author: Clement, C. J.

text:
    Edward H. Litchfield et al., Pl’ffs, v. City of Brooklyn, Def’t. (Two cases).

      (Brooklyn City Court, Special Term.)
    1. Former Adjudication—Pendency oe another action.
    The pendency of an action in a Federal court is no bar to a subsequent action in a state court for the same cause between the same parties.
    3. Injunction—Threatened tax sale.
    An injunction against a threatened tax sale, on the ground that the tax is illegal, may be granted.
    3. Taxes—Penalties—Arrearages.
    The word ‘‘arrearages,” in chap. 114 of 1883, includes the taxes, water rates, etc., all penalties for default in paying the same imposed by previous statutes.
    4. Same—Water rates.
    Oliap. 114 of 1883 authorizes the board of assessors to consider water rates or assessments which were held void on constitutional grounds.
    A Same—Several parcels.
    The above statute requires each certificate to contain a single lot or parcel, and a certificate which includes several lots is invalid.
    A Same—Assessment—Procedure. „
    The statutory requirement that assessment rolls should contain two columns, one headed “Reductions and Cancellations,” and another headed “Arrears,” may be complied with by filling in the headings after the taxes .are confirmed.
    Actions against the city of Brooklyn.

      Wm. C. De Witt, for pl’ff; Albert G. McDonald, Corp. Counsel ‘(Henry Younge, Asst. Corp. Counsel, of counsel), for def’t.
   Clement, C. J.

1. It is claimed that these actions cannot be maintained, for the reason that actions seeking the same relief were commenced on April 10, 1894, and are still pending between the same parties in the United States circuit court for the Eastern district of New York, which district includes the city of Brooklyn, while the present cases were not begun until the following September. I am inclined to hold, on the authorities, that the plea in abatement is not well taken. Bank v. Bonney, 101 N. Y. 173; Mitchell v Bunch. 2 Paige, 606, 620; Sharon v. Hill, 22 Fed. 28; Manufacturing Co. v. Scutt, 22 id. 710; Gilmour v. Ewing, 50 id. 656; Gordon v Gilfoil 99 U. S. 168.

2. It is also contended that actions in equity to enjoin the collection of taxes cannot be successfully brought, and that the remedy of plaintiffs is to pay the taxes, and then, if illegal, to sue for their recovery. I am satisfied that the conclusion I arrived at on the motion for the preliminary injunction is the correct one, and adhere to the opinion I filed on the decision of that motion.

3. The learned counsel for the plaintiffs contend that chapter 114 of the Laws of 1883 is unconstitutional and void on several grounds—First, because it does not provide for an adequate notice, to the parties affected thereby; second, because it does not afford a fair hearing to the owners of property ; third, because it provides for taking and selling private property in fee simple; fourth, because it deputes to the assessors power, in their discretion, to determine how much of a large public debt shall be imposed upon private property and how much shall be assumed by the city of Brooklyn ; fifth, because it provides that the acts of the assesssors shall not be re viewable by the courts. All. these questions have been considered and decided by the court of appeals adversely to the contention of plaintiffs, and I am foreclosed from the consideration of either question. Terrel v. Wheeler, 123 N. Y. 76; 33 St. Rep. 404; Lamb v. Connolly, 122 N. Y. 531; 34 St. Rep. 140.

4. The counsel for the plaintiffs also maintain—First, that, under chapter 114 of the Laws of 1883, no power was given to the board of assessors to include any interest at all upon the taxes, assessments, or water rates in arrears, and to be settled under that act; second, conceding that they did have such power, yet that they had no right to add interest after July 1, 1882; third, that the assessors were prohibited, in considering the question of interest on arrearages, from proceeding beyond the date of the passage of the act, March 16, 1883. Prior to 1883, several statutes had been passed adding penalties to taxes, assessments, and water-rates, in case owners of real property affected thereby failed to pay the same within thirty days after confirmation. I am asked now to hold that the word “arrearages,” in the act in question, only included the principal of taxes; assessments, and water rates, and not the statutory defaults for nonpayment. The annual taxes had been confirmed bv chapter 363, Laws 1882, with interest, and therefore such interest formed part of the tax. Judge Cooley states (Cooley, Tax’ll, 2d ed. p. 457) :

“Penalties are most often provided under state laws for neglect to pay the taxes in due season, and they consist, then, in an addition of some definite per cent, to the tax.’’

I am of opinion that the word “arrearages” included taxes, assessments, and water rates, and all defaults. The legislature had the power to impose the defaults, and, for the purposes of the act, they were added to and formed part of the tax, assessment, or water rate, or rather formed a part of the arrearages of taxes, assessments, or water rates. If, as it seems, the assessors had the power to consider the statutory defaults as part of the arrearages, I see nothing in the act which limited the time of the running of the defaults to July 1,1882. The act recites that the arrears of taxes, assessments, and water rates exceed $10,000,000, and the legislature did not assume that the board of assessors could pass upon all cases forthwith after its passage. A long period of time. must necessarily elapse before they could finish their work. The assessors did not act on the property of Mr. Litchfield until nearly two years after the act took effect, and the statutory defaults were ■all the time running. I find no‘provision which prohibited the assessors from considering interest or defaults after March 16, 1883, the date of the passage of the arrears act, and conclude that they had a right so to do.

5. In considering the arrears on several parcels involved in these actions, the assessors took into account water rates. The parcels of land were vacant during the years when the rates, were attempted to be levied. I:i Remsen v. Wheeler, 105 N. Y. 573; 8 St. Rep. 202, the court of appeals decided that all water rates assessed against vacant lots in Brooklyn were void, for the reason that the act (Laws 1859, chap. 396), under which they authorized, did not provide for a notice of hearing to property owners. It seems, therefore, clear that the water rates on the land in suit were, on July 1, 1882, void, and were not the subject of confirmation, except by a new levy and with a notice of hearing, as was done in the case of the Atlantic Avenue assessment. Spencer v. Merchant, 100 N. Y. 585; Id., 125 U. S. 345. The question, therefore, to be decided is whether or not the board of assessors were given jurisdiction by the act of 1883 to consider water rates or assessments which were void on constitutional grounds. I am inclined to hold that water rates were brought within their jurisdiction by the act in question. The case of Spencer v. Merchant, supra, seems to me to be an authority in point. By chapter 689 of the Laws of 1881, the board of supervisors were authorized to equitably apportion a certain fixed amount on the parcels of land whose owners had not paid their assessments for the regulating and grading •of Atlantic avenue. Such fixed amount was the sum total of the unpaid assessments which had been canceled as void on constitutional grounds. The supervisors, under the act, were to apportion the amount on the several parcels of land, and were to give ten days’ notice of hearing as to the apportionment. The new assessments were levied, and were the same as the old, with interest •added, and were upheld as valid by the court of appeals and the supreme court of the United States.

