; he may waive a plea of autrefois acquit by not interposing it or withdrawing it; he may waive or withdraw a challenge to a juror; he could waive his right to have a challenge of a juror for favor tried by triers, and consent that it be tried by the court; he may waive objections to improper or incompetent evidence; in a court of special sessions he may waive a trial by jury and be tried by the court; he may waive a challenge to the array of jurors by a challenge to the polls; he could consent to the separation of the jury during the trial, when such separation, without such consent, would be ground of error. A man cannot legally be indicted and tried as accessory, to a felony until the principal be ‘Convicted; and yet, if he go to trial without insisting on the objection, he is held to have waived it. People v. McKay, 18 Johns., 212; People v. Mather, 4 Wend., 229, 245, 246; People v. Bathbun, 21 id., 509, 542; Stephens v. People, 19 N. Y., 549, 563 ; Gardiner v. People, 6 Park Cr., 155.

“ In People v. Rathbun, Cowen, J., said: ' The prisoner may even waive his right to a trial at the hands of a jury on the merits, by pleading guilty. Having this power, no one will pretend that he cannot consent to anything less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.’ ”

See, also, People v. Cignarale, 110 N. Y, 32; 16 N. Y. State Rep., 155; Bishop on Criminal Law, vol. 1, § 18, 3d ed. We are of opinion, therefore, that as the defendant voluntarily entered the plea of guilty in this case, and has made no motion in arrest of judgment, nor taken any steps to correct an error, if any error existed, which was created by his own act, it is too late for him now to complain of any informality in either his plea or sentence.

See, also, as to attempts to commit a crime, People v. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr., 102. But we are of the opinion, further, that no error was committed in either the plea or in the sentence. Common sense and not ultra refinement and nicety of criticism should be applied in construing the defendant’s plea. While the utmost care should be taken in criminal cases to preserve the rights of the accused, he should not be allowed, upon specious pretext and cunningly devised expressions, to mean one thing and say another. Of what did the defendant really plead guilty in this case ? Of a crime or of the shadow of a crime ? Not the latter! If such had been the understanding of the parties as to the nature of the defendant’s plea, it would not have been received.' He stood at the bar, indicted for a serious crime, with the district attorney ready to proceed with the trial.

"Voluntarily, he dispenses with the necessity of that trial by a plea of guilty. A plea of guilty of what crime ? of what offense ? Obviously, a plea of guilty of the crime for which he stood indicted under the first count of the indictment, i. e., the crime of assault in the first degree as charged in the indictment. Of an assault upon Thomas Daly with a deadly and dangerous weapon, to wit, an axe. It was to this indictment that the prisoner, by a fair interpretation of his plea, pleaded guilty, and the court would be doing violence to language, in our opinion, to hold otherwise.

The necessary result of these views is that the judgment of the court of general sessions was correct, and should be affirmed.


author: Lawrence, J. Van Brunt, P. J. (dissenting.) Daniels, J.

text:
    John H. Dwight et al., Resp’ts, v. Howard G. Badgley, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Contract—Wagering—Evidence.
    In an action for moneys alleged to be due on contracts for the sale of wheat, where the defense is that such contracts were wager contracts, to be carried out by a payment of differences and not by any actual sale and delivery, proof of former transactions alleged to be illegal, not embraced within the times specified in the bill of particulars, is not competent.
    2. Same.
    In such an action the defendant should be permitted to prove the intention of the parties at the time of making the contracts, and it is error to exclude questions put to the defendant as to his intention at that time.
    (Van Brunt, P. J., dissents.)
    Appeal by defendant from a judgment entered on a verdict for plaintiff rendered at circuit

      Edwin R. Leavitt, for app’lt; Robert Sewell, for resp’ts.
   Lawrence, J.

The complaint alleges that the defendant is indebted to the plaintiff in the sum of $1,997.50 upon an account, for certain goods purchased, services rendered and moneys advanced between certain specified dates; that payment of said sum has been duly demanded, but that no part thereof has been paid.

