author: Gray, J. Peckham, J.

text:
    The People ex rel. Peter Nechamcus, App’lt, v. The Wardens of the City Prison, Resp’ts.

      (Court of Appeals,

      Filed January 29, 1895.)

    1. Constitutional law—Personal rights. -
    The natural right to life, liberty and the pursuit of happiness is not an absolute right, but must yield, whenever concession is demanded by the welfare, health or prosperity of the state.
    2. Same—Legislative discretion.
    Where legislation is calculated, intended, convenient or appropriate to accomplish the good of protecting the public health and of serving the public comfort and safety, the exercise of the legislative discretion is not the subject of judicial review.
    3. Same—Construction.
    The courts will always assume that the legislature intended by its enactment to promote those ends and, if the act admits of two constructions, that will be given to it which sustains it and makes it applicable in furtherance of the public interests.
    4. Same.
    The constitutionality of an act is not to be determined by the manner in which its provisions may be carried out by those upon whom that duty depends.
    5. Same—Act of 1892.
    Chap. 602 of 1892 is constitutional.
    6. Plumbers—Certificate.
    Whenever a person holds himself out to the public as a plumber, undertaking to do work as such, he must, if he employs assistants to perform the work, comply with the law and procure his certificate.

      Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of special term dismissing a writ of habeas corpus, and remanded the relator to the city prison.
    The relator was arrested and convicted for doing busines as a master plumber in the city of New York, in violation of the provision of chapter 602 of the Laws of 1892. A writ of habeas corpus was sued out by him and he was brought before the special term of the supreme court, where, after a hearing, the writ was dismissed and the prisoner remanded to the custody of the defendant. On appeal to the general term, the order of the special term dismissing the writ was affirmed and the relator has now appealed to this court.

      Roger Foster, for app’lt; John R. Fellows and John D. Lindsay, for resp’t.

      Reversing, 63 St. Rep. 283.

   Gray, J.

The act, for the violation of the provisions of which the relator was arrested and convicted (chapter 602 of the Laws of 1892), created a board for the examination of plumbers; which, in the cities of New York, Brooklyn and Albany, was to be known as the “examining board of.plumbers,” and in other cities of the state as “ the examining and supervising board of plumbers and plumbing.” The members of the board were to be appointed by the mayor and were to consist of five persons; two of whom were to be master plumbers, of not. less than ten years’ experience in the business of plumbing, and one was to be a journeyman plumber of like experience. The two other members of the board were to be the chief inspector of plumbing and drainage of the board of health and the chief engineer having charge of the sewers. The fourth section of the act empowered the several boards of examiners to examine all persons intending to engage in the business of plumbing, “ as employing plumbers; ’’ with the power to examine all persons applying for certificate of competency as “ employing or master plumbers,” or inspectors of plumbing; to determine their fitness and qualifications for conducting such business, and to issue certificates of competency to all such persons as, upon a satisfactory examination, were determined by the board to be qualified for conducting the business, “as employing or master plumbers,” or inspectors of-plumbing. The fifth section requires any person intending to conduct “ the trade, business or calling of a plumber, or of plumbing * * * as employing or master plumber,” to submit to examination before the board as to his experience and qualifications in such trade, business or calling, and declares that, after September 1st, 1893, it shall not be lawful in any city of this state for any person to’conduct such “trade, business or calling, unless he shall have first obtained a certificate of competency from the board of the city. The sixth section provides that on and .before September 1st, 1893, every “employing or master plumber,” carrying on his “trade, business or calling” in any city in this state, shall register his name and address at the office of the board of health of the ci.ty, and that he shall thereupon be entitled to receive a certificate of such registration; provided that, at the time of his application for registration, lie holds a certificate of competency from the examining board. A further provision of the section makes it unlawful for any person to engage in the “ trade, business or calling ” of an “ employing or master plumber” without such registration. The thirteenth section provides that any person violating any of the provisions of the act, or any regulation of the board of health, or of the board of examiners, shall be deemed guilty of a misdemeanor, etc.

The relator was a master plumber, who had practiced his trade for some years past in the city of New York. He does not allege that he had applied for examination, or had been refused a certificate of competency from the examining board of plumbers of the city of New York; but he alleged in his petition his trade, his religion and Russian nationality, and then set forth various refusals of the board in that city to grant certificates to other persons, because discriminating against race and religion and because óf their not belonging to an association of master plumbers. He says that the act is void, as a deprivation of his liberty and property, without due process of law; inasmuch as it grants to the individual members of the examining board of plumbers an exclusive privilege, immunity and franchise. He says that it is a denial to him of the equal protection of the laws of this state and that it is a discrimination against him on account of his race. In specification of his objections he says, first, that the object of the act is to create a monopoly; because, if intended to secure good plumbing work, it would apply to journeyman plumbers, and independent plumbers who work alone, or with the aid of apprentices, and do not employ other plumbers; and second, that even if the act applied to all plumbers, journeyman as well as master, it would still be unconstitutional.

As a preliminary observation, I may say that the first ground partakes more of criticism upon the extent to which the legislature has gone. Every person may follow the trade of a plumber, if he chooses, and the restriction is upon their employing men to work for them in their business, unless they 'hold a certificate of competency based on experience and qualifications. Another observation is that the act does not suggest, as the appellant says of it, any “discrimination against him on account of his race.” That is pure supposition; based upon the way he claims to have seen the board perform its duties, and not upon the language of the act, or any possible inference therefrom. A final observation is that it is not made to appear by the petition for the writ that the relator has suffered anything at the hands of the board of examiners. In the absence of any allegations that he applied for examination ; that he passed the examination satisfactorily and that the board unjustly, or otherwise, refused him the certificate, we must assume, under his allegations of his competency and skill as a plumber, or master plumber, that he could have successfully applied for the certificate, which the board was authorized to grant.

It seems to me that the constitutionality of this act is to be tested by its effect upon the citizen’s right to pursue a lawful employment. If it imposes an arbitrary restriction and if it has no reference to the welfare and health of the people, it must be condemned. I am not unwilling to concede that the acts skirts pretty closely that border line, beyond which legislation ceases to be within the powers conferred by the people of the state, through the Constitution, upon its legislative body. When the legislature passes an act, which plainly transcends the limits of the police power of the state, it is the duty of the judiciary to pronounce its invalidity and to nullify the legislative attempt to invade the citizen’s rights. The court should never hesitate to interpose the barrier of its judgment against the operation of laws, which distinctly contravene constitutional rights. There has been much discussion upon the subject of what is a valid exercise of the police power of the state through legislative enactment and there is little to be added to what this and other courts have said. The police power extends to the protection of persons and of property within the state. In order to secure that protection, they may be subjected to restraints and burdens by legislative acts. If the act is a valid and reasonable exercise of the police power of the. state, then it must be submitted to, as a measure designed for the protection of the public and to secure it against some danger, real or anticipated, from a state of things, which modifications in our social or commercial life have brought about. The natural right to life, liberty and the pursuit of happiness is not an absolute right. It must yield, whenever the concession is demanded by the welfare, health, or prosperity of the state. The individual must sacrifice his particular interest or desires, if the sacrifice is a necessary one in order that organized society as a whole shall be benefited. That is a fundamental condition of the state and which, in the end, accomplishes by reaction a general good, from which the individual must also benefit. The restraint of personal action is justified, when it manifestly tends to the protection of the health and comfort of the community, and no constitutional guaranty is then violated. People v. Ewer, 141 N. Y. 129; 56 St. Rep. 668. The legislature, however, is not authorized to enact measures which, under the mere guise of a protection to the citizen, restrains him in the free pursuit of a lawful occupation and such legislation this court has had occasion, within recent years, to condemn. In re Jacobs, 98 N. Y. 98 ; People v. Marx, 99 id. 377 : People v. Gillson, 109 id. 389; 16 St. Rep. 185. In the Gillson case it was observed by Judge Peckham that if legislation is calculated, intended, convenient or appropriate to accomplish the good of protecting the public health and of serving the public comfort and safety, the exercise of the legislative discretion is not the subject of judicial review ; but those measures must have some relation to those ends. To this unassailable proposition I will add the remark, that the courts should always assume that the legislature intended by its enactment to promote those ends and if the act admits of two constructions, that should be given to it which sustains it and makes it applicable in furtherance of the public interests. What is, then, the construction which this act should receive from the court? In the first place, the intendment is warranted that the drainage and sewerage, whether of public works and buildings, or of private tenements, shall be as skillfully planned and carried out, as the modern standard of the science admits. Whatever the individual doubts as to the benefits or success, in a sanitary sense, of the work of plumbing as now practiced, it is generally recognized to be essential to comfort and health; and that it should be the subject of some supervision by the authorities ought not to be put in question. The very doubt should make us hesitate to place any obstacle in the way which the legislature, in its discretion, adopts, in order to accomplish something by which large communities shall benefit in their health and comfort. Is this statute not a regulation of trade, which is in the public interest; The trade very closely concerns the inhabitants of cities and it should require no argument to show that the more skillful and the more competent the plumber, who is employed to do some large work upon the drainage and sewerage system of a city, or of a public or private building, the greater the security to those inhabitants.