On a careful reading of the opinion of Judge Earl, in the case of Terrel v. Wheeler, 123 N. Y. 76; 33 St. Rep. 404, I think he held that the notice to property owners under the act of 1883, was broad enough to apply to taxes invalid on constitutional grounds. He said (page 82, 123 N. Y., and 33 St. Rep. 404):

“It was the clear purpose of this section to bring within the operation of the act and jurisdiction of the board of assessors all the taxes, assessments, and water rates which were unpaid and in arrears, whether they were valid, or by reason of some irregularity, or even want of jurisdiction in their imposition, invalid. The words, ‘attempted to be levied or imposed,’ clearly have reference to taxes, assessments, or water rates which had been levied or imposed, but which, nevertheless, were illegal and invalid.”

Page 84, 123 N. Y., and 33 St. Rep. 404:

“It is said that the notice required to be given is inadequate, because it is only a notice to persons affected by any arrears of taxes, assessments, or water rates,’ and therefore is no notice to* any person of invalid taxes ‘attempted to be levied or imposed/ But the legislature was dealing with this whole body of taxes-some of which were valid and some invalid. Whether valid 01-in valid, they were all formally imposed, and were, in form tax impositions, and the notice was plainly intended to cover both kinds, and would undoubtedly be so understood by every one. The hearing before the board was intended to be as to both kinds and the notice was intended to, and must be supposed adequate to-reach, all persons affected by both kinds.

All water rates in this city, whether attempted to be levied on: improved or vacant property, prior to 1888, were void. It was held by the court of appeals in Re Union College, 129 N. Y. 308; 41 St. Rep. 340, following the decision of Remsen v. Wheeler, supra,' that water rates on vacant lands in Long Island City were void. The question there arose whether or not it appeared in the record that the lands were vacant, and Judge Fiitch said) paige 314, 129 N. Y., and 41 St. Rep. 640):

“But I am also of opinion that whether the lands were vacant, or had buildings upon them, nnd even whether the water was used or not totally immaterial, so long as the rolls imposed a tax.”

As to assessing water rates on improved property, the charter of Long Island City (section 9, subd. 4, chap. 461, tit. 10, Laws-1871) is almost a copy of the law applicable to Brooklyn (section 18, chap. 396, Laws 1859) prior to 1888. See chapter 44, Laws 1888. It seems therefore, that all water rates formally levied in this city between 1859 and July 1, 1882, were’ void, and if the claim of plaintiff is sound, none whether on vacant or improved property, could come within the 3 urisdiction of the board of assessors under the act of 1883.' The difficulty in the contention is that water rates are repeatedly mentioned in the act, and the legislature intended that they should be considered by the board. It may be answered that Remsen v. Wheeler, was not decided until 1887, four years after the passage of the arrears act. The water rates 'were void when laid, and were not made so in 1887 when the court of appeals so decided. The learned lawyer who drew the act of 1883 may have had knowledge, at that time, that the validity of the water rates was questioned. Another answer to the contention of counsel that water rates were not within the scope of the act of 1883 can be made. While the void water rates-could not be confirmed by the legislature, without a notice of hearing to the property owners, it was within the power of the legislature to direct a new assessment, not to exceed the original amount, in place of the water rates, provided the property owner-had a hearing. This seems to have been done by the act. The board of assessors were directed to relevy so much of the original water rates as was just and equitable, after hearing the property owners. . <

6. It appears from the testimony in these cases that tabulated statements showing the arrears existing against each parcel of land owned by plaintiffs were prepared by the board of assessors. After these statements were made, a resolution was adopted by the board that a temporary computation of interest at six per cent, per annum should be made o£ all arrears from the date of confirmation to September 30, 1883. Such computation was made, and the amounts of interest were set opposite each item of arrears. So^ 'far it appears that the statements were made by general resolutions adopted by the board. On the statements also appear, in some cases, deductions of principal and interest, and on the balance of principal interest, at six per cent, per annum was computed, by direction of the president of the board, for a period of eighteen months, and then a further computation-at tbe same rate for a period of one month. These certificates were issued on March 5,1885, and in many cases are the totals of principal of taxes, assessments, and water rates, after deductions, with interest to September 30, 1883, with added interest to March 31, 1885, and with superadded interest to April 30, 1885. By the act of 1883, the amounts certified were payable without interest for a period of sixty days. Counsel for the plaintiffs contend that the board had no authority to add interest after the date of the certificate, and that they nullified the terms of the act by adding interest for period of nearly sixty days after the certificates were made, when the act provided that they should be payable without interest. I find on examination of the printed record of the court of appeals in Terrel v. Wheeler, supra, that the counsel for the defendant in that case raised the point that, under the act, the assessors were bound to keep a record of their proceedings, and that such record should show in detail the items,—how the certificates were made up. The court of appeals did not agree with the claim of counsel. By the act of 1883, the board were to keep a record of their proceedings, in which should be entered their determination as to the amount to be charged and assessed upon each parcel of land. The act further provides that a majority of the members of the board should constitute a quorum for the hearing of objections, and should concur in the fixing of the amount to be charged upon and against each parcel of land. The act also provided that they were to determine how much of the arrearages ought, in fairness and justice, to be “laid, assessed, and charged against, and actually collected from said land.” There is no proof in the case showing what influenced each assessor to vote for the amount fixed in any certificate. It is true that, in many cases, the amount fixed agree substantially with the amounts shown on the tabulated statements, including interest added and superadded. In no case did the assessors fix an amount in excess of the arrearages, including statutory defaults, even if the water rates void on constitutional grounds are struck out of the statements. The assessors could take testimony under the act, if they desired to, and they were also to act on their own knowledge and information. They could have statements prepared of arrearages and computations of interest, but in the end they were simply to decide upon an amount which was justly and fairly due from the land to the .city. The board had jurisdiction over any parcel of land in this city, as then constituted, if arrearages of taxes, assessments, or water rates existed on such parcel. Bowns v. May, 120 N. Y. 857; 31 St. Rep. 700. My point is that, though the sum fixed agree with the amounts in the tabulated statements, including the added interest, yet the assessors judicially decided that such sums were fairly and equitably due, as they were directed by the act of 1883. If the sum fixed was, in-their opinion, justly and fairly due, it is not material how they reached' their conclusion.