A bill of particulars, showing the account between the parties, follows the complaint in the printed case, by which it appears that, the amount claimed by the plaintiffs is due to them.

The defendant, in his answer, denies, among other things, any indebtedness to the plaintiffs, and avers, as an affirmative defense, that the plaintiffs at the times mentioned in the complaint were not dealers in the merchandise mentioned therein, nor had they possession or control thereof. Also, “that at the times mentioned in said complaint any and all transactions mentioned in said complaint, between these plaintiffs and this defendant, were had with the intent of the parties hereto not to make any actual sale or delivery thereof, but at maturity of the said contracts or transactions that the difference between the market value and the contract price should be paid by one party to the other.

“ That the market price of such merchandise at the maturity of the contracts was, at the times of making the contracts, contingent and uncertain; and that the contracts were mere wagers on the future market price thereof, and contrary to the statute.”

The learned justice before whom this cause was tried, at the conclusion of the evidence of both parties, directed a verdict in favor of the plaintiffs for the sum of $2,357.05, which verdict the defendant’s counsel moved to set aside, as contrary to law. He also moved for a new trial upon the minutes and upon the exceptions taken and upon all the grounds stated in § 999 of the Code of Civil Procedure.

This motion being denied, the defendant’s counsel excepted.

We will consider the exceptions taken by the defendant’s counsel in the order in which they appear in the case. On the cross-examination of Mr. Hodge, the broker of Dwight & Gillette, through whom the sales and purchases for the defendant were effected, the witness was asked this question: “Was that wheat ever delivered to Mr. Badgley ?”

It appeared by his previous testimony, .that prior to the transactions involved in this action the witness had other transactions with Mr. Badgley, the defendant, on account of the firm of Dwight & Gillette, the plaintiffs.

We think the ruling of the learned justice was correct.

In this case it is sought to stamp a transaction as illegal, as being in contravention of the provisions of the Revised Statutes against wagers or gaming. The statute is penal in its nature, and the burthen of proof is upon the defendant to establish the illegality of the contract. Story v. Salomon, 71 N. Y., 420.

Even if the parties had been guilty of entering into illegal contracts prior to the transactions upon which this action is based, as the plaintiff is entitled to the strictest proof in this case, we think that proof of former transactions alleged to be illegal, not embraced within the times specified in the bill of particulars, was not competent

The next exception was to the exclusion of the question at page 12, folio 36 of the case, as follows:

“ Q. At the time of making these contracts for the purchase of this wheat -and corn, was it not your intention and the intention of Mr. Badgley, to adjust the differences between the market price in buying and the market price in selling ?”

The exception was not well taken The question was too broad. It called not only for the intention of the witness, which might have been admissible, but also for the intention of the defendant. As to the defendant’s intention, the witness was clearly incompetent to speak.

The exception to the ruling at page 13 of the case, as to what was the general custom as to the delivery of the wheat or corn, cannot be sustained for the reason that no such custom is pleaded, and because no evidence had been given tending to show that the parties had any knowledge of such custom, nor that any general custom existed in relation to such transactions as are involved in this controversy.

The establishment of the existence of a general custom by evidence should have preceded the question which was put to the witness, and before such custom was established the witness could not properly be called upon to give a statement as to what the custom was. Harris v. Tumbridge, 93 N. Y., 93.

The observations just made apply with equal force to the exception on page 16, upon disallowing the questions to the defendant Badgley, as to his transactions with the plaintiffs prior to December 30, 1886. The question put to the defendant at page 16, folio 48 of the case, as to his intention and understanding that none of the grain should be delivered to him, but that the difference in the market price should be adjusted between the parties, should we think have been allowed. While the answer to it would not have conclusively shown what the intention of the plaintiffs was in entering upon the course of dealings with the defendant referred to by the witness, it involved an answer which the defendant was entitled to have presented to the jury; and which might have aided them in determining what was the real intention of the parties. Peck v. Doran & Wright Co., 10 N. Y. Supp., 401; 32 N. Y. State Rep., 405; Kenyon v. Luther, 4 N. Y. Supp., 498; 19 N. Y. State Rep., 32, and cases cited.