This act does not restrain individuals from working as plumbers. It restrain persons from engaging in the business of master or employing plumbers; unless, from experience and qualifications, they are shown to be, themselves, of competent skill. We know that important plumbing work calls for plans and designs and requires skilled supervision. It is some guaranty of these requirements being met, that the plumber, employed upon the particular work and who must employ plumbers and assistants in carrying out the work engaged upon, is competently certified and, therefore, held out to be skilled and capable in his business. The layman in his ignorance is obliged to put some trust in the plumber he engages; for the plumber’s work is not only one calling for the exercise of skill, but it is done in places which are dark, or more or less inaccessible. The legislature in creating a system by which the qualifications of plumbers, who propose to have work performed by others under their direction, as it seems to me, aids the •citizen, in an important degree, in placing his confidence and furnishes some safeguard against the performance of bad and unsafe work. That the men employed by the master plumber may prove untrustworthy in practice, or may neglect the work committed to them, certainly can furnish no ground for attacking the purpose of this statute; for the presumption and the natural probability are the other way, that a master plumber, who has been certified by the board, will exercise care in the selection of his employes and that he will be competent to see and correct their faults and omissions. Every reason, in my opinion, which bears upon the citizen’s comfort and health, demands that we sustain this statute as a step in the right direction.

Nor is the act vicious for affecting the general individual; or as operating as some restraint” upon other business occupations, in connection with which the work of plumbing may be undertaken; as, for instance, in the case of a contract for the erection of a building, which may include the doing of the plumbing work. As I have previously observed, it does not operate to prevent the individual from following the trade of a plumber. It, merely and only, requires of those who propose to do business as master-plumbers, to submit to an examination as to their general competency. The application of the statute is to persons following the trade of a practical plumber. The terms “ trade, business or calling,” employed in the statute are synonymous and have relation to the mechanical employment. One’s trade is that business which he has learned and fitted himself to follow and when the legislature speaks of a “ person intending to'conduct the trade, business or calling of a plumber,” it has used the words, as they would, naturally and ordinarily be understood by all, and, particularly,, by that class of the people to whom they were intended to apply.

. So, regarded, there can be no reasonable doubt that the application of the statutory provision is to the person, whose actual and real occupation is that of the practical plumber. It cannot have a. more extended application, nor comprehend those persons whose-business is not that of the plumber, as it is understood to be. Kindred occupations would not be affected. Whenever a person holds himself out to the public as a plumber, undertaking to do work as such, he must, if he employs assistants to perform the work, comply with the law and procure his certificate.

Now is it a ground of objection that, as the statute was intended to apply only to master or employing plumbers, the inference follows that a monopoly in the business is created or sanctioned It-may, or may not, have been wiser that the legislature - should require examinations by, and certificates from, the examining boards in the case of every person engaged in the business of plumbing but if the act is a step in the direction of something which will enure to the public health and comfort, that it does not go as far as it might, is not a reason for invalidating it it. I am able to see how this act may limit the number of master plumbers, and with great wisdom ; but I am not able.to see how any monopoly will necessarily follow. The purpose of the act is in the direction of limiting the business to those persons who will perform the work, presumably, with some regard to the public health and comfort and it would be a misuse of language to speak of such provisions as creating, or even tending to create, a monopoly. As well might it be said that to compel physicians, or druggists, to take out. licenses, is a provision giving a monopoly of the particular business to those who become licensed. If the measure is not so obvious a precaution in the case of plumbers, as in that of physicians, or of druggists, is that a reason for condemning it, if it may reasonably be considered as some precaution ? I think not and I think the measure, as one relating to the general health of cities, is evident and intended to be so from the provisions of the act; which require the board of examiners to contain the chief examiner of the city sewers and the chief inspector of plumbing of the board of health ; which require not only registration with the board of health, but that the business shall be conducted under rules and regulations prescribed by that board, and which authorize that body to cancel registrations, for violation of rules and regulations for the plumbing and drainage of the city.

¡Nor is the constitutionality of an act to be determined by the manner in which its provisions may be carried out by those upon whom devolves the duty of acting as examiners. If they act unfairly or oppressively, as alleged by the relator in his petition, that is conduct which may call for a remedy against the persons who compose the board; but it does not furnish ground for assailing the validity of the statute. As the act was framed it provided for an impartial board, made up of persons to whom, in human intendment, such duties as were imposed could safely be entrusted for performance.

I deem it unnecessary to refer to the other objections to this act-They were sufficiently answered at the general term. It is my opinion that it would be unfortunate for the public interests, if this statute should be condemned. It is a step in a direction which should be encouraged ; for it does distinctly relate to the public health and welfare.

The order appealed from should be affirmed.

Peckham, J.

(dissenting).—I dissent from the judgment of the majority court case. It unnecessary to enlarge upon the subject, but I desire to record my grounds of dissent as clearly as I can.

The act does not state that it is passed in order to preserve the "public health. It is sought to be upheld on that ground and as an exercise of that branch, of - the police power of the state which pertains to the public health. It seems plain to me that the statute has no legitimate tendency to preserve, protect or defend the public health. Any plumber, however ignorant of his trade he may be, can, under this act, be employed to do any kind of plumbing work, and without having his work subjected to any kind of supervision or inspection. He is absolutely free and so is his work. The statute only prohibits him from employing others to'work for him, from being, in other words, a master plumber. In order to become a master plumber he must obtain this certificate. The chance to obtain it lies through an examination into his capacity and his knowledge of his trade, to be certified to by the board of examiners, of which a proportion of master plumbers is to form a part. Thus his right to work in his trade is circumscribed and limited by force of this statute, and he is compelled to pay a certain amount before he is permitted to pass the examination.

It is said this is proper and right in order that the public may have some assurance that the master or employing plumber is not alone capable of following his trade as such, but that he has sufficient knowledge of the laws of health as applicable to plumbing to enable him scientifically to follow that trade as a master plumber. It is to be observed that the examination does not necessarily call for any such knowledge. The act can be complied with, so far as this examination is concerned, if the applicant has but the most ordinary knowledge of the laws of his trade and the proper way to follow it practically. It is true the board may demand much more than that, and much more than was ever necessary to practically pursue the trade. If such additional knowledge were exacted it would be in fact adding to the known and ordinary qualifications necessary to carry on the well-recognized trade of a plumber, those other and entirely different and much superior qualifications necessary in one who intended to conduct the professional business of a sanitary expert with regard to systems and general plans of plumbing. The legislature has no power to impose such a condition upon one desiring to exercise such a trade. It has, as I believe, no power to prescribe that an individual who desires to follow the trade of a plumber shall be possessed of qualifications which do not naturally pertain to such a calling, and which are only possessed by persons qualified for the pursuit of a very different occupation, involving learning and skill of an uncommon order. The legislature might probably provide for a sanitary inspection of plumbing work and thus secure a kind of work, as to its system and sufficiency, which might fairly be said to tend towards the protection of the health of the general public. But the trade of the practical plumber is not one of the learned professions, nor does such a tradesman hold himself out in any manner as an expert in the science of “sanitation,” nor is any such knowledge expected of him, and this act, when practically enforced, may or may not exact it of him. This board has the very greatest and an entirely arbitrary discretion as to “what qualifications it will exact from the applicant. It may make an examination which none but an expert in sanitary knowledge •could pass, or it may make the examination entirely perfunctory. Judging from the other features of the act, it will depend upon considerations which are foreign to any question of health as to •what kind of examination will be made.

If the broader and more severe examination is held, or the greater qualification is insisted on, the imposition of such a condition in the case of a workman upon his natural right to work at his ordinary trade renders the act under which such a condition can be imposed unconstitutional. Whether in all cases the condition would be insisted on is immaterial. It is the power to insist upon it under the law which makes the law itself void..

And yet¡ if the more severe examination is not made, and the superior qualification exacted, the act is absolutely worthless as a health measure. If it is intended as an act simply to secure the ordinary capacity necessary for the prosecution of the trade of a plumber, it is useless and vexatious, and not a health regulation in any form. If it exact more, it is an improper addition to the qualifications of a simple tradesman. This act permits the greater ■exaction to be made.

It seems to me very absurd to treat this statute as one which in any possible manner affects, or which was really intended to affect, the public health. And when it is seen that the work of the master plumber may be performed by journeymen who have •been subjected to no official examination, and whose work need not be examined by any one, not even by the master plumber himself, the radical failure of the act to protect the public health is quite apparent. Sewer gas is dangerous, but exactly how to treat the matter of plumbing in order to . run the least danger therefrom, is a subject for professional learning and skill, except as to the narrow part of the tradesman-plumber, which is to see to it that his pipes do not leak, and that they do not permit the escape of gas. This part is mechanical and easily understood, and is the part which the tradesman performs, and the system, the proper arrangement thereof, and such kindred questions, are for the determination of a more scientific and a more learned body of men.

The examination provided for by this act, if conducted for the sole purpose of discovering the qualifications of an applicant in regard to those matters which pertain and are germane to the real and practical trade of a plumber, will not have the slightest tendency to discover whether he has also the requisite knowledge to enable him to act as a sanitary expert.