If it be assumed that the assessors agreed upon an amount in the way shown by the tabulated statement, and were in error in so doing, I am of opinion that the errors cannot be corrected in a collateral action. It must be conceded that, if the assessors had no jurisdiction, or possibly if they exceeded their powers (though a learned judge at special term seems to have held to the contrary in Norris v. Jones, 1 Misc. Rep. 198; 56 St. Rep. 514), the certificates would be void. The amounts fixed were erroneous, but not invalid; but. even if held invalid, they were so only as to the excess of interest, and a court of equity would, in my opinion, have power to reduce the amounts by the invalid excess. The authorities as to assessments and taxation in this state are many, and I •confess it is difficult to understand fully all the fine points without a careful and repeated perusal, though they seem plain on the question that there is a distinction between an erroneous and an invalid assessment. As to the assessment of taxes, if the assessors act within their jurisdiction, there are many authorities that an error can only be corrected by certiorari. Foster v. Van Wyck, 2 Abb. Dec. 167; Swift v. Poughkeepsie, 37 N. Y. 511; Van Deventer v. Long Island City, 139 id. 133: 54 St. Rep. 510; In re McLean, 138 N. Y. 158; 51 St. Rep. 873; Mayor, etc., v. Davenport, 92 N. Y. 604. It has been claimed that the remedy by certiorari is discretionary. In the case of United Lines Telegraph Co. v. Grant, 137 N. Y. 7, 12; 49 St. Rep. 886, Judge Finch stated:

“ It is no answer to urge that the allowance of the writ is discretionary. That discretion is not arbitrary, and it must be assumed that the writ will always issue where there is a proper subject to review.”

7. The owner of the property in suit, and from whom the plaintiffs derive title, by his representative, Mr. Edward H. Litchfield, made certain tenders of payment of taxes, etc., to the registrar of arrears under chapter 572 of the Laws of 1880, and I shall assume and find that said tenders were made as testified to by Mr. Litchfield, and were in accordance with the law. The tenders were rejected by the registrar, on the ground that Mr. Litchfield only offered to pay a one-fifth installment of the taxes, etc., with interest from the date of the passage of the act, whereas the city claimed that he should pay with interest from the date of confirmation of each tax. The tenders were made and rejected in September, 1880, and, after that time, Mr. Litchfield did nothing towards enforcing the same until the commencement of these actions. In the spring of 1883, he testifies that he had several interviews with Mayor Low, who was then in office, in relation to a settlement, of the taxes in arrears, but it does not appear that he ever mentioned to him that he had made the tenders or claimed any rights thereunder. On the second interview, Mayor Low stated that the act of 1883 was passed, or had been passed, under which the assessors were to act on all property in arrears. I quote from the testimony of Mr. Litchfield:

“ That I must go before them. I told him that I did not care to go before them; that I held that they had no jurisdiction over our property for ceriain legal reasons. He said that made no matter, that I should have to go before them.”

At the time, or about that time, the tenders were rejected by the registrar, it had been decided by Justice Barnard of the supreme court, at special term, that the city was right in its contention as to interest. Subsequently, a property owner whose tender was rejected on the same ground commenced proceedings in the supreme court by mandamus to enforce the tender. The city succeeded at the special and general terms of the supreme court, but was defeated in the court of appeals. People v. O'Keefe, 90 N. Y. 419. The matter was decided in that court on November 28, 1882, or over two years before the -assessors acted on the property involved in this litigation, under the arrears act of 1883. It seems to me to be very material that the registrar, in rejecting the tender, was acting in good faith, and that he was upheld in his claim by the general term of the supreme court It shows that the law was difficult to be construed, and its construction could only be settled by the court of last resort. The counsel for the plaintiff have cited many cases on the law of tender and its effect on the obligation sought to be extinguished. I hold that a tender made to a public official is very different in its effect from a tender made to an individual on a private contract. The tender to the registrar of the first installment of the amount required to be paid under the act of 1880 did not absolve Mr. Litchfield from all subsequent payments or tenders of payment required by that act. The registrar could only act on the tender made to him, and could not lay down a future policy for the city, or determine how the law should be interpreted during the four years after 1880. Mr. Litchfield had no right to assume that tenders of subsequent installments would be rejected, particularly after November 28, 1882, when the court of appeals decided that his construction of the law was the correct one. It is probable that a court of equity would have relieved him from his default of tender of the second and third installments due in 1881 and 1882, and perhaps even from the nonpayment of subsequent taxes for 1880 and 1881, if he had applied in due time; but I fail to see how he could be released from the default of the tender of the installments of 1883 and 1884, or of the taxes of 1882,1883 and 1884. Mr. Litchfield knew, when he made the tenders of 1880, that he was dealing with an officer of limited powers, and that such officer had no authority to make a contract or to waive a statutory provision. The registrar simply made a mistake in the law, though he acted under a decision made by a learned judge at special term, which decision was subsequently approved of by the general term. The law was of doubtful construction. The judges disagreed. I mean to say that the rights of the plaintiffs under the tender should be strictly construed, and that Mr. Litchfield, and his successors in interest acquired the rights which the tender gave them and no more. On this point, I refer also to my opinion on the decision of the motion for a preliminary injunction.

8. It is also claimed that the taxes for the years 1881, 1882, 1883 and 1884 were invalid because the assessment rolls did not contain two columns,—one headed “Reductions and Cancellations, ” and another headed “Arrears.” The charter so required, and the assessors should read and literally follow the law. Nevertheless, I fail to see how the omission in anywise invalidated .the taxes. Suppose the charter read that the rolls, on the outside, should have an indorsement, “These rolls are to be transferred to the registrar of arrears in twelve months after date of confirmation,” and such indorsement was omitted, I do not think the omission would affect the validity of the taxes. The headings omitted are simply the headings of columns to be filled in after the taxes are confirmed. Judge Allen said, in Westfall v. Preston, 49 N. Y. 349, 353:

“A substantial compliance with the statute in the measures preliminary to the taxation of persons and property, in all matters which are of the substance of the procedure, and designed for the protection of the taxpayer and the preservation of his rights, is a condition precedent to the legality and validity of the taxes.”