The case of Kenyon v. Luther, supra, decided by the general term of the fourth department, is directly in point

That was an action brought to recover for commissions earned and losses sustained by plaintiff under a contract with the defendant for the sale of a large amount of wheat. The defense set up was that such contract was intended as a cover for a gambling transaction, and that it was illegal and void under the statute. Upon the trial the defendants were asked directly whether they intended at the time to purchase or hold any wheat; or to sell any wheat; or whether it was their intention- to tender or call for the grain, or were to settle the difference between the price at which it was sold and the market price at the future day.

The questions calling for the intention of the defendants were objected to by the plaintiff’s counsel and the objections were sustained. Upon appeal, it was held that the exclusion of the questions was error, that the defendants were entitled to show what their intention was, and that such evidence should have been submitted to the jury.

Upon a subsequent appeal, after a verdict had been rendered in favor of the defendants, the court affirmed the judgment. See 10 N. Y., Sup., 851; 31 N. Y. State Rep., 1003.

■ For the error of the learned justice in excluding this question, we are of the opinion that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J. (dissenting.)

Although I agree that it was error to exclude the question as to what the defendant’s intentions were, such error in no way injured the defendant, because in the absence of proof that the plaintiffs had a similar intention, the defendant’s intention would not make the contract void. It is true that an attempt was made to prove what the intention of the plaintiffs was, but not by competent evidence.

The defendant not' sustaining any injury by the exclusion of the question relating to his own intention, the judgment should not be reversed because of that error. I think, therefore, that the judgment and order should be affirmed, with costs.

Daniels, J.

If the as to the defendant’s intention had been answered, it might have been followed by further evidence indicating the intention of the plaintiffs to have been the same. But without an answer to this question it would be useless to offer to make such further

If the answer had been taken, the defendant might also have been in a position to submit the further inquiry to the jury from the course of the dealings concerning the subject in controversy, whether that was not also the intention of the plaintiffs. By excluding the answer the defendant was not only deprived of this position but the evidence, if it could have been given, of the intention of- the plaintiffs, was rendered wholly inoperative. In this class of cases all pertinent evidence should be received, to discover the true nature of the transactions. The design generally is to avoid exposure and evade the law, and that should be prevented when it can be done by receiving in evidence all pertinent answers having the effect of disclosing the true nature of the transactions. I agree with Mr. Justice Lawrence that there should be a reversal of the judgment and a new trial.


author: Van Brunt, P. J. Lawrence, J. (dissenting.)

text:
    Sarah E. Mellen, Resp’t, v. William C. Banning, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Wills—Action to construe—Jurisdiction.
    The jurisciction of a court of equity to construe wills is incidental only to that over trusts, and will not he exercised except in actions involving trusts.
    2. Cloud on title.
    Such action cannot he maintained as one to remove a cloud on title by restraining the execution of a power of sale contained in a will where such power of sale is null and void on its face.
    (Lawrence, J., dissents.)

      Appeal by the infant defendants Mellen, by Jane H. Pierce, their guardian ad litem, from an order overruling demurrer interposed by defendants to the complaint in this action, and also from the interlocutory judgment overruling said demurrer, with costs.

      A. T. Ackert, for the guardian ad litem of the infant demurring def’ts ; H. Daily, Jr., for resp’t.
   Van Brunt, P. J.

This action, according to the complaint, is brought to obtain a construction of the will of one Abner Mellen, deceased, and also to restrain his executors from executing a power of sale contained in that will, upon the ground that such power was inoperative, null and void, and never had any validity. To this complaint the infant defendants demurred upon the ground that it does not state facts sufficient to constitute a cause of action.

While concurring with the conclusion arrived at by Mr. Justice Lawrence, in his opinion thereon, although the point is not distinctly taken by the counsel for the infant defendants, I do not think that the court ought to entertain jurisdiction of this action, for the reason that it cannot be maintained as an action for the construction of the will, because the jurisdiction of courts of equity to pass upon the interpretation of a will is incidental to that over trusts, and there is no question of trust in the will mentioned.