Taking the act as a whole, it would seem quite apparent that its purpose is to enable the employing plumbers to create' a sort of guild or body among themselves, into which none is to be permitted to enter excepting as he may pass an examination, the requisites of which are not stated, and where his success or failure is to be determined by a board of which some of their own number are members. In order to be at liberty to exercise his trade as a master plumber he must pass this examination and become a member of this favored body. It is difficult for me to see the least resemblance to a health regulation in all this.

I think the act- is vicious in its purpose and that it tends directly to the creation and fostering of a monopoly.

It seems to me most unfortunate that this court should by a strained construction of the act as a health law, give its sanction to this kind of pernicious legislation. We shut our eyes to the evident purpose of the statute, and by means of maxims well enough in their way, but sadly out of place here, impute a purpose to the legislature which it plainly did not have, and which, if it did have, it has failed to'carry out, even conceding that the purpose could be legitimately effected by other means. This measure detracts from the liberty of the citizen acting as a tradesman in qis efforts to support himself and his family by the honest practice of a useful trade, and I think no court ought to sanction such legislation unless it tends much more plainly than does this act towards the preservation of the health and comfort of the public.

I think the orders of the court below were wrong and should be reversed and .the prisoner discharged.

Andrews, Ch. J., Finch and Haight, J.J., concur with Gray, J., for affirmance.

O’Brien and Bartlett, JJ., concur with Peckham, J., for reversal.

Order affirmed.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The People ex rel. The Commercial Mutual Insurance Company, App’lt, v. The Tax Commissioners of the City of New York, Res’pt.

      (Court of Appeals,

      Filed January 22, 1895.)

    1. Taxes—Review—Act of 1880.

      Chap. 269 of 1880 gives parties aggrieved the right to review assessments in certain cases, and in the statute the right to appeal is expressly given.
    2. Same—Petition.
    In order to review an assessment, upon the ground of illegality, under the provisions of said act the petition need state the conclusions of fact only, not the evidence necessary to support them.
    3. Same.
    A statement in the petition of , an illegal assessment of the personality is a sufficient claim that the personal property of the relator was exempt from taxation.
    4. Evidence—Judicial notice.
    Judicial notice of the provisions of the act of 1880 will be taken, and it is not necessary to set it forth in the petition.
    Appeal from order of the general term of the supreme court In the first judicial department, which affirmed an order of special term quashing a writ of certiorari to review proceedings of the tax commissioners of.the city of Hew York.

      Esek Cowen and Silas Brownell, for app’lt; David J. Dean, for resp’t.

      Reversing 64 St. Rep.

   Haight, J.

The writ in this case was issued to review the assessment of the relator’s personal property. It is claimed that there was an over-valuation, and that it was exempt.under chapter 679 of the Laws of 1886. Upon the hearing the relator waived its claim of over-valuation, and thereupon the respondents moved to quash the writ for the reason that the petition failed to state, as the ground of illegality of the assessment, that the personal property of the relator was exempt from taxation, and this motion was granted.

There appears to be no doubt as to the rule under which these questions are to be determined. If it is claimed that the assessment is illegal, the statute requires the grounds of the alleged illegality to be stated. Laws of 1880, chap. 269, § 1. The petition is in the nature of a pleading, and only conclusions of fact need be stated and not the evidence necessary to support them. Matter of Corwin, 135 N. Y. 245, 252; 48 St. Rep. 288.

Among other things, it is alleged in the petition that the relator was and is a corporation duly created by and under the laws of the state of Hew York, authorized and empowered to transact the business of fire insurance, a resident of the state of Hew York, and that it had been assessed for the year 1889, on both real and personal property; that prior to the first day of May, 1889, it “ duly protested, claimed, insisted and demanded from said commissioners of taxes and assessments, that all the personal property and bank shares of said corporation was, on the second Monday of January, 1889, by the laws of the state of New York, exempted, and now is exempt from, assessment or taxation, and that the said commissioners of taxes and assessments omit and strike from the book of annual record of the assessed valuation of real and personal estate of the city of New York, the name of the said corporation, and the amount inserted therein as the valuation and assessment of the personal property and bank shares of said corporation for the year 1889, upon the ground that all the personal property and bank shares of the said corporation is exempted from assessment or taxation by the laws of the state of New York, arid also that the said commissioners make no assessment or valuation of the personal property or bank shares of said corporation for the purpose, of taxation for state purposes.” It then appears from the allegations of the petition that notwithstanding the demand thus made upon the commissioners of taxation and assessment, they proceeded to complete the rolls including therein the personal property of the relator, and transmitted the same to the board of aldermen of the city. It is then further alleged: “And your petitioner shows that' the said assessment upon the said valuation of personal property and bank shares for purpose of taxation and said assessment is illegal, invalid and void and erroneous, and that your petitioner will be injured by such illegal and erroneous assessment, and your petitioner specifies the following grounds of illegality and error: That the" said commissioners have overestimated the valuation of scrip representing the capital and surplus for the purpose of taxation, and illegally and erroneously included in their valuation of the personal property of the said corporation on said roll the sums following, to wit: ” etc. Then follows the statement of the various sums representing the value of the different items of personal property belonging to the relator, in some of which it was also alleged to be an overvalution. The petition then concludes with the prayer “ that the assessment upon said petitioner for or in respect of said personal property may be set aside and vacated.”

It will be observed from the language quoted that the petitioner specifies two grounds of illegality and error, and while they are not separately numbered, they are distinctly stated, so that no doubt is left in reference to the intention of the petitioner. To number them they would read as follows: First. “ That the said commissioners have overestimated the valuation of scrip, representing the capital and surplus for the purposes of taxation; ” and, second, “ illegally and erroneously included in their valuation of the personal property of the said corporation on said rolls the following sums, to wit: ” etc.

The grounds of illegality were the including in the assessment roll a valuation of the relator’s personal property. The statute making such act illegal being general, judicial notice will be taken of its provisions, and it was not necessary to set it forth in the petition. -

The wording of the petition could be improved and made more clear, but’we are inclined to the. view that taking into consideration the allegations of the petition to which attention has been called, it sufficiently specifies the grounds upon which it is claimed the assessment is illegal.

The commissioners in their return have alleged that when the act exempting the personal property of corporations of this character was pending before the legislature, they arranged to oppose its passage, and that then it was agreed on behalf of the relator to waive any such right of exemption if the act was permitted to become a law. We do not understand this question to be now before us for determination, for under the arrangement of counsel the relator waived its claim to overvaluation only, and the motion to quash was confined to the sufficiency of the petition.

We think the case is appealable to this court. It is true that the issuance of a common-law writ of certiorari is discretionary; that if the supreme court in the exercise of its discretion withholds or quashes the writ, its action in that regard cannot be reviewed on appeal to this court. People ex rel. Waldman v. Board of Police Commissioners, 82 N. Y. 506; People ex rel. Haneman v. Board of Tax Commissioners, 85 id. 655. But the statute under consideration gives parties aggrieved the right to the writ to review assessments in certain cases, and in the statute the right to appeal is expressly given. Laws of 1880, chap. 269, § 7.

The orders of the general and special terms should be reversed, with costs, and proceedings remitted to the court below for further action.

All concur.

Ordered accordingly.


author: Gray,

text:
    United States Trust Company of New York, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Court of Appeals,

      Filed January 22, 1895.)

    1. Taxes—Action to recover back illegal assessment.
    Where, in the exercise of an actual jurisdiction over person and subject-matter, the taxing officers commit an error, their assessment is protected against collateral attack.
    2. Same.
    In such case, an action to recover back taxes paid on the ground that the assessors adopted an erroneous rule for ascertaining the value of the capital stock, cannot he maintained.
    3. Same—Review.
    The system of procedure for the review and correction of assessments, created by the act of 1880, is exclusive.
    Appeal from judgment of the general term of the supreme court in the first judicial' department, entered upon an order, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.

      Edward W. Sheldon, for app’lt; David J. Dean, for resp’t.

       Affirming 59 St. Rep. 496.

   Gray,

The plaintiff brought this action to recover back the sum of $139,765.71 ; it paid to the city in taxes assessed against it upon it capital stock and surplus, during the years 1887, 1888, 1889 and 1890. The grounds for this claim are that the assessments were void and that the payments thereof were induced by duress and made under mistake.

The plaintiff is a domestic corporation ; doing business as a trust company in New York city. When assessed, during each of the years mentioned, it presented to the tax commissioners a statement of its condition; by which it was made to appear that, except for the year 1890, its personal property, after deducting ten per cent, of its capital and the assessed value of real estate, was invested in securities of the United States and of New York city; which were exempt from taxation. The commissioners upon each of these statements reduced the assessment; but refused to cancel it, as was requested of them. Against their action the plaintiff protested; but did not take any proceeding in the courts, to review it. The tax for the year 1887 was paid under protest;; but for the succeeding three years the payment of the taxes were unaccompanied by any protest. The mode and manner of their payment become unimportant facts, in the view we take of this case.