The headings of the columns are not of the substance of the procedure, or designed for the taxpayer. The first column is for the purpose of correct bookkeeping after the-confirmation of the taxes, and the second is filled up, in case the property is in arrears, in order to give notice to the delinquent. The columns can be headed after the taxes are confirmed without any injury to the taxpayer.

9. ' There are two certificates involved in this litigation, in which the board of assessors joined lots, as shown on the ward map, in single parcels. One certificate was made as to lots 5 to 14 inclusive, in block 3, and the other as to lots 1 and 2 in block 78. The taxes, etc., of the lots referred to, prior to July 1, jL882, had been assessed separately, or at least for a portion of the time, and water rates were included in the arrears on the lots in block 78, but not on the lots in block 3. I am of the opinion that the assessors had no power to join lots in a single certificate, under chapter 114 of the Laws of 1883. In the case of Terrel v. Wheeler, supra, the court of appeals held that the board could not levy a new tax, or increase a tax, and that they were to take the arrears in form as they were levied or attempted to be levied. If the assessors joined lots, then, they reassessed the tax on lot 5 upon lot 14, that on lot 6 on lot 13, and so on. In other words they took the arrears which existed separately on each lot, from 5 to 14 inclusive, and reassessed what they thought was equitable and just on the new parcel, consisting of the entire plot of lots. In the case of May v. Traphagen, 139 N. Y. 478; 54 St. Rep. 726, the court of appeals substantially held that, under the charter, the assessors should assess each lot as shown on the ward map separately, and should not join lots together. Under the arrears act, the board had jurisdiction over any parcel of land affected by arrears to consider each parcel by itself and certify the amount to be collected therefrom. By section 3 of the act it was provided that it should not be necessary, in the certificate, to state the name of the owner, nor to describe the premises, otherwise than by block and lot numbers, and by section 12 it was further provided that the assessors could apportion .certificates, and, in such case, the assessors should cause the assessment map to be altered so as to show such subdivisions and give a new number to each of the same. The clause in section 12 would seem to plainly indicate-that the certificate should contain a single number, and should conform to the assessment map. If it be assumed that water rates, invalid on constitutional grounds, were within the scope of the act of 1883, as I have already held, then I think that, under the notice of hearing as provided in the act, the property owners were only heard as to the parcels affected by the invalid water rates, and that they had no hearing or right of hearing as to any assessment on the joined parcels. Mr. Litchfield was formally notified, by advertisement, to appear and give his reasons why any part of the arrearages should be reduced or remitted. For example, he was bound to give his reasons why the arrears existing against lot 5 in block 3 should be reduced or canceled, and was not called upon to give bis reasons why the arrearages on lot 5 should not be reassessed on lot 14. Again, the taxes, etc., not invalid on constitutional grounds, but invalid for technical reasons, were confirmed as against the land on which the tax was laid. The taxes on lot 5 were not confirmed and made a lien on lot 14. For the reasons stated, I hold that the two certificates, although on their face valid, on the proofs are void, unless validated by subsequent legislation.

It is claimed by the learned counsel for the city that the certificates where the lots were linked together were'confirmed by section 1 of chapter 33 of the Laws of 1892. This section merely amends section 3 of title 8 of the revised charter of this city, passed in 1888 (chapter 583), by inserting the words:

“And shall also be applied to the payment of the expenses of carrying out the provisions of this act, when certified by the head of the department incurring such expense, and approved and allowed by the mayor.”

The amendment, otherwise, does not change the section ; therefore, we must look for the confirmation in the charter as passed in 1888. Ely v. Holton, 15 N. Y. 595. When we look at the act of 1888, we find that chapter 114 of the Laws of 1883 is thereby repealed (section 35, tit. 22, chap. 583, Laws 1888), and - substantially the same language is inserted in section 3 of title 8 as in the act of 1883, except as follows: “And the amount so fixed, determined, and certified by them in each case is hereby declared to be and is made a valid and binding tax, etc.,—instead of, as in section 2 of the act of 1883, “And the amount so fixed and determined and certified by them in each shall thereupon become and be a valid and binding tax, etc. The confirmation in the revised charter was enacted to preserve the rights of the city acquired pursuant to chapter 114, and not to conform acts of the assessors where they did not follow the law. The new charter, by its terms, only confirmed the determination of the assessors made pursuant to the act. Such charter was passed simply to bring all the laws applicable to this city into a single act. People ex rel. Ullrich v. Bell, 24 St. Rep. 114; affirmed in court of appeals, 125 N. Y. 722.

10. Judgment will be entered in the two cases dismissing the complaint, except as to the two certificates set forth in the last subdivision of this opinion. As to such certificates, judgment is ordered for the plaintiffs. In view of the amount involved in this litigation and of the intricate questions of law arising therein, I think that the plaintiffs are entitled to have my decision reviewed by the general term before the city should be permitted to enforce its claim by a sale, and therefore will grand a stay after the appeal is perfected. <


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of the People ex rel. John F. Dobson, App’lt, v. Fire Commissioner of the City of Brooklyn, Respt.

      (Court of Appeals,

      Filed June 14, 1895.)

    1. Statutes—Repeal.
    The rule that a special statute, providing for a particular case and applicable to a particular locality is not repealed or modified by a subsequent statute, general in its terms and application, does not obtain where the intention of the legislature to repeal or modify the special law or the charter is clear and manifest.
    3. Same.
    Chapter 710 of 1893 modifies the charter of the city of Brooklyn, relating to the compensation of officers of its fire department, and it is the duty of the fire commissioner of the city to fix the salaries of the members of the fire department as provided in said act.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term denying an application by the relator for a writ of mandamus requiring the fire commissioner of the city of Brooklyn to fix and determine his salary as fireman of the fire department.

      William P. Pickett, for app’lt; Albert Q. McDonald, for resp’t.

       Reversing 56 St. Rep. 181.

   O’Brien, J.

