author: Westbrook, J.: Learned, P. J.:

text:
    MALCOLM CALHOUN and Others, Appellants, v. THE DELHI AND MIDDLETOWN RAILROAD COMPANY and Others, Respondents.

      Town bonding — chap. 907 of 1869, as. amended by chap. 925 of 1871 — the latter act does not vitiate proceedings taken prior to its passage — requisites of petition and of notice of hearing — the petition may be upon several sepa/rate papers— the judgment of the county judge cannot be attacked collaterally — when the taxpayers of a town a/re estopped from disputing the validity of bonds issued by the town officer's.

    On May 6, 1871, a petition to authorize the town of Andes to issue - its bonds to aid in the construction of a railroad, was presented to the county judge of Delaware county, as provided by chapter 907 of 1869. On May 12, 1871, an act (chap. 925 of 1871) was passed which took effect immediately. It amended the act of 1869 by requiring the petition to state that the petitioners constituted a majority of the taxpayers of the town appealing on the last preceding assessment-roll, not including those taxed for dogs or highway tax.

      Held, that the amendatory act was not intended to affect or destroy proceedings taken prior to the time of its passage, under the original act, and that as the petition was entirely proper and sufficient at the time it was presented, it was not invalidated by the subsequent passage of the amendatory act.
    The acts (sec. 1) require the petitioners to state that they desire to invest the bonds or the proceeds thereof, in the stock or bonds “ of such railroad company in this State as may be named in said petition.” The petition alleged that the petitioners desired to invest the proceeds of the bonds “in the stock of the Delhi and Middletown Railroad Company, an association formed in said county and State.”

      Held, that as the petition followed the language of the act it was sufficient, and that it was not necessary to allege that the company was a domestic corporation.
    Nineteen petitions were presented to the county judge, identical in form, except that three of them contained at the end, the following words “ on condition that said road is located by Pish Lake and Shavertown.” One of the papers was verified by one of the persons by whom itcwas signed.

      Held, that the act did not require the signatures to be appended to a single heading, and that the presentation of all the papers at the same moment, was to be deemed the presentation of a single petition for the issue of the bonds.
    That the insertion of the condition in three of the papers was expressly authorized by the act of 1871, and did not invalidate them.
    That it was for the county judge to decide from the evidence before him whether or not the verification appearing upon one of the papers extended to all of them, and that his decision thereon could only be reversed as provided in the act.
    It is not necessary that the notice, which the act requires the county judge to^ publish, should state the place where the hearing must be had; it is sufficient if it designates the day. In the absence of any designation of a place of hearing,^the place which the county judge ordinarily occupies for the transaction of business would be intended.
    Section 2 of the act, as amended in 1871, requires the county judge, on making his final determination in any case, to “forthwith publish notice thereof for three weeks, at least once in each week, in the same newspaper in which notice of such hearing was published as ordered.”

      Held, that the want of publication did not invalidate the judgment, though it lengthened the time for the allowance of a certiorari to review the proceedings.
    It seems that the acts make the decision of the county judge conclusive evidence of the regularity of the proceedings, and that objections to the sufficiency of the petition, and of the notice of hearing, cannot be raised in a collateral action brought to restrain the payment of interest on bonds issued in pursuance thereof.
    The acts make the judgment and determination of the county judge that the petitioners represent a majority of the taxpayers of the municipal corporation, as shown by the last preceding tax- list or assessment-roll, and a majority of the taxable property upon the same, conclusive evidence of these facts, and such judgment can only be reversed or modified as provided by the act, it cannot be attacked or impeached in a collateral action or proceeding.

      It seems, that when a municipal corporation is authorized, through the action of its taxpayers, to have appointed for ft agents or commissioners to issue bonds or evidences of indebtedness in its behalf, and when such agents or commissioners, who have apparently been so appointed in pursuance of the authority of law, do -issue in its behalf what purport to be the obligations of the municipality; and its taxpayers, by both negative and affirmative action, treat them as valid and binding obligations during a series of years, that then neither the municipality nor its taxpayers can urge any objection to their validity founded upon alleged irregularities in the appointment of such agents or commissioners^ or in the issue of the obligations. (Per Westbrook, J.)
    Appeal from an order. made at a Special Term dissolving an injunction granted herein.

      I. H. Mouyna/rd, for the appellants.

      William Gleason and O. P. Collier, for the respondents.
   Westbrook, J.:

The plaintiffs appeal from an order of the Broome Special Term of the date of March 28, 1882, dissolving an injunction order granted January 2, 1882.

The action is brought by the plaintiffs, who are taxpayers of the town of Andes, Delaware county, against James Ballantine, supervisor and railroad commissioner of said town, the Delhi and Middletown Railroad Company, and certain other persons, who hold bonds of said town, purporting to be issued pursuant to the provisions of chapter 907 of the Laws of 1869, as amended by chapter 925 of the Laws of 1871, in aid of the said Delhi and Middletown railroad, to restrain the payment of such bonds and the interest thereon, and to have them adjudged void and canceled.

So far as the dissolution of the injunction depended upon the absence of a bond, as required by section 1 of chapter 531 of the Laws of 1881, the order of this court reversing the order of the Special Term denying the plaintiffs’ motion to file such bond nune pro tunc, must be regarded as eliminating that question from the' present appeal, which will then present solely the validity of the bonds which the action seeks to annul.

As has already been stated, the bonds sought to be invalidated purport to be issued under chapter 907 of the Laws of 1869, which was amended by chapter 925 of the Laws of 1871. The questions presented upon this appeal are predicated upon both acts, and therefore so much of the act, as amended, as bears upon such questions will be stated, calling attention when necessary to any change made thereby. The act, as amended in 1871, required, if bonds were to be issued by a town to aid in the construction of a railroad, “ a majority of the taxpayers of any municipal corporation who are taxed or assessed for property, not including those taxed for dogs or highway tax only, upon the last preceding assessment-roll or tax list of said corporation, and who are assessed or taxed, or represent a majority of the taxable property upon said last assessment-roll or tax list,” to make an “ application to the county judge of the county in which such municipal corporation is situate,” for that purpose. Such application was to be “ by petition, verified by one of the petitioners, setting forth that they are such majority of the taxpayers, and are taxed or assessed for or represent such a majority of taxable property, and that they desire that such municipal corporation shall create and issue its bonds to an amount named in such petition, and invest the same, or the proceeds thereof, in the stock or bonds (as said petition may direct) of such railroad company in this State as may be named in said petition.”

Upon receiving such application the county judge was directed to give notice by advertisement, “ published in some newspaper in such county, or, if there be no newspaper published in said county, then in some newspaper printed in an adjoining county, directed to whom it may concern, setting forth that on a day therein named, which shall not be less than ten days, nor more than thirty days, from the date of such publication, he will proceed to take proof of the facts set forth in said petition as to the number of taxpayers joining in such petition, and as to the amount of taxable property represented by them.”

The act then declares, “ It shall be the duty of the said judge, at the time and place named in the said notice, to proceed and take proof as to the said allegations in said petition, and if it shall appear satisfactorily to him that the said petitioners, or the said petitioners and such other taxpayers of said municipal corporation as may then and there appear before him and express a desire to join as petitioners in said petition, do represent a majority of the taxpayers of said municipal corporation as shown by the last p ’eceding tax list or assessment-roll, and do represent a majority of the taxable property upon said list or roll, he'shall so adjudge and determine, and cause the same to be entered of record in the office of the clerk of the county in which said municipal coi’poration is situated, and such judgment and the record thereof shall have the same force and effect as other judgments and records in courts of record in this State.”

Provision is then made for a review of the proceedings before the county judge by certiorari, but such writ must “ be allowed within sixty days after the last publication of notice of the judge’s final determination ; ” or if the judgment was rendered prior to the passage of the act of 1871, then such writ can only issue, provided it “is allowed within sixty days after the passage of ” such act. The court out of which the writ issues is required to “ review all questions of law and of fact .determined for or against either party by the county- judge,” and the section of the act from which the last quotations have been made, then declares: “And the said courts, or Court of Appeals, in appeals now pending, and in all future proceedings, may reverse or affirm, or modify, in all questions of law or fact, his final determination, or may remand the whole matter back to said county judge, to be again heard and determined by him. ‘And it may, by order, direct that he proceed thereon de novo, in the same manner and with the same effect as if lie had taken no action therein, or it may by such order specify how and in what particulars he shall hear and determine the same on such remanding thereof. Applications for certiorari shall be on notice. On review, persons taxed for dogs or highway tax only shall not be counted as taxpayers unless that claim was made before the county judge. The county judge shall forthwith proceed to carry into effect all orders of any court on review under this act.”