We think the general term correctly held that this action is not maintainable. The plaintiff seeks to review the determination of the commissioners of taxes, as of the amount for which the plaintiff should be assessed, in a case where their jurisdiction was complete. The proposition, that the taxes were imposed without jurisdiction, is rested upon our decision in People ex rel. Union Trust Company v. Coleman, 126 N. Y. 433; 38 St. Rep. 237; a case which was decided in 1891, and in which we held, in a proceeding on writ of certiorari to review an assessment, of a similar nature, that the assessment should be canceled; because the valuation of the capital stock was fixed by the value in the market of the shares. There was nothing decided there which warranted the inference that the commissioners of taxes were deemed to have been without jurisdiction of the subject-matter. We decided that the capital and surplus of a company must be assessed at their own value and that the market value of the shares of capital stock is only to be considered by the assessors where the value of the capital and surplus, either, is not disclosed and cannot be ascertained, or, being disclosed, the assessors have reasons to disbelieve the statement, based upon facts established by competent proof. That we were condemning the mode taken by the assessors for ascertaining the value of capital stock and surplus, is very evident in the opinion. The “ problem,” as Judge Finch said, was “how to value it,” and it was because the assessors assumed to tax the company “ for the share stock held by individuals,^ when they were only authorized by the law to tax the actual value of its capital and surplus, that the conclusion was reached that the assessment should be canceled. In that case there was jurisdiction in the tax commissioners over the relator and the subject-matter, and we did not intend to hold otherwise. In the present case, the objection to the proceedings for the assessment of the plaintiff, as in the Union Trust Company's Case, is that the assessors adopted an erroneous rule for ascertaining the value of the capital stock, and not that there was a defect of jurisdiction to assess.

There was ample jurisdiction over the company and the subject-matter. The subject-matter of assessment was the capital stock and surplus of the plaintiff, which' the act of 1857, (Chap. 456), subjected to taxation at the actual value thereof, with the allowance of certain deductions. The law does not prescribe how the value is to be ascertained and it is left to the judgment of the assessing officers. People ex rel. Insurance Co. v. Coleman, 107 N. Y. 541; 12 St. Rep. 315. There were ways to be taken by the assessors which might lead variously, according to the methods resorted to, either to agree with the plaintiff’s statement, in which case there would be no personal property liable to taxation ; or to disagree and to affix a valuation which, after allowing for legal deductions, would still leave some amount for taxation. In the former event, that there was nothing for taxation did not affect the jurisdiction of the assessors. In the latter event, if the valuation affixed was arrived at by erroneous methods, that was error in procedure and not a jurisdictional defect. There was thepower to assess; but it had to be exercised in legal ways, or the assessment might be vacated, or reversed. Had the plaintiff instituted a proceeding to review the action of the commissioners, by suing out a writ of certiorari, it would have been in a position to cancel the assessments by reason of the error in their making. This was the remedy which the statute prescribed for the review of assessments, illegal, erroneous, or unequal, and through which a reversai might be had, and it is the appropriate proceeding at law to correct the errors of the taxing officers. They were acting judicially in assessing the plaintiff and their action had all the vforce and effect of a judgment; which, while open to review by some direct proceeding prescribed by the law, is secure against collateral attack. In Swift v. City of Poughkeepsie, 37 N. Y. 511, it was held that the act of assessment was a judicial act by officers having jurisdiction and could not be questioned by a collateral action. This case has been followed as an authority upon this point, though “it is not an authority to establish that money received for a tax illegally assessed without jurisdiction may not be recovered back in any case.” Per Folger, Ch. J., in Newman v. Supervisors, etc., 45 N. Y. at p. 685. In such a case, that is, where there was no jurisdiction in the taxing officers over the person and subject-matter to impose a tax at all, their assessment is void and is a nullity, and an action at law will lie to recover back moneys paid in satisfaction of it; without first having it set aside. Bruecher v. Village of Port Chester, 101 N. Y. 240. But where, in the exercise of an actual jurisdiction over person and subject-matter, the taxing officers commit an error, their action, though reviewable in a proper proceeding, is not void and their assessment is protected against collateral attack, as they themselves also would be. The exercise of their judgment is subject to no review or condition, except as prescribed by law. People ex.rel. Insurance Co. v. Coleman, supra.

For the. plaintiff it is argued that the proceeding by writ of certiorari was in enlargement and not in restriction of the taxpayer’s remedies, and could not be regarded as a remedy exclusive in its nature. In our opinion the act of 1880 (chap. 269), which provided for the allowance of writs of certiorari, furnished an adequate remedy for the dissatisfied taxpayer and confined him to its adoption, in all cases where the illegality of the proceedings of the taxing officers consisted, not in a lack of jurisdiction on their part to act, but in the conimission of errors which vitiated the assessment and laid it open to cancellation or reversal.

It is necessary for the protection of the taxing officers that an attack upon their action should be limited so that which is direct and in the nature of an appeal from it, where that action has been with jurisdiction ; and the irresistible inference seems to be that when the legislature has created a system of procedure for the review and correction of assessments, as it has by the act of 1880, it was intended to be an exclusive one.

The care and thoroughness with which the question was considered at the general term render it unnecessary for us to discuss it here at further length. As the conclusion we reach disposes of the plaintiff’s claim to recover the sums paid to the city, other questions need not be referred to.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    The Mutual Life Insurance Company of New York, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Court of Appeals,

      Filed January 22, 1895.)

    1. Taxes—Local assessment—Recovery back.
    The rule that, where an assessment has been made with jurisdiction, and the property owner lias paid, he cannot recover back the payment until the assessment has been vacated or set aside in some appropriate proceeding, does not apply to defects in the proceeding which render the assessment void for want of jurisdiction.
    2. Same—Void.
    An omission to comply with the provisions of § 91, chap. 335 of 1873, is a jurisdictional defect, and renders the assessment' void only so far as it is made up of illegal matter.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.

      David E. Dean, for app’lt; Charles E. Miller, for resp’t.

      Affirming 61 St. Rep. 250.

   O’Brien, J.

The plaintiff has recovered the amount paid upon what is claimed to be a void assessment on its property, in the twelfth ward in the city of New York. It was a local assessment imposed upon property claimed to be benefited by the construction of a sewer under the authority of the city. It was confirmed on the 29th of May, 1879, and the plaintiff subsequently paid it, amounting to $1,398.88, with interest. The sewer was constructed under a contract in which the expense of rock excavation was fixed by agreement between the commissioner of-public works and the contractor and not by competitive bidding as required by the statute. Laws 1873, chap. 335, § 91. The-other expenses of construction were provided for in the contract, after bids or proposals, in compliance -with the statute, but the item for rock excavation was over seventy-two per cent, of the entire cost of the work, and the amount paid by the plaintiff on account of that item was $996, and the recovery was had for that, sum, with interest. When the plaintiff paid the assessment it- was ignorant of the fact that the contract had been made and carried out without compliance with the statute in respect to the rock excavation.

The only question is whether the omission to comply with the Statute in this respect is a jurisdictional defect. The plaintiff cannot maintain the action to recover the assessment paid, if the defect is simply an irregularity, which renders the assessment voidable or erroneous. The municipal authorities in imposing the assessment acted judicially, and their determination is in the nature of a judgment which cannot be attacked collaterally on account of mere errors or irregularities, but in a direct proceeding to review it.

When such an assessment has been made with jurisdiction, and the property owner has paid, he cannot recover back the payment, until the assessment has been vacated or set aside in some appropriate proceeding. Swift v. City of Poughkeepsie, 37 N. Y. 511; Bank of Commonwealth v. Mayor, 43 id. 184; Marsh v. City of Brooklyn, 59 id. 280 ; Peyser v. Mayor, 70 id. 497 ; Wilkes v. Mayor, 79 id. 621.

But this rule does not apply to defects in the proceeding which render the assessment void for want of jurisdiction. Jex v. Mayor, 103 N. Y. 536; 3 St. Rep. 657 ; Matter of Merriam, 84 N. Y. 596. The whole assessment in this case was not void, but so far as the expense for rock excavation entered into it we think it was. There-can be no doubt, under the authority of the above cases, that to-the extent that this item entered into it, the court would have vacated or set it aside as having been imposed without legal authority. There was no power to impose a burden upon the plaintiff’s property for the expense of rock excavation in the construction of a sewer until the cost of such work had first been ascertained and fixed by the process of competitive bidding pointed out by the statute. The object of the statute was to protect the property owned against fraud or extravagant prices for the work, and all the statutory safeguards designed to secure that end must be substantially complied with in order to obtain jurisdiction to impose the assessment. When the expense has been fixed by agreement between the contractor and the officers of the city, as in this case, in disregard of the plain requirements of the statute, there is no legal basis for the assessment, and no legal authority to make it. There is no distinction in principle between the case of an omission to advertise for bids and proposals for the work, prior to entering into the contract, and the case of an omission to procure the assent of the property owners to the construction of the work where such consent is required by the statute. Every substantial requirement of the statute intended for the benefit and protection of the property owners must be complied with or the assessment will be void. The plaintiff having paid the assessment in ignorance of these defects, it cannot be said that it was a voluntary payment. The defect consisted in the execution of a contract for the work without authority, and it did not appear upon the face of the assessment, but depended upon facts outside of it, so that the plaintiff in making the payment is not chargeable with notice of the invalidity of the assessment. Tripler v. Mayor, 125 N. Y. 617 ; 36 St. Rep. 141; 3. G, 139 ¡N. Y. 1; '54 St. Rep. 419.