This rule was distinctly enunciated in the case of Monarque v. Monarque, 80 N. Y., 320, in which, in speaking of a certain action which had been brought to construe a will, it was held that the case was not a proper one for the action for the construction of a wili, because there was no trust or other element to justify invoking the jurisdiction of the court for that purpose. Therefore it is clear that this action cannot be maintained as an action to construe a will.

But it is urged that the action may be maintained for the purpose of removing a cloud upon the title, and in support of that proposition the counsel for the respondents cite the case of Butler v. Johnson, 111 N. Y., 204; 19 N. Y. State Rep., 85, and De Witt v. Van Schoyk, 110 N. Y., 7 ; 16 N. Y. State Rep., 726.

An examination of these cases will show that they do not support the claim in this action. It is a well settled principle regulating the invocation of the jurisdiction of a court of equity to remove a cloud upon a title that if the defect appears upon the face of the record or proceedings which are claimed to be invalid, the court will not entertain an action to declare such invalidity, and it is only where the claim of the adverse party to the land is valid upon the face of the instrument or proceeding sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality, that a court of equity will intervene.

Now, in the case at bar, it is claimed that the power of sale contained in the will is null and void upon its face. If that is the fact, then there is no room for the intervention of a court of equity, because it does not- depend upon extrinsic evidence.

That is the allegation and the judgment that is asked for.

The two cases above cited in no way conflict with this rule. In Butter v. Johnson the fact that the debts were outlawed, for the payment of which the executor was about to exercise the power of sale, was a fact extrinsic of the instrument creating the power, and, therefore, brought the case within the rule above mentioned.

In the case of De Witt v. Van Schoyk, the intervention of a court of equity was sustained, because unless the action of the defendant was restrained its effect would be to change or confuse the boundary of two farms and render their location doubtful and open over the land of the plaintiff a right of way through which the public would be allowed to travel; facts showing that the action against which an injunction was sought would confuse the plaintiff’s rights, which confusion would not necessarily appear of record.

It seems to me, therefore, that the court should not entertain jurisdiction of this action, and that the complaint does not state a cause of action within the rules limiting the invocation of the jurisdiction of a court of equity.

The judgment should be reversed and the demurrer sustained.

Daniels, J., concurs.

Lawrence, J. (dissenting.)

The action is brought for a judicial construction of the last will and testament of Abner Mellen, Sr., deceased, and to obtain an adjudication that under the devise contained in the 5th clause of said will the widow of the testator and his three children Abner, Mellen, Jr., Helen J. Banning and Maria L. Kendall, should acquire and become seized and possessed in fee simple absolute of an one-fourth part or share in the lands and premises mentioned in the complaint, and that the power of sale contained in the 8th clause of said will given to the executors of the testator is inoperative, null and void and that it never had any validity.

The infant defendants who are the children of Abner Mellen, Jr., a son of the testator who has died since the death of his father, demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action.

It is alleged in the complaint that the widow of the plaintiff and his three children entered into the use, occupation and possession of said lands and premises, and continued in such possession until the death of the mother, which occurred on the 28th day of September, 1888, and that during all that time said parties exercised control, dominion and ownership over their respective parts or shares in said lands and premises and collected and received for and applied to their own use and benefit the rents, etc., of said real estate. It is also alleged that on the 5th day of November, 1888, Abner Mellen, Jr., being indebted to his wife, executed and delivered to one Lawrence E. Ellis a full covenant warranty deed of his share in said lands and premises, and that on or about said date said Ellis executed and delivered to plaintiff, the wife of Abner Mellen, Jr., a full covenant warranty deed of the premises conveyed to him.

There are various allegations in the complaint designed to show that the power of sale conferred upon the executors by the 8th clause of the will has become inoperative by reason of the failure of the executors to exercise the same, and also by reason of the devisees having agreed and elected among themselves to take the real estate and use and occupy the same. These allegations being made as matters of fact are of course admitted by the demurrer.