The relator is the foreman of one of the companies of the fire department of Brooklyn. This proceeding was instituted to compel the defendant, the Fire Commissioner, to fix his salary at a sum not less than $1,800 per year. On the 29th of June, 1892, the commissioner acted and fixed the salary at $1,700. The relator claims that this was $100 less than the minimum prescribed by the statute. The only question is whether chapter 710 of the Laws of 1892 appilies to the case. That act reads as follows :

“The board of fire commissioners in all cities of this state having, according to the last census, a population exceeding nine hundred thousand, are hereby authorized and empowered with the approval of the board of estimate and apportionment, to fix and determine, from time to time, the salary of the members of the fire department ; the chief of the department whose salary shall not be more than six thousand dollars nor less than five thousand dollars and the two deputy chiefs whose salary shall not be more than forty-five hundred dollars nor less than thirty-five hundred and the chiefs of battalion whose salary shall not be less than twenty-seven hundred and fifty nor more than three thousand five hundred dollars ; and to captain or foreman of the department whose salary shall not be more than twenty-five hundred dollars nor less than eighteen hundred dollars and to assistant foreman or assistant captain whose salary shall not be more than eighteen hundred dollars nor less than fifteen hundred dollars.
“The pay or compensation mentioned in the foregoing section shall be paid monthly to each person entitled thereto, subject to such deduction for and on account of lost sick time, disability, absence or fines, as the said board may by rules and regulations from time to time prescribe and adopt.
“All acts and parts of acts inconsistent with this act are hereby repealed.
“This act shall take effect immediately.”

It became a law on the 20th of May, 1892. The compensation of officers of the fire department of Brooklyn has heretobefore been regulated by the provisions of the charter of that city (Laws of 1888, chap. 583, title 13, § 6). The courts below have held that these provisions still remain unaffected by the later statute above quoted. This result was reached by the application of a principle well settled by a class of cases of which McKenna v. Edmunstone, 91 N. Y. 231, is a leading one in which the rule is enforced that a special statute providing for a particular case and applicable to a particular locality is not repealed or modified by a subsequent statute general in its terms and application, although the terms of the general act would, when taken strictly and but for the special law, include the case provided for by the latter, and that general acts should be construed as not repealing or affecting the provisions of charters of municipal corporations. This rule, however, does not obtain where the intention of the legislature to repeal or modify the special law or the charter is clear and manifest. When, by any reasonable or fair construction the two enactments can be made to work together, and each can be made to accomplish a different and independent result, a special or local statute will not be affected by a subsequent general law relating to the same general subject. But we think that it is too clear that the legislature intended the act in question to apply to Brooklyn for the application of the principle. To hold otherwise, it would be necessary to disregard the language and general scope of the act as well as the facts notoriously existing when the act was introduced and passed. The title declares that the law was to apply to the uniformed firemen in all the cities of the state having" a population by the last census of more than nine hundred thousand. Such, also, is the language used in the body of the act. The last census referred to was that taken under the direction of the very legislature that enacted the law, and which was completed in February previous, nearly three months prior to its passage. This census showed that Brooklyn had then a population of more than nine hundred and fifty-seven thousand, a fact which, it must be assumed, was perfectly well known to all the members of the legislature. It is impossible to say, under these circumstances, that the legislation was intended for the city of Hew York alone. That city had by the same census a population of more than eighteen hundred thousand. It would be contrary to all reason and every probability that the legislature intended to include that city alone in the term “cities of over nine hundred thousand population.” It is clear, from the language employed and from the result of the census which had then been made public, that it was the intention that the act should apply to Brooklyn also. It is said that the law could not apply to Brooklyn for the reason that the several boards and officers mentioned and designated in it are peculiar to the city of Hew York, and do not exist in the other city either as a part of its fife department or its municipal government. But it appears that in the latter city there are individuals and boards in the fire department and in the city government, who, under different names, exercise the same, or substantially the same or similar, powers, and are charged with similar duties as those who are designated in the act perform in the former.

The general law of statutory construction (chap. 677, Laws 1891, section 18) provides that where reference is made to special officers of a municipal corporation, or to a board of such officers, it shall be deemed to refer to a single officer holding such office when but one person is chosen to fill it in pursuance of law.

So we think the statute in question operated to modify the provisions of the city charter so far as to confer upon the fire commissioner power to fix the relator’s salary, from time to time, at a sum not less than $1,800, and it became the duty of that officer to act under the new law when called upon by the relator to do so, or, at least, when fixing the salary. It is necessary, however, that the action of the fire commissioners shall be approved by the board of estimate, the financial body which, in Brooklyn, exercises the same or similar powers and performs substantially the same duties as the board of estimate and apportionment in Hew York. It is probably not very material whether such approval precedes or follows the action of the fire commissioner. It is certainly competent for the latter officer to act in the first instance and then submit his action to the board of estimate for its approval. It may be that it is discretionary with that board to approve the actions of the commissioner or to refuse. But we cannot say in this case that they will refuse, and since it appears that the commissioner has declined to act under the statute at all the order of the general terra and that of the special term should be reversed and the application for the writ of mandamus granted, with costs in all courts to the relator.

All concur.

Ordered accordingly.


author: Gray, J.

text:
    In the Matter of the Petition of the Southern Boulevard Railroad Company, App’lt.

      (Court of Appeals,

      Filed June 11, 1895.)

    1. Condemnation proceedings—Appointment of commissioners.
    When a petition for the condemnation of real property is properly and duly pi'csented to the court, the court is required, if no sufficient cause is shown in opposition, to make an order appointing commissioners for the purpose of, ascertaining the compensation to be made to the property owner; when their report comes on to be confirmed by the court, then is the time for judicial action upon it, either in confirming it or in setting it aside for irregularity or for error of law in the proceedings, etc.
    3. Same.
    The determination or report of the commissioners is subject to a review at a special term and at a general term of the supreme court, and it is intended that the question of compensation should be referred and confined to the action of the commissioners and of the supreme court.
    3. Same—Act of 1887.
    The existence of chap. 738 of 1887 is no cause for refusing the appointment of commissioners.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of special term denying a motion by the Southern Boulevard Railroad Company for the appointment of commissioners of appraisal to ascertain under the provisions of chapter 723 of the Laws of 1887 the compensation to be made to owners of property taken or to be taken by the petitioner.
    17m. H. Cohen and Henry L. Scheuerman, for app’lt; Mitchell JErlanger, for resp’t.

       Reversing 66 St. Rep. 675.

   Gray, J.