The judgment must, therefore, be affirmed.

All concur, except Peckham, J., not sitting.

Judgment affirmed.


author: Peckham, J.

text:
    Andrew F. Sheldon, Resp’t, v. Anna G. Mirick et al., as Administrators, etc., App’lts.

      (Court of Appeals,

      Filed January 29, 1895.)

    1. Habitual drunkard—Sale of real estate—Judgment.
    The finding of the referee in special proceedings to sell the real estate of an habitual drunkard that a claim presented is a valid and subsisting debt against the drunkard for an amount stated, is not a judgment within the meaning of § 376 of the Code, nor does the confirmation of the report, or the entry of the order of confirmation make it a judgment.
    2. Same.
    In an action on the claim, the committee may make any defense upon the merits, and the claimant is compelled to prove it by proper and common law e.vidence.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    The plaintiff in this action sues as the assignee of certain attorneys for the purpose of recovering the sum of $1,050, with interest thereon from the 17th day of August, 1885. The cause of action of which plaintiff is assignee consists of certain claims made by the assignors, the attorneys, for professional services and for moneys paid out, to and for the use of the defendants’ intestate, ¡Nelson E. Mirick and his committee, from 1876 to March 22, 1883. to the amount of $2,906.58, upon which there was a credit of $1,756.61, leaving a balance of $1,149.99; but the claim of the plaintiff was limited to the sum of $1,050, as above stated, that being the amount which he alleged he paid for the claim of the assignors. The action, as claimed by the plaintiff, may be described as either, First, an action upon a judgment; or, second, an action for money paid; or, third, an action for work, labor, etc. It is said that the complaint states all the facts, and is broad enough to cover any and all of these actions.
    The answer set up a general denial as one defense and the six years statute of limitations as another. The case was referred and th'e referee found in favor of the plaintiffs. It appears from his report that the action was commenced on the 18th of November,' 1890. That on the -3d of April, 1884, Mirick, the defendants’ intestate, was duly adjudged to be an habitual drunkard by an order of the county court of Wayne county, and a committee duly appointed of his person and his property, which committee duly qualified and performed the duties of committee until the death of Mirick, which occurred on the 8th day of March, 1886, and letters of administration were granted to the defendants herein. On the 1st of May, 1884, this committee presented a petition to the county court for leave to sell certain real property of their ward, Nelson R. Mirick, for the payment of his debts, the petition alleging that the interests of their ward would be promoted by the sale of the real property described in the petition. Upon the presentation of the petition a referee was appointed to inquire into the merits of the application and to hear the allegations and proofs of all parties interested in the property or who were otherwise interested in the application and to report to the court. Upon that hearing before the referee the claim of the attorneys referred to in the complaint was set out in a bill of particulars and presented and proved before the referee; and the referee in giving a list of the creditors of said Mirick reported that there was the sum of $1,149.99 unpaid upon the claim of the attorneys and that the same was a valid and subsisting debt against the said Mirick. In addition the referee in this action finds separately as a fact that on the 16th day of June; 1884, a claim to the above amount was due from Mirick to the attorneys and that on that last named day a final order was made by the county clerk of Wayne county approving and affirming the report of the referee and that no part of this sum has been paid by said Mirick or the defendants. And the referee also finds the fact of the payment by the plaintiff of the amount above stated and that the attorneys duly assigned their claim to a third person, who duly assigned to the plaintiff. Among other conclusions of law the referee found that on the 16th day of June, 1884, the claim of the attorneys was duly adjudged a valid and subsisting debt against Nelson R Mirick and that the said adjudication was a judgment within § 376 of the Code of Civil Procedure. Judgment was entered and upon appeal affirmed by the general term and the defendants have appealed here.

      E. W. Hannan, for app’lts; T. W. Collins, for resp’t.

      Reversing, 53 St. Rep. 500.

   Peckham, J.

We think the referee in this action clearly erred in his conclusion of law that the finding of the referee in the special proceeding to sell the real estate of the habitual drunkard as to the amount of the claim of the attorneys was a judgment, or that it became a judgment upon the report of the referee being confirmed and the order of confirmation duly entered in the proper clerk’s office. If that finding of the referee, when reported to and confirmed by the court, became a judgment within the meaning of the section of the Code above referred to, then this action was not barred by the statute of limitations ; but in case that finding was not a judgment, and in case there is no judgment proved in this action, then there are probably some services set forth in the complaint and proved upon the -trial wilier would come within the bar of the six years statute after allowing eighteen months immediately succeeding the death of of defendants’ intestate. It is not necessary in the view we take of this case to examine with any great care the question how many of the items, or how large their extent, which come within the bar of the statute. By the proof, as given, we are satisfied that some portion of the claim would come within its bar, but just what proportion and the extent of the plaintiff’s claim which would be thus barred it is not necessary to pick out from the various findings of the referee. These findings might be very different if there were no judgment upon which to base the action of the referee herein. It is plain that this action was sustained by the referee, as it has been by the general term, _upon the ground that the finding of the referee in the special proceeding above referred to was, in its character, a judgment, and that the statute of limitations applicable to judgments was the one to be applied in this case. We think this had no attribute of a judgment within the meaning of the Code (§ 376), or wherever the word “judgment” is used in that statute. A judgment, either interlocutory or final, is the determination of a court in an action, or, in addition to a judgment in an action, it may be within § 376 a decree for a sum of money, or directing the payment of a sum of money, rendered in a surrogate’s court of the state, The determination in this proceeding was a mere incident, the hearing upon the petition being for the purpose of determining whether, upon all the facts as stated, it would be for the best interests of the ward that his real estate should be sold for the purpose applied for in the petition. To that end it was necessary and proper to institute an inquiry or investigation into the circumstances of the ward, the amount of his real estate, its value, where situated, how much incumbered and what debts he owed. But the finding of the referee upon such a reference, which was simply to aid the court in coming to a conclusion in regard to the propriety of granting the order for the sale of the real estate of the ward, was not such an adjudication of a fact as partook of the character or nature of a judgment within the meaning of the Code. It was really an adjudication which bound no one, and after it was found and the real estate sold and the money in the hands of the committee, if from any change of circumstances or from facts coming to their knowledge there- was, as they thought, a defense to the claim or to any portion of it, this finding of the referee would not stand in the way of the committee’s defense upon the merits in an action brought to enforce the collection of the alleged, debt. The committee could in such action show whatever defense there was to the claim and the owner of the claim would be compelled to prove the same by proper and common-law evidence. This adjudication could not be docketed as a judgment, no execution could be issued upon it, and no mandate of the court could issue in regard to it for the collection of the amount in favor of the claimant as upon a final adjudication and judgment upon the rights of the parties.

There being no judgment by virtue of the finding of the referee in the special proceeding, the error of the courts below in .finding its existence was an error of law. The judgment below was really based upon it, and it is exceedingly doubtful as to what the findings of fact might or ought to be upon the merits of the case as to the other grounds when the plaintiff is deprived of the benefit of the judgment spoken of.

There must be a reversal of the judgment appealed from and a new trial, with costs to abide the event All concur, except Haight, J., not sitting.

Judgment reversed.


author: Mayham, P. J.

text:
    August Grill, App’lt, v. Charles E. Wiswall, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Injunction—Pendente lite.
    The rule that an injunction will not ordinarily be granted where the whole equities of the complaint are denied, does not absolutely control. '
    2. Same.
    But, in order to obtain an injunction pendente lite before trial, it must appear that the plaintiff, upon the facts before the court, will, if the injunction is not granted, suffer irreparable injury, which cannot ordinarily be compensated in an action at law.
    3. Same.
    The sound discretion of the court of original jurisdiction, in granting such injunction, should only be reviewed and reversed by the general term for an error in the exercise of that discretion.
    Appeal from an order, denying a motion to continue a preliminary- injunction.

      P. H. McCarren (Isaac H. Maynard, of counsel), for app’lt; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff, by his verified complaint, alleges that he is the owner of lands under water in the Hudson river, which he therein describes by metes and bounds, and charges that, before the commencement of the action, defendant wrongfully and forcibly entered upon such land under water, and then and there commenced dredging and digging upon said lands, and deposited earth dredged and dug upon a portion of the same, and, on information and belief, charges that the defendant is about to continue dredging and digging, and depositing the earth dredged and dug upon the said lands of the plaintiff, to his damage. The complaint asks, as relief, a perpetual injunction restraining the defendant from dredging, digging, and depositing earth upon his said land,.- •and for damages. The application for a temporary injunction is also supported by the affidavit of the plaintiff, substantially reiterating the charges in the complaint, and also by letters patent of the state of New York, issued upon the resolution of the commissioners of the land office, granting to the plaintiff and others the lands under water, as described in the complaint. The answer of the defendant admits the plaintiff’s title to the locus in quo, as described in the plaintiff’s complaint, but denies that the defendant entered upon the lands so described, and dredged and dug up the same, or he was about to do so, as charged in the complaint, and, in support of such denials, introduced affidavits and surveys of maps, tending to show that the dredging and depositing of earth complained of was not upon the plaintiff’s land under water, described in the plaintiff’s complaint and patent, but was upon other lands contiguous to the lands of the plaintiff. Upon the complaint, answer, affidavits, and other papers presented to the special term, the court refused to continue the temporary injunction, and from that order the plaintiff appeals.