The act also empowers the Supreme Court, at General Term, to compel the issue of bonds thereunder, and to “ prevent, by injunction, the issue of said bonds, or any portion thereof, on notice and for good cause shown,” and declares that “ any justice of said court may grant a temporary injunction until such motion can be heard.”

The provisions of the act under which the bonds issued have been so fully stated, in order that the questions involved upon the appeal may be properly understood. It is impossible, we think, to read 'those provisions without being impressed by the thought that they were intended and designed to prevent precisely such contests as this appeal presents. This is apparent from the fact that while the decision of the county judge is declared to be a “ judgment ” and a “ record,” and to “ have the same force and effect as other judgments and records of courts of record in this State,” provision is also made for its review upon “all questions of law and of fact,” for its reversal, affirmance or modification for a new trial before the county judge, for a new hearing upon any specified particular and for an injunction by the General Term of this court to prevent the issue of the bonds or any part thereof.

The machinery of the law is ample for the protection of every right, and the course of procedure throughout is so clearly given, and the powers of courts upon appeal are so minutely stated, that it is apparent that the legislature was aware when it passed this statute of the questions which, without such provisions, would continually be raised in regard to the validity of bonds issued by municipal corporations in aid of the construction of railroads, and to prevent such contests, and the injustice of having them declared void in the hands of innocent holders, on account of non-compliance with some provisions of the law under which they were issued, they provided, as has just been stated, for a formal adjudication by the county judge prior to their issue, whose decision, subject to review by certiorari, was final.

Having given the provisions of the statute, under which the bonds, which are the subjects of the action, were issued, and declared in a general way, what seems to us to be the object which the statute had in view, the proceedings thereunder will next be stated.

There is no dispute but that on May 6, 1871, a petition, purporting to be signed by taxpayers of the town, and “ verified by one of the petitioners,” was presented to the then county judge of Delaware county, asking that bonds of the town of Andes, to the extent and amount subsequently put in circulation, should be allowed to issue. Such petition contained every requirement, as will be hereinafter shown, made necessary by the law then in force.

Neither is it denied but that the county .judge, upon receiving such petition, gave notice by advertisement in a newspaper published in the county of Delaware, and in- the very town sought to be bonded, that on a day therein specified, which was, as the act required, “not less than ten days, nor more than thirty days from the date of such publication,” that he would “proceed to take proof of the facts set forth in such petition, and as to the amount of taxable property represented by them.”

On the day mentioned in the notice (May 22, 1871), the then county judge of Delaware county made an adjudication, which, after reciting the petition and the publication of the notice, further recited and adjudged as follows: “ Whereas, due proof as to the said allegations in said petition having been made before me, and it appearing satisfactory to- me that said petitioners do represent a majority of the taxpayers of said town of Andes, as shown by the last preceding tax list-or assessment-roll, and do represent a majority of the taxable property upon said list or roll, on motion of White and Jacobs, attorneys for said petitioners, I do hereby adjudge and determine that said petitioners do represent a majority of the taxpayers of said town of Andes, Delaware county, as shown by the last preceding tax list or assessment-roll, and do répresent a majority of thq taxable property upon said list or roll, and do hereby adjudge and determine that the same be entered of record.”' To this adjudication and determination the said county judge appended his name and official title.

On the same day (May 22, 1871) the appointment of commissioners was made, one of whom resigned November 15, 1871, and such vacancy was immediately filled. Bonds to the extent of $98,000, payable September 1, 1901, in sums of $100, $500 and $1,000, with coupons attached providing for the payment of interest semi-annually on the first days of March and September in each year, have been issued, many of which are held and owned by the defendants: From the date of the issue of such bonds until the present action was commenced interest thereon has been regularly .and promptly paid, and at the annual session of the board of supervisors of the county of Delaware, which terminated December 10, 1881, upon the report of James Ballantine, one of the defendants, as supervisor of the town of Andes, such board caused a tax to be levied upon the town of $6,650 for the purpose of meeting the coupons for interest due March 1 and September 1, 1882. This money has been collected from the taxpayers of the town, and paid to.the supervisor for the purpose of meeting such interest. The injunction, which has been dissolved, and from the order dissolving which this appeal has been brought, restrained the defendant Ballantine from paying the interest to the holders of such bonds, and the defendants owning such bonds and coupons from transferring the same or any part thereof.

There is no question upon the papers but that the holders of the bonds and coupons have paid full value for the same, and there is affirmative proof by some of them that they were purchased at par, and in some instances above it. The sole grounds upon which the injunction is sought are, that the petition presented to the county judge was insufficient to confer jurisdiction, that the notice of hearing was defective, and that, in fact, such bonding was not consented to by a majority of the taxpayers of the town of Andes representing a majority of the taxable property of such town, as shown by its last assessment-roll previous to such application.

In the discussion of the objections which have been made to the form of the application or petition presented to the county judge and to the notice of hearing, which will be first considered, it is important to inquire how far these objections are available in this action. The general doctrine, that an officer clothed with power by a special proceeding>must strictly pursue his authority, is unquestionable, but its applicability to this action, which seeks collaterally to review the decision and determination of the county judge of Delaware county with reference to the bonds in controversy, is more than 'doubtful. The legislature, it will be conceded, had the power to prevent the operation of the rule in proceedings of the character sought to be annulled. Has it taken them out of such general rule? It is true that the course of procedure is clearly prescribed, but it has also provided for an inquiry by the county judge to ascertain whether or not the parties who apply to have a town bonded “ do represent a majority of the taxpayers of said municipal corporation as shown by the last preceding tax list or assessment-roll, and do represent a majority of the taxable property upon said list or roll; ” and if he finds that they do, then “ he shall so adjudge and determine, and cause the same to be entered of record in the office of the clerk of the county in which said municipal corporation is situate.” Such adjudication and determination are then declared to “ have the same force and effect as other judgments and records in courts of record in this State.” Giving the decision of the county judge of Delaware county that effect — and in its form he has followed literally the words of the statute — is it to be pronounced a nullity in a collateral action merely because in some unimportant particulars the petition, or application, or notice of hearing, do not conform to the requirements of the statute ?

It is apparent that the whole scheme of the act is' that the bonds are to issue provided a majority of the taxpayers and property ask for it. Whether or not such majority have so asked the county judge is to decide, and such decision, when made, conclusively establishes the only fact which gives authority for their issue. To pronounce, therefore, any issue void, in spite of the will of the taxpayers of the town, of which the recorded judgment is unanswerable proof, upon some technical objection of form, would be the substitution of shadow for substance in the administration of justice. What has just been stated to be the scheme of the act is shown, not only by its general provisions but also by the fact that without their names being signed to any petition, other taxpayers than those who subscribed the original petition are expressly authorized to appear before the county judge on the day of hearing, and then and there to unite in the application, and when so appearing the law makes it obligatory upon the judge, in his decision, to regard them as petitioners for the bonding. It certainly would be remarkable if a judgment of a court of record of this State should be held a nullity in a collateral action merely because of some technical defect in the form of the summons, or because in the statement of the cause of action in the complaint, there was an omission of some merely formal averment, whilst 'it still contained a substantial statement of the cause of action which the judgment was rendered to enforce. And so- in this case, it would • be equally remarkable if a judgment, unchallenged for eleven years, and declared by the act under which it was rendered, to “ have the same force and effect as other judgments and records in courts of record in this State ” should be adjudged void for want of a literal and exact compliance with a statute, in the form of the petition presented, when the right to render the judgment sought did not depend upon such petition alone, but upon the fact that a majority of taxpayers representing a majority of the property of the town desired the issue of the bonds. It seems to ■ us clear, then, that none of the-technical objections which have been made either to the form of the petition presented tc the county judge or to the notice of hearing are available in this collateral suit. The whole policy of the act forbids their consideration. This is apparent, as has already been stated, not only from the effect which it declares shall be given to the judgment but also from the definite provisions made for its review, the careful enunciation of the powers of the appellate court therein, extending not only to its reversal, affirmance or modification, in whole or in part, but to the sending back of the proceeding for further hearing upon any one point, and the lodgment in the General Term alone of the power to grant an injunction to restrain. the issue of the bonds in conformity with such judgment. The equity of this position is obvious. Under the apparent sanction, at least, of legislative authority, and the solemn and formal judgments of judicial officers, what purport to be valid obligations of towns have been issued to the extent of millions of dollars. These obligations have passed into the hands of innocent purchasers — oftentimes, as in this case, into the hands of institutions which are the depositories of the savings of the poor — and such holders are generally incapable of detecting flaws in legal proceedings. If, therefore, any other rule than .the one stated should be adopted, parties can shift from themselves to others the burdens they ought to bear, for the reason that they had either voluntarily assumed them, or had been so careless as not to prevent their creation by the-use of means placed -at their disposal. While insisting, then, that the act forbids the criticisms which have been made upon the proceedings had by and before the county judge of Delaware county, we will still proceed to examine the objections made to the. application and to the proceedings had prior to the rendition of the judgment.