The Southern Boulevard Railroad Company was or- • ganized under the act of 1884 (chap. 252), as a street-surface railroad company, to operate its franchises upon and along the surface of the Southern boulevard. It has instituted this proceeding to condemn the land of the defendant, by virtue of the provisions in the General Railroad Law and in the "Code of Civil Procedure. The petition sets forth that the Southern boulevard was laid out as a public street in the city of New York under the provisions of chapter 290 of the Laws of 1867, entitled “ An act to authorize the towns of Morrisania.and West Farms to widen, make, extend and improve a highway in said towns, to be called the Southern boulevard.” Section 24 of that act provided, in substance, that no rail or tramway should be constructed upon the boulevard, without a special act of the legislature first obtained; and that in case the legislature should in the future, grant to any corporation the right to construct any rail or tramway, nothing in the act should be construed to affect the rights of the landowners to recover the full value of the land taken, to the same extent as if the boulevard had never been laid out on said lands. Chapter 723 of the Laws of 1887 amended the section referred to; so as, in effect, to limit the prohibition respecting the construction of any rail or tramway and to eliminate all that followed that prohibitian in the section with respect to the rights oí landowners, in case of a subsequent legislad ve grant of a franchise to any corporation; and substituted in lieu thereof a provision merely excepting from the prohibition a railroad company organized under the act of 1884. (Chap. 252.) The petition set forth the inability of the petitioner to acquire the defendant’s real estate, for the reason that he claimed for the same the full value of the land to be occupied by the petitioner’s tracks; whereas the petitioner desired, to acquire an easement, or interest, in it at only a nominal value. Upon the presentation of the petition to the supreme court, at a special term thereof, the same was denied, “ on the ground that said chapter 723 of the Laws of 1887 has been heretofore held to be unconstitutional and that the court has no' power in the premises to authorize proceedings under the authority of said act.”

This is evidently an effort on the part of the petitioner to secure a decision of this court upon the question of the constitutionality of the act of 1887, which the general term of the first department had already had already passed upon. 58 Hun, 497; 35 St. Rep. 550. The question is an interesting one, as we have hitherto had occasion to say in respect of it, 143 N. Y. 258; 62 St. Rep. 150; but much as we should like to settle the doubts of counsel, with respect to the question, we cannot overlook the fact that no case is made out justifying us in an expression of our opinion.

It was error for the court below to hold that they had no power to grant the application of the petitioner. That power was conferred upon the supreme court by virtue of the provisions of the General Railroad Law and was not affected by the provisions of the act of 1887 referred to. It is very plain that those provisions only concern and affect the determination of the commissioners appointed upon such an application. Those commissioners when appointed by the supreme court, in proceedings for the' condemnation of land, constitute the tribunal provided for by the constitution, who shall determine both the law and the facts with .respect to the compensation to be awarded upon the taking of land. As it was said in the matteer of this same petitioner, “ they are judges of the law and the facts, so far as they relate to the compensation to be awarded.” 143 N. Y. at p. 259; 62 St. Rep. 150. Their determination, or report, is subject to review at a special term and at a general term of the supreme court and it was intended that the question of compensation should be referred and confined to the action of the commissioners and of the supreme court. For the court below, therefore, to place its denial of the petitioner’s application upon the ground of a want of power to authorize proceedings, because of the provisions of the act of 1887, was to misapprehend their effect and to make them relate, not to the question of the compensation which the commissioners were to pass and report upon, but to the authority of the supreme court to act upon a petition which institutes proceedings for the condemnation of real property. When such a petition is properly and duly presented to the court, the court is required, if no sufficient cause is shown in opposition, to make an order appointing commissioners for the purpose of ascertaining the compensation, to be made to the property owner and when their report comes on to be confirmed by the court, then is the time for judicial action upon it, either in confirming it, or in setting it aside for irregularity, or for error of law in the proceedings, etc. Of course, the existence of the act of 1887 referred to is no cause for refusing the appointment of commissioners: for, as we have seen, its provisions are for the consideration of the tribunal to be constitued by the order of the court, or of the court itself, upon the coming in of the report.

It results from these views, that the order of the general term affirming the order of the special term, which denied the application of the petitioner, should be reversed and the matter is remitted to the supreme court for further proceedings herein,, without costs to either party.

All concur.

Ordered accordingly.


author: Finch, J.

text:
    The People, App’lt, v. Thomas G. Cowan et al., Resp’ts.

      (Court of Appeals,

      Filed June 11, 1895.)

    1. Supplementary proceedings—Judgment on forfeited recognizance.
    By the word “appearance,” as used in section 2453 of the Code, is meant the voluntary submission to the jurisdiction in whatever form manifested, and not the mere narrow and technical meaning indicated in. section 421 of the Code.
    2. Same.
    A surety, by signing a recognizance in the city of New York, consents that, in case of forfeiture, judgment may át once be perfected thereon upon which a general execution may issue, and such written consent to-the entry of judgment constitutes a voluntary appearance in the action and submission to the jurisdiction, and does not exclude the right of the creditor to institute supplementary proceedings.
    3. Same.
    The limitation in section 421 of the Code was not intended to protect a judgment-debtor, who is liable personally and generally, against whom a general execution issues, and all of whose property is bound by it.
    Appeal from order of the general term of the court of common pleas for the city and county of New York, which affirmed an order of special term vacating and setting aside an order for the examination of defendant John Cahill in proceedings supplementary to execution.
    Said Cahill, as surety with the defendant Thomas Gr.' Cowan, entered into a recognizance for the appearance of the latter at the court of general sessions in and for the city and county of New York at a time fixed. Cowan having failed to appear at that time, an order was entered declaring the recognizance forfeited and thereafter judgment was docketed thereon and an execution issued which was returned unsatisfied. An order was subsequently obtained for the examination of Cahill in proceedings supplementary to execution, upon an affidavit which alleged the facts above set forth and also that no part of said judgment had been paid.

      Forbes Hennessy, for app’lt; Benjamin Yates, for resp’t.

       Reversing 64 St. Rep. 11.

   Finch, J.