The real controversy, therefore, between the parties is as to whether the land under water, which the defendant admits he is digging and depositing, is upon the lands described in the plaintiff’s complaint, which the defendant admits belongs to the plaintiff. To determine that, the court must accurately determine the actual location of the locus in quo. That the plaintiff has title to land under water at about the point in controversy is a conceded fact; and whether the defendant is a trespasser upon that land depends upon the location of that grant. The exact location of the plaintiff’s premises under water does not seem to be definitely fixed by the evidence on this motion. While the complaint alleges that the land upon which the defendant is depositing his dredging material is on the plaintiff’s land under water, entry upon which is denied by the defendant’s answer, the evidence of the defendant’s engineer and surveyor, Melins, and the map made by him, leaves the location in doubt, making three distinct locations, each to depend upon the starting point or landmarks mentioned in the grant; but, by adopting any one, a different location is established from that made by adopting either of the others. It is therefore impossible definitely to determine whether the defendant’s answer and proof does in fact deny the whole equities of the plaintiff’s bill. That being so, the general rule that an injunction will not ordinarily be granted where the whole equities of the plaintiff’s, bill are denied, does not absolutely control. It is only where the whole equities of the bill are positively denied under oath that an injunction will be dissolved on that ground. Schermerhorn v. Merrill, 1 Barb. 514, and cases there cited.

The location being in doubt, the question whether or not the trespass was upon the plaintiff’s land is also in doubt, and the allegation in the complaint cannot be deemed to be positively denied under oath. It is only when, upon the papers used at special term, it is apparent that the whole equity of the plaintiff is denied,’. that it is usual to dissolve an injunction. Knox v. McDonald 25 Hun, 270. And even this rule is not of universal application, but has some well-established exceptions, calculated to guard the right of parties from injury pending the litigation. But, in order to obtain the exercise of extraordinary power in his favor by the court before a trial, it must appear that the plaintiff, upon the facts before the court, will, if the injunction is not granted, suffer irreparable injury, which cannot ordinarily be compensated in an action at law. The complaint in this action does not charge that the alleged trespass will produce such irreparable injury to the plaintiff’s premises; and as the learned judge at special term puts its decision upon the authority of Knox v. McDonald, 25 Hun, 270, 271; Schermerhorn v. Merrill, 1 Barb. 511, and Central Cross-Town R. Co. v. Bleecker St. & F. F. R. Co., 49 How. Pr. 233, he must have determined either that the plaintiff had an adequate remedy at law for the alleged injury, or that the whole equities of the plaintiff’s bill were denied by the answering papers of the defendants, or that too much doubt existed as to the plaintiff’s right to justify the granting of a temporary injunction in this case. As the granting of an injunction pendente lite rests in the sound discretion' of the court of original jurisdiction, which should only be reviewed and reversed by the general term for an error in the exercise of that discretion (Hart v. Ogdensburgh, etc., Railroad Co., 48 St. Rep. 801, we see no good reason for interfering with the decision of the special term in the exercise of that discretion in this case Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 397-401; 31 St. Rep. 524; Hatch v. Western Union Telegraph Co., 93 N. Y. 640. As the complaint in this action does not raise the question of the right of the defendant to obstruct the free access of the plaintiff to his premises in the navigable waters of the Hudson river, we do not see how that question can be considered here.

Order of special term affirmed, with $10 costs and printing disbursements.

Putman, J., concurs. Herrick, J., not acting.


text:
    Frederick S. Harlow, App’lt, v. Hiram Le Brun, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Pleadings—Answer—Admissions.
    An answer, which impliedly admits the contract sued on, but avers that, it was procured by fraud, does not preclude the defendant, by such admission, from proving the fraud.
    2. Fraud—Opinion.
    False representations as to the cost of a chattel are not mere expressions of an opinion as to its value.
    3. Partnership—Fraud.
    A person who has been induce through fraud to enter into a partnership, will be relieved from such contract, though he proves no pecuniary damage.
    Appeal from a judgment in favor of defendant.

      Jesse Stiles, for app’lt; Edgar T. Brackett, for resp’t.
   Mayham, P. J.

This plaintiff brings this action for a dissolution of what he alleges to be a valid, existing copartnership between him. and the defendant, and for an accounting as partners. The complaint sets out written articles of copartnership. The answer does not deny the making of the written articles of copartnership, but impliedly admits the same, and sets up in a defense that he was induced to enter into such copartnership by the fraudulent representations of the plaintiff that a stock of merchandise-which he put into such copartnership cost the sum of $1,890.05, an undivided half of which would belong to the defendant under such articles of copartnership, and against which defendant put in the sum of $850 in cash and his notes to the plaintiff of $1,150; and alleges that the merchandise in fact cost the plaintiff but the sum of $1,134, which fact the plaintiff well knew at the time of making such representations, and of which defendant was wholly ignorant. The answer also alleges that under such supposed partnership he worked from the 18th day of October, 1893, to the 24th day of .March, 1894, for which his services were worth $12 per week, and for which he had received but $6 ; and that the fraud was not known to or discovered by the defendant until the commencement of this action. The defendant, in his answer, also demands that it be adj udged that there never existed any partnership between the plaintiff and defendant; that the articles be-vacated and set aside; that the notes or duebills be cancelled and set aside; and for the recovery of the money paid by defendant under such fraudulent agreement, and payment of balance due for the services of the defendant.

The trial judge finds upon, we think, sufficient evidence the-following facts: (1) “That on or about the 18th day of October,. 1893, the defendant entered into a written agreement of copartnership with the plaintiff to carry on a mercantile business at Sara-toga Springs, ÍT. Y., and purchased from the plaintiff an undivided one-half of a' stock of goods then owned by plaintiff for the sum of $2,000, $800 of which he then or thereafter paid in cash, and for the balance of which the plaintiff holds his note or, duebillr dated October, 1893.” (2) “ That to induce the defendant to enter into such copartnership agreement with the plaintiff, and to-purchase from the plaintiff the said undivided one-half of said stock of goods then owned by the plaintiff, the plaintiff represented to the defendant that he, the plaintiff, had paid for the Mabbett stock, so called, which formed a portion of the stock then owned by the plaintiff (one-half of which he sold to the defendant), the-sum of $1,890.05.” (3) “That said representation was false, and was known by the plaintiff to be so when he made the same, and he had not in fact paid said sum of $1,890.05 for said Mabbett stock, nor any other or greater sum that $1,136.80; and said statement was made by the plaintiff to the defendant to induce him, the defendant, to enter into said copartnership agreement to buy one undivided one-half of said stock.” (4) “ That in ascertaining the cost of the stock then on hand, owned by the plaintiff, and an undivided one-half of which he proposed to and did subsequently sell to the defendant, the parties took a list of bills of goods purchased by the plaintiff at the cost price thereof from the time he-•commenced business, and from the aggregate of such cost deducted the cost price o£ the good sold by him during the time he had so been in business; the difference being the cost of the goods then in stock, of which the defendant thus purchased an undivided one-half.’’ (5) “That the defendant relied on said representation of the plaintiff, and believed the same, and without the same he would not have entered into said copartnership agreement, or purchased the undivided one-half of- said stock of goods of plaintiff as he did do. (6) “ That the defendant did not discover said fraud thus practiced upon him by the plaintiff until after the commencement of this action.” (7) “ That before discovering the fraud thus practiced on him by the plaintiff, the defendant rendered work, labor, and services in said store thus operated by said copartnership twenty-two weeks, which services were worth $12 per week; and that the defendant admits receiving on account of said services the sum of $6 per week ($132 in all), apparently leaving a balance thereon of $132.” (8) “ It appeared upon the trial that a receiver of the property of the ñrm has been appointed in this action, and that .he has sold the tangible property thereof. ¡No evidence was given tending to shtiw the amount of the receipts from the business retained by the defendant; and thereupon it is found that said amount retained by him does not exceed the value of his services as last above found.” (9) “ The allegations of.fact stated in the complaint' are true, except as qualified by the above findings."