The act of 1871 was passed May twelfth, and took effect immediately. The petition was framed under the act of 1869, and was presented May 6, 1871. It omitted to state what the act of 1871, upon a direct proceeding to review action thereunder, has been held to require (Town of Wellshorough v. The N. Y. and C. R. R. Co., 76 N. Y., 182) “that the petitioners constitute a majority of the taxpayers of the town appearing on the last preceding assessment-roll, ‘not including those taxed for dogs, or highway tax,’ ” and for a failure to state this fact it is claimed that the whole proceeding is void.

The objection is predicated upon the erroneous legal assumption that the act of 1871 repealed that of 1869, and rendered all proceedings taken under the latter prior to the passage of the former of no effect. The act of-1871 simply amended that of 1869. This is so expressly declared in its title, and while it contains new provisions, it also states how certain sections of the old act should thereafter read. In Ely v. Holton (15 N. Y., 595) it was held, that “ the effect of an amendment of a statute made by enacting that statute, ‘ is amended so as to read as follows ;5 and then incorporating the changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely copied without change are to be considered as having been repealed and again re-enacted, nor that the new provisions or the changed portions should ,be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to have become law, only at and subsequent to the passage of the amendment.” And precisely this-and no more was held in Angel v. Town, of Hume (17 Hun, 374) and Syracuse Savings Bank v. Town of Seneca Falls (86 N. Y., 317), the two cases cited by the counsel of the appellants. In, the former, Judge Smith (pages 379, 380) said: “ The true construction we apprehend is, that from the time the act of 1871 was passed it became the law as to all proceedings thereafter, whether then pending or commenced subsequently, while all that had been done before that time was supported by the first act, and must be judged by it.” In the latter case, Earle, J. (page 322), in speaking of this precise objection, said: “ That judgment cannot be assailed on the ground that it was not based upon a proper petition, because it was based upon a petition entirely proper and sufficient at the time it was acted upon.”

These authorities effectually dispose of the objection under consideration. The act of 1869, which was'the one in force when the application was presented, required no statement that the petitioners were a majority of the taxpayers of the town, “not including those taxed for dogs or highway tax only.” That provision was incorporated for the first time in the act of 1871. The object evidently was to prevent persons who were taxed for dogs, or a highway tax only, from being counted in determining whether a majority of the taxpayers of a town desired its bonds to issue. In other words, it defined who were the taxpayers who had the right to make the application. The judgment and decision of the judge was in the precise form that the act of 1871 required (sec.'2), and in reaching that conclusion it is to be assumed, nothing to the contrary appearing, that he 'obeyed the law which then governed his action.

It is further argued that the petition failed to state “ that the Delhi and Middletown Railroad Company, in aid of which these bonds were to be issued, was a corporation in this State.” The answer to this objection is that neither the act of 1869 or 1871 requires any such fact to be stated. The language óf both acts requires the petition to state what “ railroad company in this State ” is desired to be aided. Precisely this language the petition adopts, and it specifies the Delhi and Middletown Railroad Company,” which it further describes as “ an association formed in said county and State ” as the compa/ny sought to be aided. In The People ex rel. Rogers v. Spencer (55 N. Y., 1), which was a certiorari brought to review the action of the county judge, the difficulty was that the petition failed to state where “ the Rochester, Hornellsville and Pine Creek Railroad Compcmy'” was located. No objection, was made upon the use of the word company,” or that it was styled an association ” and not a corporation. Whatever, therefore, was said in that case about “ a domestic corporation ” must be deemed to apply to the facts then presented. It seems to have been assumed that the existence of the corporation was alleged, but its location was undescribed. In this, however, that difficulty is obviated, and the only objection to it is that the petition too literally follows the language of the statute.

The appellants also insist that the adjudication hy the county judge was void for want of a sufficiently verified petition. It is insisted that there were nineteen petitions instead of one, that some of these differed from others, and that only one was verified.

The petitions are identical in form except in three instances, in which, though otherwise precisely like the others, there is a condition expressed- that said road is located by Fish Lake and Shaver-town.” As the headings are identical the various papers presented at the same time may be regarded as one petition. The act does not require the signatures to be appended to a single heading, and the presentation of all the papers at the same moment is one declaration or petition asking that the bonds should issue. The condition appended in some instances, simply expresses in words the desire of the persons whose names are affixed thereto to unite in the general request, provided the road should be located as therein expressed. Such a modification of or reservation contained in the petition was not only a natural right but is expressly authorized by section 1 of the act of 1871, which declares: “ The petition authorized by this section may be absolute or conditional, and if the same be conditional the acceptance of a subscription founded on such petition shall bind the railroad company accepting the same to the observance of the condition or conditions specified in such petitions, provided, however, that noir-eompliance with any condition inserted in 311 cl i petition shall not in any manner invalidate the bonds created and issued in pursuance of such petition.” As a fact, according to the statement upon the argument, the railroad was located “by Fish Creek and Shavertown,” and, therefore, no ground of complaint upon that score really exists.

It has already been stated that the several papers, which constituted really only a single petition, were handed to the county judge at the same moment. Upon one of such papers was a verification by one of the petitioners, and it was for the county judge to decide from the evidence before him whether or not such verification extended to all the names appended to the several headings, and if he decided it did the parties aggrieved should have sought their remedy under the act. In any event, however, the one paper verified as the statute required, and averring every fact which such act makes'necessary, gave to the county judge jurisdiction to act. Its averments may have been untrue, but of such truth or untruth that officer was to judge, and though he found it untrue he was still authorized, if sufficient other taxpayers consented at the time of the hearing, to render the judgments authorized by the act.

It is also objected that the notice published by the county judge upon the presentation of the petition, was defective in not specifying the place where the inquiry would be conducted.

The notice was in the exact form required by both the act of 1869 and that of 1871. It is true it did not state the place where the county judge would be found upon the return day. It did, however, designate the day, the time of day, the month and year of the hearing, and in so doing it specified all that either law required. It is also true that section 2 of both acts requires the judge to proceed “ at the time and place named in said notice,” but the assumption that the notice would specify a place of hearing is a very different thing from requiring such specification therein. In the absence of any designation of a place of hearing, that which the county judge ordinarily occupied for the transaction of business would be intended, and of its locality the taxpayers of Delaware county must be presumed to have been acquainted. There is no pretense in any of the papers that any person was misled or deceived as to the place of hearing, and in the absence of any such averment this objection must also be overruled. It would certainly (adding in this connection an argument already presented as applicable to all these objections) be remarkable if a judgment of a court of record should, in a collateral proceeding, be held void and of no force or effect, merely because the notice of trial did not specify the place in the county at which the trial would take place.

It is said that the judgment of the county judge was not conclusive, because it was not entered of. record. The point does not specify what was omitted to make the record complete. The statute of 871 (and that of 1869 is similar) simply requires that officer to “ adjudge and determine, and cause the same to be entered of record in the office of the clerk of the county in which said municipal corporation is situated.” The county judge did make a formal adjudication in writing, as required by law, to justify the issue of the bonds, and did thereby “ adjudge and determine that the same be entered of record.” The complaint avers that such “ adjudication of the then county judge of Delaware county was entered in the office of the clerk of said county, on the 22d day of May, 1871.” It being conceded that the adjudication was made and directed to be entered of record, and that it was entered” in the proper clerk’s office, it is difficult to see what was wanting to make the record complete.