We have no doubt that under the 5th clause of the will of Abner Mellen, Sr., the widow and the three children took an estate in fee in the real estate subject to the execution of the power of sale given to the executors. Crittenden v. Fairchild, 41 N. Y., 289 ; Kinnier v. Rogers, 42 id., 531; Hetzel v. Barber, 69 id., 7; Mutual Life Ins. Co. v. Shipman, 108 id., 22 and 24; 12 N. Y. State Rep., 802. It has, however, frequently been held that where a will directs real estate to be converted into money, and the proceeds distributed, the partiese ntitled thereto may, if of lawful age, if the rights of others will not be affected, elect to take the lands and prevent the actual conversion thereof into personalty, and that no distinct or positive act is required, but that a slight expression of intent will be considered sufficient to show such an election. Prentice v. Janssen, 79 N. Y, 478. As was stated by Mr.' Justice O’Brien in disposing of the demurrer interposed to this complaint by William C. Banning, the sole surviving executor of the last will and testament of Abner Mellen, Sr., deceased: “The complaint here was undoubtedly modeled on the case of Prentice v. Janssen, for we find the very language there used here employed. Thus it is alleged that the lands have been enjoyed, possessed and treated the same as real estate, and that this was done by the acquiescence of the executors, and all the parties in interest.’ ” With these allegations stated as matters of fact in the complaint it is impossible for us to say, keeping in view the decision in Prentice v. Janssen, supra, and in similar cases, that the complaint does not state facts sufficient to constitute a cause of action, and we are therefore of the opinion that the judgment of the court below was right, and should be affirmed, with costs and disbursements to the respondents.

Judgment reversed, and demurrer sustained.


text:
    The People ex rel. John W. Cochrane, Adm’r, Resp’t, v. Michael Coleman et al., Com’is of Taxes, App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Taxes—Exemption—Foreign capital.
    Foreign capital sent to this state for investment is exempt from taxation whether invested or uninvested. The fact that the owner has died and an ancillary administrator has been appointed does not affect that question, nor does the form in which the capital has been invested.
    Appeal from an order of special term vacating assessment on personal estate on the ground that the property in relator’s hands was exempt from taxation.

      William H. Clarke, for app’lts; Evarts, Choate & Beaman, for resp’t.
   Lawrence, J.

We are of the opinion that the case of The People ex rel. Ferrer v. Commissioners of Taxes, 42 Hun, 560; 4 N. Y. State Rep., 471; affirmed in 105 N. Y, 629 ; 7 N. Y. State Rep., 871, covers this case. In that case, one William Maden, who resided in Cuba, died, having, at the time of his death, on deposit with a firm in this city a large sum of money, which had been placed by him in their custody for investment The relator, who had duly qualified as executor in Cuba, in order to get possession of the property so deposited, took out ancillary letters in this state and thereafter demanded the money from the firm with whom it was deposited, who refused to pay it over.

He was assessed by the tax commissioners for the amount in the hands of the depositaries as personal property, but it was held that as the fund was sent here for investment by the deceased, the property was exempt from taxation under the provisions of § 5 of the Revised Statutes, page 389, as amended by chap. 176 of the Laws of 1851, and § 3 of the Revised Statutes, page 419. See 2 R. S., 1094 and 1160, Banks 8th ed.

. The object of these provisions was clearly stated by Rapallo, J., in the opinion of the court of appeals in Williams v. Board of Supervisors, 78 N. Y, 561. He says, referring to the foreign investor': “ Nothing can be more plain than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the state, and to encourage, and even invite, the sending of foreign capital here for investment. It is argued, however, that the exemption as to capital continues only so long as it remains uninvested, and that when invested, if the securities remain in the hands of the agent they are taxable. If such were the true construction of the provision it would be quite ineffectual, and rather a lure than a protection to foreign capitalists who might send their capital here to be invested under the assurance that it should be free from taxation.” * * *

These provisions are clearly designed to afford to the foreign capitalist who invests his funds here every conceivable protection. His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the state, he may with impunity send them back to an agent here for the collection of principal or interest And if, instead of being removed from the state, they are deposited here with an agent for collection, they are equally free. The capital is protected from taxation whether invested or uninvested, and whether the securities are taken away, or remain here for collection.”