We are of the opinion that the order for the examination of the judgment debtor in proceedings supplementary to execution was properly granted and should not have been vacated. The ground taken by the courts,below is that such an examination is prevented by the limitation of the Code (section 2458); that “the judgment must have been rendered upon the judgment debtor’s appearance or by a personal service of the summons upon him." The purpose and scope of that limitation is quite plain. There are cases in which a formal judgment is rendered in which, nevertheless, the apparent debtor is not generally and personally liable, for the lack of appearance or service of a summons, as actions begun by attachment or against joint debtors where some only have been served, in which the liability is confined to some 'specific property and does not end in a general execution. Manifestly, in such cases the defendant, affected only by the lien upon the specific property charged, and not personally liable beyond that, should not be subjected to the supplementary proceedings. But the limitation was not intended to protect a judgment debtor who is liable personally and generally, against whom a general execution issues, and all whose property is bound by it. There is no reason for a discrimination among debtors of that class and character. The peculiarity of a judgment on a recognizance in New York city does not make it one entered without appearance or service of a summons. These describe the two modes by which a court acquires jurisdiction of the person. One is voluntary, the other compulsory. In one the party by his consent submits himself to the jurisdiction; in the other he is brought into court against his will. To say that one who has neither submitted to the jurisdiction nor been subjected to it by service of a summons, may yet be liable to a personal judgment at the hands of the court would be to make judicial authority boundless. By the word “ appearance ” as used in section 2458 is meant the voluntary submission to the jurisdiction in whatever form manifested, and not the mere narrow and technical meaning, well enough in its place, indicated in section 421. That relates to an appearance after service of the summons and does not describe one which is altogether voluntary. One who confesses a judgment does not “serve a notice of appearance or copy of an answer or demurrer,” and yet he certainly appears by his voluntary consent to the entry of the judgment. We have held that the law permitting judgment to be entered upon a recognizance in the ¡city of New York after an order of forfeiture constitutes a part of the undertaking signed by the party contracting as if explicitly written out in it, and that by signing it the defendant consents that in case of forfeiture judgment may at once be perfected thereon upon which a general execution may issue. People v. Quigg, 59 N. Y. 83. Such written consent to the entry of judgment constitutes a voluntary appearance in the action and submission to the jurisdiction, and does not excl ude the right of the creditor to institute supplementary proceedings.

The original order should stand and the order vacating it and the affirmance by the general term, be reversed, with costs.

All concur.

Ordered accordingly.


author: Clearwater, J.

text:
    The People ex rel. James E. Peck, Pl’ff, v. Philip Schantz, as Sheriff, etc., Def't.

      (Ulster County Court,

      Filed July 25, 1895.)

    Habeas corpus—Discharge.
    Where a judgment of conviction is valid and unreversed, an error in the commitment is not sufficient to authorize the discharge of the prisoner from custody.

      Brinnier & Newcomb, for relator; F. Arthur Westbrook, Dist. Atty. for resp’t.
   Clearwater, J.

The relator was convicted at a court of special session's held by one of the justices of the peace of the town of Shawangunk, in the county of Ulster, for a violation of the excise law, and judgment was rendered as follows: “ It is adjudged that said James E. Peck be imprisoned in the jail of Ulster county fifty days, or pay a fine of fifty dollars, and be imprisoned until it be paid, not exceeding fifty days.” This judgment was embodied in the commitment under which the relator is held by the sheriff. The matter comes up upon a writ of habeas corpus sued out by the relator to review Ms conviction and imprisonment, it being claimed by him that, as the judgment of the court of special sessions is in the disjunctive, it is void, and the sheriff has, therefore, no right to detain him ; and In re Hoffman (decided at the Albany special term of October, 1883), 1 N. Y. Cr. R. 484, is relied upon to sustain this position. It is provided by section 515 of the Code of Criminal Procedure that the only'mode of reviewing a judgment or order in a criminal action or special proceeding of a criminal nature is by appeal. So far as the proceedings here disclose, the conviction of the defendant was proper. No attempt to review it by appeal has been made, and, if it be valid, the relator ought not to be discharged because of a mere technical error (if error there be) in the mittimus committing him to the county jail. The case of People ex rel. De Voe v. Kelly, 97 N. Y. 212, would seem to be decisive, and must be regarded as overruling the Case of Hoffman, supra, and the other similar cases upon which the relator relies. De Voe was convicted of assault in the third degree (a misdemeanor), and sentenced to be imprisoned at hard labor in state’s prison for the term of one year. He sued out habeas corpus before the county judge of the county of Otsego. On the return of the writ it appeared that he was held in custody under this judgment of conviction, and he was thereupon remanded, and the "sheriff directed to carry out the judgment. Upon appeal to the general term the order of the county judge was affirmed, and it was further ordered that the original judgment rendered by the court of sessions be carried into execution. An appeal was taken to the court of appeals, which held that the crime for which the relator was convicted was a misdemeanor, and punishable only by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or both, and that the court below had exceeded its jurisdiction in adjudging the relator to be confined in a state's prison. But it held that the conviction was still valid, although the judgment was erroneous ; that the relator was not entitled to his discharge upon habeas corpus, but he should be remanded to the sheriff, in order that he might be dealt with according to law ; and therefore affirmed the order of the county judge in that particular. Thus it appears that, even if the judgment of the court of special sessions in the case at bar be construed in accordance with the views of the relator’s counsel, he is not entitled to his discharge here. It does not seem to me, however, that the judgment pronounced by that court is erroneous, as, by excluding those words which can be treated as surplusage, the judgment can be sustained. There has been some diversity of opinion as to the propriety and legality of reviewing cases of this kind by habeas corpus, but the correct rule appears to be that, where the judgment is valid, and unreversed, an error in the commitment is not sufficient to authorize the discharge of the prisoner from custody. Upon the whole case, I am of the opinion that the writ should be dismissed, and the relator remanded.

Writ dismissed, and relator remanded accordingly.


author: Silkman, S.

text:
    In the Matter of the Application for Probate of the Will of Harriet L. Losee, Deceased.

      (Surrogate's Court, Westchester County,

      Filed June, 1895.)

    W ill—Execution.
    A person, without the sense of sight, is incompetent to act as an attesting witness to a will.
    Proceeding for the probate of the will of Harriet L. Losee, deceased.

      William A. Jaycox, for petitioner ; George 0. Andrews, special guardian, contestant.
   Silkman, S.