It was also insisted upon the argument that the adjudication was void, because the county judge did not, as the act of 1871 requires, publish notice of his final determination “ for three weeks, at least once in each week, in the same newspaper in which notice of such hearing was published as ordered.”

A careful reading of the papers has failed to discover the proof of such want of publication, or any averment thereof in the complaint. Assuming, however, that it was not so published the point is still untenable. The law does not make the validity of the judgment to depend upon the publication, but upon the fact that it has been rendered. The want of publication does not invalidate the judgment, though it may lengthen the time for the allowance of a certiora/ri to review the proceedings. The fourth section of the act of 1871 limits the time for allowing such writ by providing no writ of certiorari shall be allowed, unless said writ shall be allowed within sixty days after the last publication of notice of the judge’s final determination, as provided by section 2 of this act, and when such judgment is so entered prior to the passage of this act, unless said writ is allowed within sixty days after the passage of this act.”

The various objections which were made to the form of the proceedings had before the county judge have been considered and found untenable, and we now come to the last and, perhaps, principal point of the appellants, that the bonds are void, because a majority of the taxpayers of the town did not sign the petition; nor did the persons signing own or represent a,majority of the taxable property of the town.”

This point is not made against bonds, as already stated, which have been issued and purport to bind towns when taxpayers have had no opportunity to be heard, but against some which have been issued under a law which provided for a hearing before a judicial tribunal on notice, an adjudication by such tribunal, and an opportunity for review. The proceedings have been examined and found to be regular, and the question presented is, can the decision of that tribunal, upon a question of fact, be held in this collateral action, erroneous? Whether or not a majority of the taxpayers, representing a majority of the taxable property of the town of Andes, asked for the issue of the bonds, the county judge of the county of Delaware, within which the town was located, was authorized to decide, and his judgment, as has already been several times stated, is declared by statute, when made “ to have the same force and effect as the judgments and records in courts of record in this State.” Words are useless if his decision can in this action be held erroneous* and void, and no reported case to which we have been referred maintains any such proposition. On the contrary, the distinction between bonds issued under the acts of 1869 and 1871 and their issue by towns under acts which make the affidavit or certificate of some officer evidence of the requisite consents having been obtained, is manifest and has been repeatedly recognized. The judgment of the county judge has been held conclusive upon the question of consent by the taxpayers under the acts referred to, whilst the right to question the truth of an affidavit only is maintained. In Town of Springport v. Teatonia Savings Bank (84 N. Y., 403), which is one of the cases cited by the appellants, in speaking of the effect to be given to an affidavit of a town officer Judge Rapallo (page 410) said: “The case of People ex rel. Yawger v. Allen et al., Assessors (52 N. Y., 538, 542), draws the distinction between the effect of this affidavit and of the judgment of a county judge under other bonding acts.” In the case referred to by Judge Rapallo, Judge Grover (pages 541, 542), after pointing out the difference between the statutes which require a judgment by the county judge, and those which require an affidavit by some officer, says: “ In the former the county judge, if he finds the petitioners sufficient in number and amount of property, is to give judgment accordingly, which is made conclusive proof' of such facts. In this the assessors, or a majority are to make an affidavit, which is made proof of the facts.” Nor was this new doctrine. In The People ex rel. Haines v. Smith (45 N. Y., 772) the Court of Appeals had held the decision of the county judge final. On page 777, in announcing the opinion of that court, Judge Grover said: “It must be borne in mind that the determination is final, not only as to taxable inhabitants who appear and contest the fact, but equally so as to those who do not appear.”

It is scarcely necessary to add a word upon this point. The counsel for the plaintiffs only overstated the provisions of the bonding act when he argued that the jurisdiction of the county judge to make the order depended upon the fact that the consent of a majority of the taxpayers of the town had been obtained to the issue of the bonds. It would be more accurate to say, that while such act contemplates a consent to the issue by a majority of the taxpayers of the town representing a majority of its property, it also proi’ides a mode for the ascertainment and establishment of that fact; and that when the giving of such consent has been adjudged and declared, as therein pointed out, such judgment, unless reversed, conclusively and forever establishes that such consent has been obtained. It is true that the petition must allege that the requisite consent has been given, but its possible untruth in this particular is recognized when the officer is directed to count not only the names signed to such petition, but also such as appear upon the return day and then desire to unite in the application. Provision is then made for an adjudication, by the officer to whom such petition must be presented, upon the very question now sought to be raised, and that adjudication, unless reversed, is, as has just been stated,, conclusive. The decision when made may be wrong,, and in a general sense the county judge had no power to make a wrong decision, but error is inseparable from human tribunals,-and,, if committed, it cannot be made legally to appear to the court in a collateral action any more than the wrong of any other judgment of a court of record can thus be shown, because the statute has prohibited it.

Having examined the various objections made upon the argument to the validity of the bonds sought to be invalidated, and found them untenable, this opinion might terminate with the direction to enter an order affirming that of the Special Term, from which the appeal is taken. The importance, however, of this case, and the obvious fact that there are many other suits already brought, and that many more may be brought, involving the validity of bonds issued by towns in aid of railroads, induce us to comment upon another point which the papers upon this appeal sharply present, and that is the effect of the conduct of the town and its taxpayers with reference to the bonds now sought to be invalidated.

In the examination of this question it is not our purpose to discuss any point of difference existing between the Federal and State courts, as to the force to be given to recitals in bonds of this character. It may be proper, however, to say that our own views coincide with the Court of Appeals expressed in Cagwin v. Town of Hancock (84 N. Y., 532, 542) and several other cases, that as a rule such instruments do not become the obligations of the municipality unless the prerequisites required by the law auuiorizing their issue have been complied with. While maintaining this doctrine, however, we further insist that when a municipal corporation is authorized through the action of its taxpayers to have appointed for it agents or commissioners to issue bonds or evidence of indebtedness in its behalf, and when such agents or commissioners, who have apparently been so appointed in pursuance of the authority of law, do issue in its behalf what purport to be the obligations of the municipality, which, after their issue, such municipality and its taxpayers, by both negative and affirmative action, treat as valid and binding obligations during a series of years, that then neither the municipality nor its taxpayers can urge any objection to their validity founded upon alleged irregularity in the appointment of such agents or commissioners, or in the issue of the obligations. "We do not, of course, intend to affirm that an act of a municipal corporation expressly forbidden, or ultra vires, can be upheld upon the ground of acquiescence, but that which it may legally and lawfully do, when a majority of its taxpayers, representing a majority of its property, consent, and which purports to have been thus done, will be upheld when long acquiesced in; and it will especially be so held in favor of parties who have in good faith parted with their money and property on the assurance of its validity, given to them by such past actions of such municipality and its taxpayers.