If the property involved in this case had been assessed in the lifetime of the' decedent, it certainly could not be contended that the assessment could be sustained. The death of Mr. Smith, and the appointment of the relator as his ancillary administrator, did not work any change. The property still remained as part and parcel of the estate of Smith, which had been sent here for employment and investment within the meaning of the provisions of the statute above referred to, and the question before us is to be disposed of the same as if the assessment had been made in the lifetime of Smith. In the brief presented by the appellant’s counsel, it is sought to draw a distinction between this case and the case of the People ex rel. Ferrer v. Commissioners of Taxes, above referred to, on the ground that there it appears that a certain portion of the property on deposit was intended to be invested in United States securities and would, therefore, be exempt from taxation. Upon reading that case, however, it will be seen that although that fact is stated as one of the reasons for rendering the judgment there pronounced, the case is placed upon the broad ground that as the property was here awaiting investment, it was exempt from taxation.

It is quite clear from an examination of the case of Williams v. Board of Supervisors, that the form in which the capital of the foreign investor is invested can make no difference. See 78 N. Y, 566 and 567.

■ The order of the court below must, therefore, be affirmed, with costs and disbursements to the respondents.

Van Brunt, P. J., and Daniels, J., concur.


author: Van Brunt, P. J.

text:
    The Rector, etc., of the Holy Trinity Church, App’lt, v. The Rector, etc., of the Church of St. Stephen, App’lt, James Blackhurst et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Religious corporations—Appearance by attorney.
    A committee of the vestry of a church was appointed to adopt legal measures to consolidate said church with another, but the members thereof were subsequently ousted from office as vestrymen. Notwithstanding this they employed an attorney to appear for the church in an action brought by the other church to enforce the agreement of consolidation. On motion of the remaining vestrymen an order was made striking out the appearance and answer served by said attorney and to compel plaintiff’s attorney to accept notice of appearance from an attorney to be selected by them. Held, no error; that the appearance of said attorney was entirely unauthorized, as the committee after such ouster had no power to act for the corporation.
    2. Same—Costs.
    The plaintiff having accepted the answer with knowledge of the facts, it was properly charged with costs, although no actual collusion between it and said attorney was shown.
    Appeal from order striking out, vacating and setting aside notice of appearance and answer served by Andrew J. Shipman, attorney on behalf of defendant corporation.

      Wager Swayne, for def't corporation, app’lt; Charles Blandy, for pl’ff, app’lt; D.G. Hollins, for resp’ts.
   Van Brunt, P. J.

This action was brought to compel the defendants to affix the seal of the defendant corporation to an alleged agreement of consolidation, to present the same to the bishop and standing committee of the Diocese of New York for approval, etc.

A committee of the vestry had been appointed by the rector of the defendant corporation to adopt the requisite legal measures for consummating the action of the two parishes. Since their appointment these committeemen have been ousted from their offices as vestrymen, and in the case of the People ex rel. St Stephen's Church v. Blackhurst, decided at the last term of this court it was held that they thereafter had no power to exercise any of their rights as committeemen. 37 N. Y. State Rep., 720.

This action, however, having been brought as above mentioned the said committee, assuming to represent the defendant corporation, employed one Andrew J. Shipman to appear as the attorney of the corporation, virtually confessing judgment.

The three members of the vestry who still remained in office (all the others having been declared to have been fraudulently elected) then presented their petition to have said answer and retainer stricken out, and to compel the plaintiff’s attorney to accept a notice of appearance from an attorney to be selected by them. This motion was granted, with costs against the plaintiff.