And as conclusions of law the court finds :

(1) “ That (owing to said false representation thus made by plaintiff to the defendant, and the fraud thus practiced by the plaintiff upon him, the defendant) said copartnership agreement was and is voidable, and the defendant is entitled to have the same set aside and annulled." (2) “That owing to such fraud and false representation of the plaintiff, the agreement by which the defendant bought and the plaintiff sold such undivided one-half of such stock of goods was and is voidable, and the defendant is entitled to have the same set aside and annulled, and to be re-; stored to whatever he parted thereunder." (3) “That the defendant is entitled to judgment against the plaintiff herein: (a) Declaring said partnership agreement and said agreement of purchase of such undivided one-half of said stock void, (b) Directing the receiver herein, after first paying any debts outstanding, and unpaid that were contracted during the existence of said copartnership, to pay, out of any funds in his hands, to the defendant, the sum of $800 (the sum thus paid him to the plaintiff), with interest on $750 thereof from October 18, 1893, and on $100 thereof from December 12, 1893 (amounting to the sum of $879.25). (c) Directing the plaintiff to deliver to the defendant the duebill of the defendant dated October 18, 1893p and now held by the plaintiff. (d) For the costs of this action.”

But it is insisted by the learned counsel for the plaintiff that, as the allegations of copartnership, as stated in the complaint, are not denied by the answer, they must, under the provisions of § 522 of the Code, be taken as true; and in support of that contention he cites Fleischmann v. Stern, 90 N. Y. 110. But it will be seen by an examination of that authority, and all the other cases cited in support of that contention, that they do not relate to a case where the contract or claim upon which the plaintiff seeks to recover had its inception in fraud practiced upon the defendant, which formed the inducement for the creation of this liability-charged in the complaint. That fraud vitiates all contracts as between the parties affected by it is a doctrine so elementary as not to require the citation of authorities. If the contract creating the copartnership had its inception in fraud, it was, as between the parties to it, void ab initia, and it revision will relate back to the time of making. The answer, therefore, while it did not deny the execution of the articles of copartnership, sets up the affirmative defense that they were void for fraud. The making of the articles of copartnership could not be truthfully denied in the answer, and a failure to deny their execution did not put the defendant, under the authority of Beard v. Tilghman, 66 Hun, 12 ; 49 St. Rep. 508, in a position that he could not set up in his answer matter which went to the validity of the contract. It was therefore clearly competent, under the defendant’s answer, to attack the articles of copartnership for fraud. In 2 Bullis, Partn., § 595, the effect of fraud upon the validity of a partnership is stated as follows:

“ A person induced to enter into a partnership by fraudulent misrepresentations, although he may have a dissolution on this ground, may also obtain a decree rescinding or canceling the partnership .agreement ab initia, even though the misrepresentations are not .such as would entitle him to an action for deceit. He can also have an action for deceit against .'the guilty party. In such cases the chancellor will administer complete relief by ordering repayment of all items advanced or expended by the complainant, and compensation and indemnity. This is not giving damages, but is a proper consequence of rescinding the contract; and the complainant has a lien on the assets for what he has paid in.”

It is also urged by the learned counsel for the plaintiff that, as there was no proof that the stocks of goods were in fact worth less than $1,890.05, therefore the defendant had not by the proof suffered any loss, and that he was not, therefore, entitled to any relief. The representation in this case was not a mere representation by the plaintiff of the value of the property, which at most could but be an expression of his opinion, and for which no action would ordinarily lie. Chrysler v. Canady, 90 N. Y. 272; Schnmaker v. Mather, 133 N. Y. 590 ; 44 St. Rep. 754. In such cases the party purchasing, or to whom the representation is made, has access to the open market to determine the value, and may exercise his own judgment as to the value. We think the rules are different where fraudulent representation is made by the vendor as to the cost of a chattel. In Fairchild v. McMahon, 139 N. Y. 290; 54 St. Rep. 495, O’Brien, J., sharply recognizes the existence of such distinction, and in discussing this question of a distinction between an opinion by the vendor and false representation as to its cost says:

“ But the question here is not one arising out of a representation as to value. The representation was with respect to a fact which might, in the ordinary course of business, influence the action and control the judgment of the purchaser, namely, the price paid for the property about to be sold by the vendor; * * * and so-we think a false statement with respect to the price paid under-such circumstances, which is intended to influence the purchaser, and does influence him, constitutes a sufficient basis for the finding of fraud; citing in support of that contention: Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63 ; Smith Countryman, 30 N. Y. 655 ; Hammond v. Pennock, 61 N. Y. 151; Goldenberg v. Hoffman, 69 N. Y. 326,

Nor can we agree with the contention of the learned counsel for the plaintiff that, as no pecuniary damage wag proved by the defendant, he is not entitled to any relief in this action. The relation of partners is one implying the highest degree of mutual confidence. By such relation each becomes the custodian, not only of the property, but to a great degree of the character and business standing of the other. For the court, therefore, in an equitable action, to uphold a contract consummated by fraud, and thus, as between the deceiver and deceived, to bind the property and character of the latter, would seem to be not only inequitable, but oppressive. Nor should the relation be continued until the .injured and deceived party has been subjected to actual loss, which he may prove, in dollars and cents. When he appeals to the court for relief, and establishes the fraud, he should be relieved from the hazard of a business combination into which he has been inveigled by fraud and misrepresentation. We think, therefore, that the trial court was right in declaring this contract .void and inoperative from its inception, and by the judgment of the court restore as far as possible the status quo of these parties. We have carefully examined all the exceptions taken by the learned counsel for the plaintiff to the- rulings, findings, refusals to find, and determinations of the trial judge, and find no error for which this judgment should be reversed.

Judgment affirmed, with costs.

All concur.


author: Per Curiam

text:
    George Hempenstall, Resp’t, v. New York Central and Hudson River Railroad Company, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Damages—Excessive.
    The court may interfere to reduce a verdict, only when it is so excessive and disproportionate to the injury that it evinces passion, prejudice or partiality.
    2. Negligence—Question for jury.
    The questions of negligence and contributory negligence were held, under the facts in this case, to have been properly submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      C. D. Prescott, for app’lt; L. F. Fish (R. B. Fish, of counsel) for resp’t.
   Per Curiam

The plaintiff had purchased a ticket for passage on the defendant’s railroad from Fonda to Albany, was waiting at the former place for an east-bound train, which was past due at that point on schedule time. While there, a fast train, eastward bound, passed the station without stopping, which the plaintiff supposed was his train, and passed from the depot, over some of the tracks of defendant’s road, for the purpose of boarding it As that train passed without stopping, the plaintiff as would seem, to avoid a west-bound train, which at that time was approaching, stepped back, and was hit by a freight car,—which was in process of being switched, and was moving slowly, either from gravity or its own momentum, detached from any engine,—and was injured.

It is claimed by the plaintiff that the defendant was, as to the passengers traveling on its train, and to whom it owed a high degree of deligence, negligent in kicking a freight car, detached from the engine, in front of its passenger depot, while passengers were in waiting there, for a past-due train. It is also claimed by the defendant that the plaintiff did not show his freedom from contributory negligence, in exposing himself in the daytime to be hit by a freight car, and that if he had looked and listened he could have seen it, and escaped injury. Under these circumstances of this case, we do not think this court can say, as matter of law, that the defendant was free from negligence. ÍSTor can we say, as matter of law, that the plaintiff was guilty of contributory negligence. Under the circumstances of this case, we think that it was a question for the jury whether, under the facts disclosed by the proof, the defendant was guilty of negligence which produced the injury; and it was also a question for them to determine whether the plaintiff had established his freedom from contributory negligence, and that the case was therefore properly submitted to the jury, under a fair charge by the judge.

It is insisted by the defendant that the damages given by the jury are excessive. We think the damages are large, and larger, perhaps, than we would have awarded, had we been called upon to assess them. But that is not the test to be applied by the appellate court in determining whether or not damages are excessive. The jury is the tribunal, under the law, to assess the damages, in a case of this character; and it is only when their verdict is so excessive and disproportionate to the injury that it evinces passion, prejudice, or partiality that the court may interfere to reduce it. We cannot say, as matter of law, that the size of this verdict evinces any such improper passion or emotion on the part of the jury in this case. The judgment must be affirmed, with costs.


text:
    Robert S. Coleman, Resp’t, v. Charles H. Pickett, App’lt.

      ,0Supreme Gowrt, General Term,, Third Department,

      Filed December 4, 1894.)

    1. Adverse possession—Consent.
    The possession of one, who enters upon land with the consent of the owner, cannot ripen into a valid title by lapse of time.
    3. Trial—Waiver.
    Where the defendant moves for a nonsuit, and plaintiff requests the court to direct a verdict in his favor, both waive the right to go the jury.
    Appeal from a judgment in favor of plaintiff.

      D. J. Sullivan, for app’lt; L. H. Northrup (A. D. Arnold, of counsel), for resp’t.
   Mayham, P. J.

The action was to reform a deed, and for the

recovery of the possession of lands claimed to have been omitted, from the deed by mistake. The complaint alleged all the essential facts to entitle the plaintiff to the' relief demanded. The answer admitted many of the allegations of the complaint, and set up, as an affirmative defense, adverse possession of the land in dispute. From a careful examination of the uncontradicted evidence, we think the allegations of the complaint are established by the proof. As to the affirmative defense of adverse possession, the undisputed evidence shows that the defendant and his grantor entered into possession with the permission and consent of the owner, under an agreement that he would not erect any building on the land. His holding was therefore clearly in subordination to the legal title of the plaintiff, and could not, therefore, ripen into a valid adverse possession by lapse of time.