This doctrine is abundantly sustainable both upon principle and authority. In reaching .such a conclusion by reason alone, without the-aid of adjudged cases, we have to apply only familiar principles. The legal rule that when one individual has assumed to act for another as his agent, and the party purporting to be bound adopts the act as his own, that such adoption is as effectual to validate the act as an original authority, is well settled. So, too, where the act of the agent purports to bind a number of persons, either by making an obligation professedly for them in their individual names, or executing it in some name which represents them as individuals, each person who adopts and ratifies the act as his is bound by it. No good reason can be given why’this general and well settled rule of law should not apply to the taxpayers within a municipal corporation. It is true that when the obligation of a municipality issues, it does not in words profess- to be one' which individuals are to discharge, but it is in fact one of that character. When made and delivered as the evidence of a debt which the corporate body is authorized to contract, and to issue therefor its written promise to pay, such promise of payment is really the promise of individuals, because out of their property its payment must be enforced. The name of the corporation in which the obligation issues really represents them, and if unauthorized solely because they have not consented to such issue, they and each of them must be careful not to adopt it as theirs, for such adoption, as adoption of what purport to be individual obligations, makes it their act as effectually as an original authority would do. Of course, in enunciating this principle, we intend to apply it only to such acts as may be lawfully done by the municipality to bind the property within its limits. That which the law forbids it to do it cannot do, but that which it may do by and with the consent of the taxpayers will be assumed to have been so done when such taxpayers, during 'a series of years, have by their action most emphatically declared that such consent was in fact given. If the relief sought by this action is granted, though -in form the bonds of a town are declared void, yet individuals only are relieved from the payment of obligations which they had power to authorize, and in regard to which they have so acted as to forbid the denial by them that such authority had been conferred. If the validity of the bonds in question had only been acquiesced in by the officers of the town, as the ratification in such a case would be the adoption by agents of acts by others also professing to be the agents of the town, the estoppel upon the taxpayers would not be so apparent, though even in such a case, under certain circumstances, it might apply. In this case, however, not only have the officers of the corporation again and again admitted by their official action the validity of the bonds, but each taxpayer of the municipality has year by year, for ten successive years, when called upon to contribute his or her share of the annual interest had the question of the adoption or the repudiation of the bonds sharply presented. It is idle to argue that the payments were involuntary. This is not true. Any one of the taxpayers had the right to prevent the imposition of the tax, or its collection when imposed. Nothing of the kind, however, was for ten years attempted, and during all that period, with perfect and complete knowledge of every fact, parties have assumed to act as their agents, not only in the issue of obligations purporting to bind their property but also in the collection from them, and each'of them, of the yearly interest due upon the securities issued. Not a single taxpayer during these past years has,- so far as this case discloses, ever expressed any dissent from the action of agents who claimed to exercise powers legally conferred, but on the contrary each one has, for himself and herself, by paying his and her share of the interest annually, deliberately and formally admitted the authority to bind the property taxed. Under such circumstances we see no more reason to permit the present plaintiffs, who have thus acted, to question the validity of these obligations, than they would be permitted to question obligations professing to bind them as individuals which they had^for ten years recognized as theirs by making annual payments thereon. In principle the cases are identical, and the distinction is in name and not in substance. In both, •when obligations are issued, the individual property is reached by a judgment thereon, and if it is competent for the individual to assent to an act as his when the act professes to be for him as an individual, it is equally competent for him, as a member of a municipal -corporation, to assent to the act as that of the eoi’poration, and as such, creating a valid obligation in his behalf; and when all those who bear the burden of the municipality have thus consented, each one and all are thereafter estopped from questioning the act as obligatory upon him or her. This reasoning clearly commends itself to equity and good conscience, for the effect of what the taxpayers and officers of the town have done is obvious. They have thereby established the credit of obligations they now seek to annul. Such obligations, on the faith of their action, were bought as investment not only by private parties for themselves, but also by institutions and persons as investments for trust funds, and now when held outside the town the individuals who have deceived others into becoming purchasers seek at this late day to compel such' buyers to lose the money they have in good faith paid. The defense does not commend itself to any just sense of right and fair dealing, and is none in fact, as has been frequently declared both in elementary treatises and in adjudged cases, as we shall next proceed to establish.

Judge Dillon, in his valuable work upon Municipal Corporations (vol. 1 [3d ed.], § 548,) says: “ As experience shows that the officers of public and municipal corporations do not guard the interest confided to them with the same vigilance and fidelity that characterize the officers of private corporations, the principle off ratification by laches or delay should be more cautiously applied to the former than to the latter. But the principle applies to Tooth classes of corporations as well as to natural persons. The general doctrine is undoubted that there is ordinarily no estoppel in respect to acts which are in violation of the Constitution or of an act of the legislature, or which are obviously ultra vires. * * * A a to irregularities in the exercise of an express power to issue bonds and particularly in respect to steps connected with preliminary conditions, the failure of the municipality or taxpayer to enjoin the issue, followed by long acquiescence, especially when this is accompanied by affirmative acts which recognize the validity of the bonds, such as receiving and holding the stock or consideration for the bonds, or paying interest on them for a series of years, has been held to estop the municipality from defending, on the ground of non-compliance with conditions precedent, especially when the bonds, as is usually the case, have been negotiated for value.” This doctrine, so clearly stated, is well established by adjudged cases.

When, under a law of Connecticut, bonds had been issued by the city of New London to a railroad company, which could only issue by the approval of two-thirds of the electors present at a city meeting held for that purpose, and such bonds had been publicly sold, their validity recognized in various ways, and among others by the payment of s'emi-annual interest thereon during a period of seven years, and “ no citizen had taken any means to prevent the sale of the bonds or the payment of the interest,” it was held by the Supreme Court of Errors of the State of Connecticut, in Society for Savings v. The City of New London (29 Conn., 174), “that the city in these circumstances.was equitably estopped from denying the validity of the bonds against parties who held them in good faith, and that individual citizens and taxpayers having thus acquiesced in the- conduct of the city, were equally estopped froiji denying their validity, so far as their individual rights were concerned.”

The case just referred to is a very important one; it was most fully and elaborately argued, and the unanimous opinion of the court; prepared by Elsworth, J., is worthy of a careful study. The comments of the learned judge, on pages 192, 193 and 194, upon the attempted repudiation by the city of New London of the obligations, after being acquiesced in by it and its citizens, are especially applicable to the case before us.

The doctrine of the Connecticut case — that municipal corporations, which have power to appoint agents to issue for them obligations, may, like individuals, adopt and make valid an act which was in the beginning insufficiently authorized — is also maintained in Stuart v. School District No. 1 of Kalamazoo (30 Mich., 69; opinion by Cooley, J.), in The State v. Van Horne (7 Ohio St. R., 327), in Tush v. Adams (10 Cush., 252) in Zabriskie v. C. C. and C. R. R. Co. (23 How. U. S., 381, 400), in Supervisors v. Schenck (5 Wall., 772; see pages 781; 782 and 783), in Pendleton County v. Amy (13 Wall., 297, 298) and in County of Clay v. Society of Sawings (104 U. S., 579).

The same rule of law, or the principles on which it depends, has also been repeatedly held in this State.

Thus in Hoyt v. Thompson’s Executors (19 N. Y., 208) it was decided that “ a corporation may ratify the unauthorized acts of its agents, which are within the corporate powers, and such ratification may, it seems, be inferred from acquiescence merely.”

In Peterson v. Mayor of New York (17 N. Y., 449) it was held, ££ A resolution adopting the plans, working drawings, etc., prepared by an architect, at the request of a committee not empowered for that purpose, and directing the erection of a market according to such plans, etc., the resolution being passed with notice of the facts is a ratification as effectual to bind the city as an original employment by express resolution.”

In New York and New Haven Railroad Company v. Schuyler and others (34 N. Y., 30, 49) it was held that ‘£ a corporation is liable to the same extent and under the same circumstances as a natural person for the consequences of its wrongful acts, and will be held to respond in a civil action at the suit of an injured party for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreign to its nature or beyond its granted powers the wrongful transaction or act may be.” And it was further held in the same cáse (page 63) that ££ it is a well recognized branch of the law of principal and agent that without any express or special appointment an implied agency may arise froni the conduct of a party.”

- In the casé last referred to the New York and New Haven Railroad Company was held liable for the losses which innocent buyers had sustained by the purchase of certificates of stock, in excess of its capital, issued by one Schuyler, not because he was actually empowered to issue them but because the company, by its action and conduct, was estopped from denying an agency or authority in him to do for and in its behalf the acts by which others had been injured.

The foregoing authorities abundantly establish the proposition that corporations, municipal or other, and their taxpayers or stockholders may, as private individuals in the conduct, of their affairs, so conduct themselves as- to be estopped from questioning the authority of a person who has assumed to act in their behalf; and that the recognition and adoption by them of acts professed to have been done for them may bind them as effectually as the conferring of the power so to do prior to their being done. A recital of the facts of this case will show the applicability of this principle to its decision, and they are again stated in this connection.

It is conceded that a large number of the taxpayers of the town, and professing to be a majority thereof, representing a majority of its property, asked the county judge of the county in which the town was situated for a judgment and action which would permit the issue of the bonds now sought to be annulled; that such judge, assuming to act in conformity wdth the requirements of .the law, after notice, determined and adjudged that a majority of taxpayers and property had petitioned for the • issue of such bonds, which judgment was entered of record; that then such judge appointed commissioners to issue the obligations of the town, which obligations were issued, and contain recitals showing their regularity, and assuming that all necessary and legal action had been taken to make them valid and binding upon the town ; neither the municipality nor any taxpayers since the rendition of such judgment and the appointment of commissioners on May 22, 1871, sought to review such judgment or to prevent the issue of the bonds, either of which could readily have been done; for ten years, twice during the year, the interest has been paid upon the bonds thus issued by the proper officers of the town, its taxpayers without objection paying the amount levied upon them for that purpose, and now, after the money necessary to pay the interest for the year 1882 has been collected from the taxpayers and is in the treasury of the town for that purpose, this action, the first one instituted, is brought to restrain such payment and to declare the entire issue illegal and void. In other words, both the municipal corporation and its taxpayers have, by both negative and affirmative action, ratified the action of the commissioners, declared over and again that the bonds were precisely what they purport to be, the valid obligations of the town issued under the authority of law and in ‘ accordance therewith, and now, when others - have in good faith become ■ the "owners thereof, and the town and its inhabitants have had and now have whatever of benefit or advantage the expenditure of the money realized from-their sale has created, an attempt is made by the action of courts, which should do justice and equity, to throw upon others the burdens which they voluntarily assumed, and which they had repeatedly stated, by acts of the most unequivocal character, they would cheerfully sustain.