It is clear that the appearance of Shipman was entirely unauthorized. The committee who assumed to authorize him no longer had any power to meddle with the affairs of the defendant corporation, and the only representatives of the corporation were the vestrymen who still remained, and who, although they did not constitute a quorum of the vestry, had the right to protect as far as in their power the interests of the corporation; because it cannot be claimed for a moment that there being no sufficient number of trustees of a corporation in existence to constitute a quorum, that thereby the corporation is powerless to protect itself and must allow judgment in every action brought against it by designing persons to go by default

Therefore it was proper for the court to make the order which it did, compelling these plaintiffs to accept the appearance of an attorney authorized by all that remained of the board of trustees of the church in order that the rights and interests of the church might be protected.

As to the claim upon the part of the plaintiffs that they should not be saddled with the costs in this case, we see no reason for interfering with the provisions of the order.

We think it is apparent that this action was brought for the purpose of getting a judgment which might forestall the action of any vestry which might be elected who truly represented the interests of the defendant corporation.

Whether there was collusion with the attorney who appeared or not, we think it is plainly evident that the object of the action was to get a judgment without giving the defendant corporation a real opportunity to be heard upon the merit s; and they knew when they accepted the answer and the appearance from Ship-man that his authority arose from a committee which had absolutely ceased to exist

Under these circumstances, we do not think there was any hardship in imposing costs upon the plaintiff, and the order appealed from should be affirmed, with ten dollars costs and disbursements against the plaintiff.

Daniels and Lawrence, JJ., concur.


author: Macomber, J.

text:
    Joseph P. Olp et al., App’lts, v. William Leddick et al., Overseers of the Poor, et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Taxpayers’ act —Action under, does not lie to restrain settlement OP ACTIONS POR VIOLATION OP EXCISE LAW.
    An action cannot be maintained under the taxpayers’ act, Laws 1881, chap. 531, to restrain the settlement by overseers of the poor of actions brought for violations of the excise laws.
    3. Excise—Settlement op action.
    The court will not interfere with a settlement by the overseer of the poor of an action for excise penalties which is honestly made in furtherance of a general public opinion and upon fair and reasonable terms.
    Appeal from a judgment entered in Livingston county, April 14, 1890, on the decision of the special term dismissing the plaintiffs’ complaint upon the merits.

      W. Martin Jones, for app'lts; Charles J. Bissell and E. A. Nash, for resp’ts.
   Macomber, J.

The plaintiffs bring this action under chap. 531 of the Laws of 1881, as amended by chap. 673 of the Laws of 1887, commonly spoken of as the taxpayers’ act, for the purSose of restraining the settlement by the defendants Leddick and Zelsall, who are overseers of the poor of the town of Mt. Morris, of certain actions pending against the defendant Cassidy and others to recover penalties in actions brought for violation of the excise laws of the state.

From May 3, 1887, to the 15th day of March, 1888, the defendant Cassidy was a bartender in a saloon in the vilage of Mt. Morris, and while there sold intoxicating liquors at retail without a license, either in his own name or the name of his employer, in quantities of less than five gallons at a time.

The defendant Leddick, and his co-overseer at that time, one William Narragan, had been requested by one of the plaintiffs to bring an action against Cassidy for the penalties incurred by him in such illegal sale of intoxicating liquors. Accordingly such overseer did commence an action in the supreme court against Cassidy for such cause or causes of action, the complaint containing one hundred separate counts or causes of action, and in which a judgment for $5,000 was demanded. Subsequently, one John Olp having been associated with Leddick as a co-overseer of the poor, negotiations were had by which the defendant Led-dick entered into an agreement with Cassidy without the concurrence or consent of his associate, except that Olp had notice of an intention and an attempt to settle, which negotiations resulted in a settlement for the sum of fifty dollars penalty and one hundred dollars costs, the terms of which were fully complied with by the defendant in that action, he having paid over the money and the costs to Leddick. Leddick’s co-overseer of the poor, John Olp, in no respect consented or concurred in such settlement Other actions were pending by Leddick and Narragan as such overseers, instituted in the supreme court, against sundry other parties for like penalties. Large expenses were incurred in the prosecution of these actions, the bills of which were presented to the board of supervisors of the county of Livingston at its annual session in the year 1888 for audit. A strong public sentiment was created against the prosecution of those actions. On the 27th day of December, 1888, Leddick, in good faith, believing it to be for the best interests of the taxpayers in the town and county, made the settlement above-mentioned, and at the same time settled the other actions against the persons named, except one, upon the same terms made with Cassidy. It is abundantly shown that while Cassidy was probably good for a larger amount than he actually paid, that the defendants in the other actions were in many, if not most instances irresponsible. But Leddick insisted that all of the actions, with the exception named, should be settled and the money paid in behalf of the irresponsible defendants, as well as in behalf of Cassidy.