We have examined the objections and exceptions taken by the defendant to the rulings of the trial court on the receipt and exclusion of evidence offered on the trial, and find no error for which this judgment should be reversed. We have also examined the exceptions taken to findings of fact and law by the learned court on the final disposition of the action, and think them not well taken. The facts were supported by the evidence, and the conclusion of law followed as the legal sequence of the facts found.

The parties. on both sides, having taken the position that the case must be disposed of by the court as a question of law,—the defendant by motion for nonsuit, and the plaintiff by asking the court to direct a verdict for him,—waived' their right to submit the case to the jury, except upon specific disputed questions of fact; and the refusal of the court to submit tne case to the jury, generally, after such motions and requests on the part of the defendant, was not error of which the defendant can complain, on appeal. In Mayer v. Dean, 115 N. Y. 556; 26 St. Rep. 375, it was held that when, after the close of the evidence, each party asks that a verdict be directed in his favor, and, after the decision thereon, the unsuccessful party asks that the case be sent to the jury, without stating any question of fact he desires submitted, a denial of the motion is not error.

We see no error in this case for which the judgment can be reversed.

Judgment affirmed, with costs.

Putnam, J., concurs in result; Herrick, J., dissents.


text:
    James W. Bender, Resp’t, v. John L. Blessing, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Limitation—Payment.
    Proof of payments within the statutory period will not, where the note is on its face barred by the statute of limitations, stop its running unless made by the debtor or some one authorized by him.
    2. Same—Payment by co-maker.
    The payment of interest by one maker does not stop the statute from running as to his co-maker, unless made by the latter’s express direction or authority.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      George E. Stevens, for app’lt; Stanwix & Murray (Galen R. Hitt, of counsel), for resp’t.
   Mayham, P. J.

This action was commenced by the service of a summons on the defendant April 17, 1892. The action was brought upon a promissory note for §240, dated May 3, 1879, payable to the order of John L. Blessing, and signed by Martin J. Blessing, Thomas Hilme and John L. Blessing, and John L. Blessing and Martin J. Blessing were the only defendants named in the summons. John L. Blessing alone answered, and by his answer denied the execution of the note, and for a separate - defense set up the statute of limitation. The only real question on this appeal arises upon the defense of the statute of limitation. On the trial the plaintiff introduced evidence tending to show that :the note was given for money advanced at the time the note bears date to John L. Blessing, the appellant, and that he negotiated the loan of the plaintiff. The plaintiff proved the execution of the note, and that the interest had been paid on it up to May, 1891, but did not prove by whom the payments of interest were made. The defendant introduced in evidence eight vouchers for interest purporting to be paid by Martin J. Blessing, and signed by the plaintiff, each acknowledging the payment of $16.80, and the last bearing date February 25,1891. There is no proof in the case that the defendant John L. Blessing ever paid or authorized the payment of any interest on this note. At the conclusion of the evidence the defendant John L. Blessing moved that the complaint be dismissed, as to him, in various forms, on the ground that the note, as to him, was barred by the statute of limitation. The learned trial judge denied the motion, and submitted to the jury two propositions ° First, whether the defendant John L. Blessing executed the note; second, whether the payments of interest were made on his behalf,—to which ruling • the counsel for the appellant excepted.

We think the motion should have been granted. The note, upon its face, was barred by the statute of limitation, and there was no evidence of payments by the appellant to take it out of the operation of the statute. The burden was upon the plaintiff to show affirmatively that John L. Blessing had personally made, or directed to be made, some payment, or done some other act to arrest the running of the statute. Miller v. Magee, 17 St. Rep. 547; Hulbert v. Nichol, 20 Hun, 454. Payment by Martin J. Blessing—one of the other makers—of the interest, while it prevents the running of the statute as to him, does not, without express direction or authority from the other makers, have that effect as to them, and will not, as to them, revive a claim barred by the statute. Dunham v. Dodge, 10 Barb. 556; Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 id. 558; McMullen v. Rafferty, 89 id. 456. The relation of joint and several makers of notes raised no implication of the relation of an agency by which one can bind another in the renewal of an obligation, so as to prevent the running of the statute of limitation. Van Keuren v. Parmerlee, 2 N. Y. 523; Winchell v. Hicks, supra; Smith v. Ryan, 66 N. Y. 352. In the case last cited, Allen, J., says: “ The principle -is recognized in all cases that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent,—that is, an agent having authority to make a new promise, or to perform for a party the very act which is to be the evidence of a new promise; ” and the learned judge adds: “There is no agency as between several joint debtors,.or between principal and surety, or between an insolvent debtor and his assignee, which will make a payment by one evidence of an acknowledgment of the debt of the other, so as to revive the demand ; ” citing in support of that doctrine some of the cases above referred to. We think, therefore, upon the evidence in this case, as it stood at the time the parties rested, the judge should have dismissed the complaint as to this appellant.

Judgment reversed and a new trial ordered, costs to abide the event. All concur.


text:
    Libbie E. Button, App’lt, v. Charles E. Hibbard, Resp’t.

      {Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Breach of promise—Proof.
    A promise of marriage may be inferred from the conduct of the parties.
    Appeal from a judgment dismissing the complaint.

      Huston & Herrick, for app’lt; Barnum Bros., for resp’t.
   Mayham, P. J.

The first count of the plaintiff’s complaint alleged in substance that she was an unmarried female, and that the plaintiff and defendant, about the 24th day of June, 1891, made and entered into a mutual promise of marriage. The second count' alleged that the plaintiff, relying upon such contract, had remained single and unmarried, and was at all times ready and willing to perform the contract on her part. The third count alleged the breach of the contract on the part of the defendant by his marrying another woman on or about the 30th day of November, 1892. The fourth count alleged that, relying upon the defendant’s repeated promises of marriage, she yielded to, and was seduced by, the defendant, whereby she became pregnant, and sick with child, to which she gave birth on the 18th day of June, 1892, and for all of which she claimed damages. The answer, in substance, denies all the allegations of the complaint, except that of his marriage. The evidence upon the trial tends to show that for a considerable period of time the defendant paid marked attentions to the plaintiff, escorted her to church and prayer meetings, and on various occasions kissed and caressed her, and frequently told her that he hoped she would think enough of him to marry him, proposed to purchase for her her wedding dress, and received from her samples of dress/ goods, such as she thought suitable for a wedding garment, and carried it with him to town, with the avowed purpose of purchasing goods for her wedding dress, and, by his conduct towards her and conversations with her, evidenced ■emotions of affection and regard from which a jury might, within the rules of law governing this class of contracts, have found a mutual agreement of marriage. These acts of attention .and evidences of affection and regard occurred at the defendants, while while she was at work for him, and also at the house of the plaintiff’s, and also, quite often, when the defendant took her riding. It also appeared that the defendant had given plaintiff presents, and told her that when they were married they would go to Niagara.

On the cross-examination of the plaintiff, she testified that at the time of her seduction the plaintiff proposed illicit intercourse with her, and she objected. He told her it was all right. She replied that he might change his mind; he said he would not,— that he would marry her, if she would be seduced by him. Upon this testimony the learned trial judge, at the conclusion of the plaintiff’s evidence, dismissed the complaint, on the ground that the immoral consideration shown by this evidence would not support the promise. It is doubtless true that a promise of marriage, based wholly upon the consideration of illicit and adulterous intercourse, is void on account of the immorality of the consideration. Steinfeld v. Levy, 16 Abb. Pr. (N. S.) 26; Lewis v. Goetschius, 20 N. Y. Wkly. Dig. 140. But we think the learned judge fell into error in assuming that that transaction was the only evidence in the case from which a promise of marriage could have been legally found by the jury. The law is well settled that a contract of marriage may be found by a jury from the familiar and affectionate intercourse which may exist between marriageable persons of opposite sex. Constant and devoted attention to each other; fondness for each other’s society ; endearing epithets; caresses ; rides and walks with each other; presents; familiar talk upon the subject of intermarriage ; plans for enjoyment or of future life after marriage ; exchanges of presents; and an innumerable variety of acts and conduct towards each other,—evince an attachment and regard from which a jury are at liberty to presume a contract of marriage. In Homan v. Earle, 53 N. Y. 267, Church, C. J., in delivering the opinion of the court, while discussing the correctness of the charge of a trial judge to a jury in this class of cases, , says: “As matter of law, the learned judge was clearly right in holding that no form of language is necesssary to constitute contract of marriage. If the conduct and declarations of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state."

And at page 274 of the cáse the learned judge adds: “ What the parties intended by these acts and declarations—what is the correct translation of them—is for the jury, and not the court. It is a question of fact, and not of law.

This language of the learned judge is but a reiteration of a rule long settled in this class of cases. In the case at bar it was for the jury to interpret and construe the facts detailed by the evidence, and from that determine, outside of the immoral act upon which the learned judge dismissed the complaint, that the minds of the parties had met upon a mutual contract of marriage, as evidenced by their conduct and declarations. And it was, we think, error for the judge to take that question from them. The judgment must be reversed, and a new trial ordered costs to abide the event.

All concur.