It is not denied that the bonding of towns in aid of railroads has imposed great burdens, and in "many cases great injustice was originally perpetrated. Whatever action was taken in the bonding of the town of Andes was nevertheless voluntary. If the taxpayers were originally imposed upon, the law provided a remedy. They were not compelled either to submit to the issue of- the obligations nor to the-payment of interest thereon. The courts were open for redress. In this, as in many other instances, they were willing to have the world regard the obligations in controversy as instruments issued by their authority, until all were marketed to strangers to the entire transaction. Their conduct has deceived the parties whose money has purchased the evidences of .indebtedness before their maturity. Such -buyers could only see apparently valid obligations, an apparently valid judgment, and recognition, year after year, of what the bonds and judgment declared. A stronger case for the application of the doctrine of acquiescence cannot well be presented, and because of such acquiescence both by the town of Andes and its taxpayers in -the validity of the bonds, such acquiescence amounting to an actual adoption of them as the legal acts of the town, such town and its taxpayers must be held to be estopped from questioning their validity.

For the reasons which -have been given the order appealed from must be affirmed with costs.

Learned, P. J.:

I concur in the result. But I am not willing to say that the payment of interest is an estoppel; at least as to any persons, except those who may have purchased bonds, relying on the fact of previous payments of interest by the obligors.

Present — Learned, P. J., and Westbrook, J.; Bookes, J., not acting.

Order vacating injunction affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JESSE HALL, as Administrator, etc., of EBER C. DURKEE, Deceased, Respondent, v. RICHARD VAN VRANKEN, Appellant.

      Evidence — comparison of handwritings — the genuineness of the signature to be compared with the one in dispute, is to be proved to the satisfaction of the court —1880, chap. 36.
    Under chapter 36 of 1880, permitting the “ comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine,” the proof of genuineness is to be addressed to the court as distinguished from the jury.
    It is somewhat analagous to evidence tending to prove the competency of o»., who is called as an expert witness.

      It seems that to admit a paper without any evidence of its genuineness might be error.

      Hyde v. Woolf oik (1 Iowa, 159), criticised and not followed.
    This action was brought upon a promissory note alleged to have been made by the defendant. Upon the trial the court admitted in evidence a deed purporting to have been executed and acknowledged by the defendant, for the purpose of comparing the signature thereof with that of the disputed note. The defendant, who was present- in court, made no offer to disprove the genuineness of the signature to the deed or his identity with the person who executed it.

      Held, that the court did not err in so admitting the deed.
    Appeal from the judgment of the County Court of Eulton . county, affirming a judgment of a Justice’s Court in favor of the plaintiff. The action was brought by the plaintiff, as administrator of the estate of Eber C. Durkee, deceased, against the defendant, upon a promissory note held by the plaintiff, which purported to have been made by the defendant. The defendant denied the making and delivery of the note and pleaded payment.

      Andrew J. Nellis, for the appellant.

      N. H. Aníbal, for the respondent.
   Learned, P. J.:

The statute of 1880, chapter 36, permits the comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine. This' proof of genuineness, therefore, is addressed to the court, in distinction from the jury. The evidence on this point is not direct evidence upon the. merits. It is somewhat analogous to evidence tending to prove the competency of one who is called as an expert and the like. And the general rule, in regard to such classes of evidence is, that as the evidence is addressed to the court, error cannot be alleged-in respect thereto. The degree of proof which shall show that a witness has experience enough to testify as an expert must be left to the trial judge. So, too, the sufficiency of the proof which shall show that a paper is genuine, so that it may be used for comparison, must be also left to the trial judge. Possibly, to admit a paper without any evidence of its genuineness might be error.

Now, in this case, a deed executed and acknowledged by the defendant was admitted for the purpose of .comparison with the disputed note. And the defendant objects to this.

Of course, a person, whose name had been signed to a deed,' might ackziowledge the instrument, and thus adopt a signature made by some other person. And therefore an acknowledgment of a deed is not conclusive evidence that the signatuz’e is that of the party. But it is certainly prima facie evidence of that fact. In the very great majority of cases signatures to deeds are made by the parties thereto. The cases are rare where a party adopts a signature made by another person.

If a person on borrowing money were to deliver a note purporting to have been signed by him, would not that be prima facie evidence that the signature was in fact his own ? True he might have caused some one else to sign for him, and by adopting the signature might bind himself. But in the majority of cases such signature would be genuine, and it is therefore prima facie to be so considered.

Witnesses have often testified to a knowledge of handwriting, based on correspondence with the party. Now, in such cases, the correspondence might' possibly have been written by some other pei’son, with the authority of the party whose name was used. Yet inasmuch as persons usually write their own letters (unless the letters otherwise indicate), a knowledge of handwriting gained by correspondence makes a witness competent, although the witness never saw the party write.

Now, in the present case, a deed acknowledged by the defendant was offered for the' purpose of comparing the signature. The defendant was present at the trial; he made no offer to disprove the genuineness of the signature to the deed, a matter which he could easily have done, if it had not been genuine, and it was thereupon'admitted for comparison only.

The defendant urges that this was improper, because he says that a certified copy from the record would, on this principle, be equally proper as a standard of comparison. (Code C. P., 935.) But there is no weight in that argument. A certified copy does not purport to contain the signature of the party; but on the contrary purports to contain a copy thereof. The original deed purports to contain the genuine signature. We think that there was not an absence of all evidence as to the genuineness of the signature to the deed, and therefore there was no error in this respect.

It is again urged that there was no proof of identity between the signer of the deed and the defendant. Identity of name, coupled with the fact that the defendant made no offer to disprove the assertion that he was the signer of the deed, was enough to authorize the court to hold the signature of the deed to be the defendant’s.

The plaintiff was asked whether that was the signature of the defendant attached to the note; and this was excluded. It did not appear that the plaintiff had any knowledge as to the making of the note, or as to the defendant’s handwriting. It does not seem, therefore, that he could have given any evidence in aid of the defendant’s case on this point. He afterwards stated that from the evidence before him the signature was defendant’s. That testimony was objected to after it had been given. But there was no ruling. It proved nothing and was of no consequence.

On behalf of the defendant, one Phair had testified that the signature to the note was not the defendant’s. In order to discredit this testimony he was asked on cross-examination as to certain statements which he had made to the plaintiff respecting this note. ■And afterwards the plaintiff was allowed-.to contradict Phair’s testimony on this point. The testimony of Phair on his cross-examination was not so collateral that the plaintiff might not contradict it. The admission of the defendant as to the existence of the note was coupled with the assertion that it had been paid. The fact that the note was still in possession of the plaintiff tended to contradict the defendant’s assertion that it liad been paid.

The important question in this case is that which is first discussed in the opinion. The others are of little consequence. And we may add, that under the Iowa statute • referred to, the instrument used for comparison is to be proved to be genuine ” — not proved to the satisfaction of the court. Thus it would seem that the question of genuineness in that State is one for the jury. We cannot, for that reason, give much- weight to Hyde v. Woolfolk (1 Iowa. 159).

An examination of the opinion in that case convinces us that it cannot be taken as a well considered expression of the law. Doubt is therein expressed, whether a writing used for comparison can be proved by the testimony of witnesses, who have only seen the party write, if they have not seen him write that identical paper. And the court, in that case, does not appreciate the reason of the old rule (abolished by the statute under consideration) which forbade the introduction of writings, merely for the purpose of comparison.

The statute allowing comparison of writings is most beneficial. Anyone who has had experience in the trial of questions of disputed handwriting, must have seen the worthlessness of expert testimony. Nothing can be so useful on this class of questions, which are generally perplexing, as to permit an examination with other writings proved to be genuine to the satisfaction of the court. And on this collateral matter we may safely repose a liberal discretion in the trial judge, who sees much from the conduct of the parties that does not appear on appeal papers.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Westbrook, JJ.