Upon hearing these facts, the learned trial judge dismissed the plaintiffs’ complaint upon the merits without putting the defendants to their proofs. In this conclusion we think he was clearly right, for two reasons: The first is, that the plaintiffs have no standing in court to maintain an action of this character. The object of the taxpayers’ act is to enable citizens to prevent waste or injury to the funds or estate of a municipality and to make good and restore any property which may have been unlawfully taken. It is for the purpose of preservation of the funds of the municipality that this act and its amendments were passed. An actual or threatened injury or waste of property or public funds enables the individual taxpayer to call upon a court of equity to interfere. Ayers v. Lawrence, 59 N. Y., 192.

The case of Standart v. Burtis, 46 Hun, 82; 15 N. Y. State Rep., 145, upon which the appellants chiefly rely, has no application to the question here considered. That was an action to restrain the fraudulent and unlawful settlement and satisfaction of a judgment which had been recovered against violators of the excise law, which judgment had been affirmed by the general term of the supreme court, and was pending on appeal in the court of appeals. A party charged in a judgment is charged under the highest form of a civil contract to pay. The case presented by Standart v. Burtis was one where there was shown to be an abuse of the discretionary power lodged in the excise commissioners in settling for a nominal sum a substantial judgment of $2,000 which was good and collectible against the party against whom a recovery had been had for selling liquors without a license. The distinction between the two cases is so obvious as hardly to require further comment.

This action, however, is not within the scope of these statutes. It is not brought to restore any funds that have been embezzled, diverted or dissipated. It is not for the purpose of preventing the waste or illegal use of any such funds. Under chap. 109 of the Laws of 1878, being an amendment of the act of 1857, and other acts, the overseers of the poor of the town have a right to sue for and recover the penalties prescribed by the excise laws. These penal statutes were a part of the repressive laws of the state, designed to regulate and to some extent restrain the sale of intoxicating liquors. Those parts of such laws which gave a right of action for a penalty do not proceed upon the ground of any actual indebtedness existing by contract from the person who has been guilty of an infraction of the law, but, on the contrary, on the ground of the party’s guilt of an offense punishable both by criminal process ana by the quasi criminal prosecution of an action for a penalty. In no legal sense can it be said that such a claim made in behalf of the overseers of the poor of the town is for the purpose of preventing waste. It is solely for the purpose of punishing the violator of the law. For this reason we think the plaintiffs have no standing in court to enable them to maintain this action.

But there is an [additional ground upon which the decision of the learned justice at special term may be sustained, namely: That an overseer of the poor may settle and discontinue an action, whether brought by himself or his predecessors, when honestly made, as was done in this case. Bellinger v. Birge, 54 Hun, 511; 28 N. Y. State Rep., 116; People ex rel. Hammond v. Leonard, 74 N. Y., 443.

The evidence and the findings show that the settlement of these actions was honestly made in furtherance of a general public opinion, expressed through the board of supervisors and otherwise, and upon terms which were fair and reasonable. The allegations of the complaint to the effect that the settlement against Cassidy was a conspiracy to defraud the people of the town of their just and lawful dues, and to work a waste and injuries to the funds, property and estate of the town, are not supported by an item of proof in the case. The plaintiffs have failed to establish any fact which would justify a court of equity in interfering with the settlement so made by the overseers of the poor.

The judgment appealed from should be affirmed, with costs to each respondent separately appearing.

Dwight, P. J., and Corlett, J., concur.