The objections of the special guardian raised the question whether the paper propounded as the last wil land testament of Harriet L. Loose was signed by two attesting witnesses. The paper bears date the 6th day of December, and purports to be signed by the decedent, and attested by Eliza Brown and Elizabeth T. Lefurgy, as witnesses. There is no attestation clause. The testimony of the witness Lefurgy is to the effect that, at or about the date of the paper, it was signed by the decedent, in the presence of Mrs. Brown and witness, declared by the decedent to be her last will, and that thereupon decedent requested Mrs. Brown and witness to sign as witnesses; Mrs. Brown eyesight being such-that she could not see to write, witness signed Mrs. Brown’s name as well as her own, signing Mrs. Brown’s at her request. No one else was in the room at the time. Decedent was in bed, and Mrs. Brown and witness stood by bedside while the paper was signed upon a book, Mrs. Brown supporting decedent while she wrote. Mrs. Brown gives similar testimony, except that she testifies that her eyesight was so poor that she could not see whether there was ink on the pen with which decedent wrote, and that her eyesight has been about the same for fifteen years. Upon the witnesses stand she was unable to distinguish the writing upon the paper propounded, and in endeavoring to point out the signature, held the paper upside down without being aware of it, and actually pointed to the body of the instrument as the place where the names of the decedent and alleged witnesses were. Her efforts were such as to make it clear that she could only discern that the paper in her hand was not merely a piece of blank paper. She wholly failed to identify it as the one upon which she requested Mrs. Lefurgy to write her name. The Bevised Statutes, among other requisites for the proper execution of a will, provided: “There shall be at least two attesting witnesses, each of whom shall sign his name at the end of the will at the request of the testator.” One of the main objects of the statute is fori the purpose of having the paper intended to be the last will and testament signed by two persons as witnesses, who can subsequently identify it as the one which they saw the testator sign, or upon which they saw testator’s signature. A witness is one who has knowledge of a fact or occurrence sufficient to testify in respect to it. In the case of a will, a witness must have knowledge that the paper is a will by the declaration of the testator that it has been signed, by either seeing the signature written or by seeing the signature with an accompanying acknowledgement by the testator that it is his or her signature. Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; In re Mackay, 110 N. Y. 611; 18 St. Rep. 558; Sisters of Charity v. Kelly, 67 N. Y. 409; Wills v. Mott, 36 id. 486; In re Van Geison, 47 Hun, 8; 14 St. Rep. 117; In re Bernsee, 141 N.Y. 289; 57 St. Rep. 601. In the Mackay Case, Earl, J., in writing the opinion, says:

“Subscribing witnesses to a a will are required by law for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless, at the time of the attestation they see it.”

And, in the Case of Bernsee, Andrews, O. J., cites the Mackay Case, and says:

“It is essential to the due publication of a will, either that the witnesses should see the testator sign the will, or that such signature should have been affixed at some prior time and be open to their inspection.”

The loss of the sense of sight does not disqualify a person as a witness in many transactions, where they obtain knowledge of the transaction through the other senses than that of sight. By the sense of hearing, a witness can testify to the sound of the voice ; by the sense of feeling, to the question of shape; through the sense of smell, to the matter of odors. But without the sense of sight a person is incompetent and cannot be attesting witness to a will. There must be an identification of the instrument by one who has seen the signature written, or has seen the signature which has been acknowledged by the testator as his or hers. The páper propounded is identified only by the witness Lefurgy. She is the only'one who saw the signature of the decedent at the time of the execution, and can swear that it is the paper which the decedent signed, and which she signed as a witness. It is true that the statute permits the proof of the handwriting of the decedent and of the subscribing witness or witnesses, where the subscribing witness or witnesses are dead, or absent from the state, and their testimony cannot be obtained; but the statute applies only where there have been two attesting witnesses who have signed their names as such. The statute was passed to allow the probate of wills that had been executed with all the formalities required by law. The difficulty in this case is that there was but one witness, and the formalities prescribed by the statute were not fulfilled. Mrs. Brown was not a witness, because she could not see at the time of the alleged execution. If she had been able to see then, and subsequently lost her sight, the case might be different. Such was the case of Cheeney v. Arnold, 18 Barb. 434, relied upon by the proponent. In that case, a subscribing witness who had signed the will had become blind by reason of great age. The case was decided upon the well-established legal principle that, where the witnesses are dead, or by lapse of time do not remember the circumstances attending the execution, the law, after diligent production of all the evidence existing, if there are no circumstances of suspicion, will presume a proper execution of the will, particularly when the attestation clause is full. The statute prescribing the necessary formalities for the due execution of a will was passed to provide against fraud and imposition, and the protection given by it cannot be repealed by the court. Its wisdom needs noargu-ment to sutain it, even though in isolated cases injustice is dona and the wishes of the dead are thwarted.

A decree will be entered, denying probate.

Decreed accordingly.


text:
    Kingston Carriage Company, Resp’t, v. Alexander Hutton, App’lt.

      (Ulster County Court,

      Filed July 30, 1895.)

    Corporation—Proof of incorporation.
    The objection that the plaintiff did not prove its incorporation by the best evidence, cannot be made where defendant made no answer.
    Appeal from a judgment in justice’s courfin favor of plaintiff.

      Brinnier & Newcomb, for app’lt; Everett Fowler, for resp’t.
   Clearwater, J.

The plaintiff brought suit in the court below, alleging in writing that it was a domestic corporation. The defendant did not appear or plead. The plaintiff’s manager testifled it was incorporated, and proved its claim against the defendant, for which judgment was rendered; from which judgment the defendant now appeals, claiming that it should be reversed because, he having failed to appear or plead, the law imposed upon the plaintiff the burthen of proving every fact, evidence of which was necessary to justify the entry of judgment, by the best obtainable proof, and that oral testimony as to the plaintiff’s incorporation was incompetent and secondary.

Without discussing the question whether this testimony was secondary, of which I am not convinced, the claim of the defendant is untenable because of his entire failure to place himself in a position to raise the question. The Revised Statutes provided that, in suits brought by or against a domestic corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause the existence of such corporation unless the defendant shall have alleged in the answer in the action that the plaintiffs are not a corporation. 2 Rev. St. p. 458, § 3. By chapter 422 of the Laws of 1864, this provision was extended to all corporations, foreign or domestic, and when the additional chapters of the Code were adopted was embodied in it. Code Civ. Proc. § 1776. The rule is a familiar one, and has repeatedly been stated. In re New York, L. & W. Ry. Co., 99 N. Y. 12; Association v. Reed, 93 id. 474; McElwee Manujacturing Co. v. Trowbridge, 68 Hun, 28; 52 St. Rep. 64; Vulcan v. Myers, 58 Hun, 161; 34 St. Rep. 122; Bengston v. Steamship Co., 31 Hun, 96.

Further discussion is useless, and the judgment must be affirmed. with costs. .