Judgment affirmed, with costs.


author: By the Court :

text:
    WILLIAM A. HOUGHKIRK, Administrator, etc., of ELIZA HOUGHKIRK, Deceased, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.

      Negligence — damages occasioned by the death of a child — when the court will not set a verdict aside as excessive.

    This action was brought to recover damages occasioned by the death of the plaintiffs intestate, which was alleged to have been caused by the defendant’s negligence. The deceased was á bright, healthy girl about six years old. She was the only child of a gardener and his wife, both of whom survived her. The jury rendered a verdict of $5,000, . * ■

      Held, that the court would not set it aside as excessive.
    . Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions. The action was brought to recover damages for the death of the plaintiff’s intestate, which was alleged to have been caused by the defendant’s negligence.

      Henry Smith, for the appellant.

      E. Countryman, for the respondent.
   By the Court :

. The only question 'argued before us (although other questions are on the points), is that the damages are excessive.

In Ihl v. Forty Second Street Railroad Company (47 N. Y., 317), a recovery of $1,800 was had by the administrator of a.child about three years old. Thé court say: ;

First. That the absence of proof of special pecuniary damage .would not justify a nonsuit or a direction to. find nominal damages. -Erom that -proposition it follows that damages may. he recovered .without proof-of special pecuniary damages. , •

Second, That, except in. very rare instances, it would be impossible to furnish direct evidence of any specific loss occasioned by the death- of - a child of such tender years.

Third. It cannot be said, as a .ifiatter -of law, that there is no pecuniary damages, or that the expense of maintenance, etc., would exceed the pecuniary advantages to be derived from services.

Fourth. That these calculations are for the jury, and that any evidence on the 'Subject beyond the age and sex of the child, the circumstances and condition of the parents, or-other facts existing at the time of the death or trial, would be speculative and hypothetical and would not aid a jury in coming at a conclusion.

This seems to be a distinct declaration, that this question of damages is for the jury and is to be decided on the evidence lastly mentioned above; and that there can rarely be any evidence of any specific loss. If this be so, we do not see how we can exercise any judgment on the question of excessive damages. By what are we to measure them ? There can be no proof of specific loss. Proof that tlie,expenses of maintenance would probably exceed the value 0+’ the services, belongs to that class of evidence which the court declares to be speculative and hypothetical and not proper. If the damages are to be measured only by the age and sex of the child, the circumstances and condition of the parents, and other facts existing at the time of death, we do not see how it is possible to say that they are excessive.

The court in that case says, that the damages could be reviewed in this court. But the difficulty is, by what test are we to review them ? If it is a matter of guess work, the jury can guess as well as we. If we are to review them by the test of the evidence, then the difficulty is, that there is no direct evidence proving the amount of loss. The facts to which the consideration of the jury is limited by the case cited, would be, in the present case, substantially and in brief; a girl of six years, healthy and bright, only child of a gardener and his wife, both of whom survived. her. Given her death; what is their pecuniary loss ? The jury say $5,000. How, on these facts only, can we say that the amount is excessive? She might have died the next year. Then it would have been large. She might have lived till sixty, supporting her parents by her industry. Then it would have been small. Therefore we suppose the court, in the case cited, spoke of evidence other than that of existing facts as speculative.

The views of the case cited seem to be supported by the cases of Oldfield v. New York and Harlem Railroad Company (14 N. Y., 310); O'Mara v. Hudson, River Railroad Company (38 id., 445); McGovern v. New York Central and Hudson River Railroad Company (67 id., 417), and others. These are later authorities than some which have a different aspect.

Very little benefit is found in the comparison of cases, for the reasons mentioned in Gale v. New York Central and Hudson River Railroad (13 Hun, 1).

If these 'damages were based on proof of what such a child could earn during her minority, or even afterwards, and what was the cost of her maintenance, we could see whether the jury had been governed by the evidence. But it was said in the O’Mara case that the jury acting on their own knowledge, and without proof, can estimate the pecuniary loss. If that be so, then the knowledge of this jury may have satisfied them that the damages were.the amount named in their verdict.

W e have examined the exceptions and find no reason to reverse the judgment.

The judgment and order should be affirmed, with costs.

Present — Learned, P. J., and Bocees, J.; Westbrook, J., not acting.

Judgment and order affirmed, with costs.


text:
    ROBERT C. MARTIN, Respondent, v. JACOB S. RECTOR, Appellant.

      Restitutio#, of possession, of .premises acquired under a judgment ..subsequently reversed — a provision therefor should be contained in the order of reversal — when it will be subsequently inserted therein.

    A judgment recovered by tbe plaintiff in an action of ejectment was reversed by ■ the General Term upon appeal, and a new trial was granted. It did not then appear that the plaintiff had been put into possession under his judgment, and nothing was said in the order of reversal about restitution or restoration of possession. Upon the new trial the defendant recovered a verdict, upon which he entered a judgment for costs, and inserted therein, without any direction from the court, a provision for the restitution of the possession of the premises to him.

      Upon an appeal from an order striking tliis provision from tire judgment:

      Held, that although the' mere verdict for the defendant did not authorize the insertion of. the clause directing restitution, yet, as the General Term would have directed such restitution to be made by their order of reversal, if their attention had then been called to the matter, it was proper now, upon the defendant’s application, to direct such a provision to be inserted in their order of reversal, and to reverse the order appealed from upon the payment of costs.
    Appeal by tbe defendant from an order of the Special Term, modifying a judgment and setting aside an execution, or writ of possession, and directing the sheriff to restore plaintiff to the possession of the premises in question.
    On the original trial of the action (ejectment), oeiore a referee, the plaintiff recovered a judgment for possession for non-payment of rent. By virtue of a writ of possession, the defendant was ejected and the plaintiff was put into possession.
    The defendant appealed, and the General Term reversed the judgment, discharged the referee and ordered a new trial. A new trial was had at circuit, and a verdict rendered for the defendant.
    Thereupon the defendant entered a judgment for costs, duly taxed, and for restitution of possession of the premises from which he had been ejected under the reversed judgment. Upon a writ issued thereupon the defendant was duly restored to possession.

      George W. Miller, for the appellant.

      Samuel Hand, for the respondent.
   Learned, P. J.:

When the' appeal from the first judgment came before us we had no knowledge, from the record, that the plaintiff had been put into possession. Therefore our order of reversal said nothing about restitution, or restoration of possession. It is said in Safford v. Stevens (2 Wend., 158), that, upon the reversal of a judgment, restitution of money collected may be awarded on a suggestion upon the record, supported by affidavit, that, the same had been collected.

In Costar v. Peters (4 Abb. [N. S.], 53), where judgment for the plaintiff in ejectment had been reversed and a new trial granted, it was held proper to include in the reversal an' award, of restitution of the premises. And, it was said that this was a matter of course. (See old Code, § 330.) It would then have been right for this court, on reversing the judgment to grant reétitution, or restoration to possession, had it been made to appear that the plaintiff had enforced his judgment and taken possession. So in Dawley v. Brown (43 How., 17), the plaintiff had recovered judgment in ejectment and had taken possession by writ of execution. After-wards the judgment was set aside and the defendant allowed to defend. Thereupon an order was made that the defendant be restored to possession, which was affirmed by the General Term.

The Revised Statutes provide for a vacating of a judgment in ejectment, on payment of costs. (2 R. S., m. p., 309, § 37.) This is a matter of statutory favor, and not for any error in the trial. Such vacating therefore does not show that the plaintiff has wrongfully recovered his judgment. It leaves the presumption with the plaintiff that his judgment is right, but permits the-defendant as a privilege, to have a new trial. Probably for that reason the subsequent section (41, p. 310) provided that the vacating of any such judgment, as therein provided, should not affect the plaintiff’s possession, if he had taken possession.. But when there should be a new trial, then, if the defendant recovered, he should be entitled to a writ of possession. The subject of new trials for errors, and of the reversal of judgments for errors seems to be left to the ordinary practice of the courts. This is indicated in Huntington v. Forkson (7 Hill, 195). If then the reversal of the judgment and the granting of anew trial would entitle the defendant to be restored to the possession, of which he had been deprived by a writ issued on the judgment, it seems to be still more evident, that when, on the second trial, the defendant has had a verdict and entered judgment, he should be placed where-he was, before the plaintiff removed him from possession. The plaintiff now has no judgment ■ in his favor. The trial of the action has decided the controversy in favor of the defendant. Tet the plaintiff retains the full benefit of a judgment which has been reversed; and retains it after he has been unsuccessful. "What the ground of defense may have been seems to be immaterial. The plaintiff can maintain no rights by virtue of an action in which he has been beaten.

But the plaintiff insists that on this second trial he proved his title, and that he was defeated only because the defendant was not proved to have been in possession at the commencement of the action. But the very language of the charge, on which the plaintiff relies, shows that he proved his title, not against the world, but only against this defendant. Therefore the plaintiff’s position is, that if he brings an action of ejectment against one who is not in possession, and in some way recovers judgment and goes into possession, he shall retain such possession after the judgment has been reversed and a new trial had, on which the defendant has had a verdict and judgment. It seems to us that the question here is one of practice. The defendant, as has been shown by the cases cited, was entitled, as a matter of course, to restoration. The question is, whether he could enter a judgment to that effect without special application to the court. Probably the mere verdict for the defendant did not authorize an order of restoration. The fact that the plaintiff had gone into possession was not in issue on the trial. But upon this fact appearing to the court we have see*n by the cases cited that restoration should be ordered. And the defendant showing this fact, now makes an application that the order of reversal heretofore granted by us shall contain an order to restore the defendant to possession.

We think therefore that the rights of the parties may be properly adjusted by granting this application and reversing the order appealed from, upon payment of costs.

Present — Learned, P. J., Boardman and Bocees, JJ.

Order reversed, without costs, and relief asked for by defendant granted on payment of ten dollars costs.

Order to be settled by Learned, P. J.


text:
    EGBERT GARDNER, Appellant, v. HANNAH E. LANSING, Individually and as Administratrix, and STEHPEN SMITH, Administrator of JOHN G. LANSING, and Others. In the Matter of the Petition of SANFORD NEILSON and Others, Respondents, to be made Parties.

      Simple contract creditors of deceased, — cannot be made parties to an action in which the estate is interested — right of such creditors to maintain an action to set aside an invalid mortgage, after the administrator has refused to do so —1858, chap. 314.
    This action was brought against the administrators and heirs-at-law of John G-. Lansing, deceased, to foreclose a mortgage made by him. Certain persons presented a petition to the court alleging that they were simple contract creditors of the deceased; that the estate was insolvent and that the administrators had applied to the surrogate for leave to sell the real estate of the deceased, which was the only source from which the creditors could be paid; that a large amount had been paid to one of the administrators from the rents and profits of the real estate; that such administrator was insolvent and was acting in collusion with the plaintiff and the other defendants to procure the mortgage to be foreclosed and thereby prevent the creditors of the deceased from receiving anything. They prayed to be made parties defendant, so that they might defend the action by showing that the mortgage was given without consideration, and that it had been paid by the rents received by the widow, the administratrix, since the death of her intestate.

      Reid, that the application should have been denied.

      Queers, as to whether if the administrator should refuse, upon proper request, to disaffirm the mortgage and bring an action, as authorized by chapter 314 of 1858, such an action might be brought by simple contract creditors. (Per Learned, P. J.)
    Appeal from an order made at a Special Term, granting an application made by certain persons to be made parties defendant to the above entitled action. The action was brought to foreclose a mortgage given by one John G. Lansing, deceased.
    Sanford Neilson and other persons, claiming to be creditors of the deceased, applied to the court to be made parties defendant to the action and to be allowed to defend it. The petition alleged, among other things, that the defendant Hannah E. Lansing, the widow of John, had, since his death, received a large amount of the rents and profits of the real estate and had not accounted and did not intend to account for the same to the heirs or creditors of said John G. Lansing, deceased; that the said amounts so received by her are far in excess of any amount due on the said mortgage or to grow due thereon. That the said Hannah E. Lansing is in collusion with the plaintiff in said action, and the other defendants to said action, to have said mortgage foreclosed for its full amount, as appears on the face thereof, and the property sold thereunder, so that.nothing can 'come to the creditors of the said John G. Lansing, by reason of her sale of the premises covered thereby, under and by virtue of an order of the surrogate. That the said Hannah E. Lansing is insolvent. ■

      Geo. B. Lawrence, for the appellant.

      W. B. French, for Sanford Neilson and others, respondents.
   Learned, P. J.:

This < action is brought to foreclose a mortgage made by the deceased intestate, John G. Lansing. Sanford Neilson and others, alleging that they are simple contract creditors of the deceased, that the administratrix and administrator claim that the estate is insolvent; that the administratrix and administrator have applied to the surrogate for a sale of the real estate, and that the real estate is the only source from which the creditors can be paid, now ask to be made parties defendant to this foreclosure, in order that they may set up as a defense, certain facts; viz.: That the mortgage was given without consideration, and that it has been in part paid by rents received by the widow since the death of the deceased. Erom an order granting this relief the plaintiff appeals.

It is not necessary or proper that any person should be made defendants in an action of foreclosure, other than those who have either a title to the land or a lien thereon. They alone have a right to redeem the land from the mortgage; and they alone need to be cut off and barred by the foreclosure. If the mortgagor were living, his simple contract creditors would have no lien on the land; and they would be neither necessary nor proper parties to the foreclosure. Nor have such simple contract creditors any lien on the land, after the death of the mortgagor. (Matthews v. Matthews, 1 Edw. Ch., 565 ; Fonda v. Chapman, 30 Sup. C. N. Y. [23 Hun], 119.) The land passes at once to the heirs or devisees of the deceased. No rights can be acquired but by proceedings against them. The right to enforce debts of the deceased against this land now belonging to the heirs or devisees is not a lien. . If it were, then, on the foreclosure of a mortgage, made by the deceased, these simple contract creditors would be necessary parties.

If the doctrine of the petitioners were correct, it would go much further. Any suit to recover money against an administrator affects, in one way, other creditors. Because it may establish a claim against the fund. On the same reasoning therefore, other creditors of the estate might petition to be made parties defendant to such an action, alleging collusion between the plaintiff and the administrator; and would be entitled thus to come in and defend.

The question here presented is analogous to the question whether a simple contract creditor of a deceased person can bring an action to set aside, as fraudulent, a conveyance made by such person. Whatever doubt may have existed on. this point formerly, it has been settled by Estes v. Wilcox (67 N. Y., 264); Allyn v. Thurston (53 N. Y., 622); Ocean National Bank v. Olcott (46 N. Y., 12). The opinion in Estes v. Wilcox explains the decision in Allyn v. Thurston, which is not reported in full; and shows that the action was brought after the death of the debtor, and that it was admitted that he died insolvent. Now the death and insolvency of the debtor are the facts upon which the court relied in Loomis v. Tifft (16 Barb., 541), and in Spicer v. Ayers (2 T. & C., 624), as the ground of giving relief to a simple contract creditor. Yet the Court of Appeals in Estes v. Wilcox decided that, notwithstanding such death and insolvency, the creditor must have a judgment and execution before he could maintain the action in equity. The same doctrine is recognized in Geery v. Geery (63 N. Y., 252), and is followed in Evans v. Hill (25 Sup. C. N. Y. [18 Hun], 464) and in Adsit v. Sanford (30 Sup. C. N. Y. [23 Hun], 45), affirmed under the title of Adsit v. Butler (87 N. Y., 585). In this last case the demurrer admitted the death and insolvency of the debtor; but it was held that judgment and execution were necessary, before the action could be maintained. The doctrine is again asserted in Southard v. Benner (72 N. Y., 424), by the same judge who had, some twenty-five years before, held the contrary in Loomis v. Tifft (16 Barb., 541.)

It must then be considered as settled that these petitioners, being only simple contract creditors could not maintain an action to set aside this mortgage'’ as fraudulent. They have therefore no right to defend against if.

But it is urged that unless this motion be granted the petitioners are remediless. By no means. The administrator and administratrix may disaffirm and treat as void this mortgage. (Laws 1858, chap. 314; Southard v. Benner, ut supra.) A neglect to discharge their duty in this respect may render them liable to account for the loss and liable to removal.

And here we may remark as to the allegation that the widow and administratrix has received, since the death of the deceased certain rents of the lands which belonged to the deceased, that these creditors have no right to those rents, and no right to claim that such rents should be applied upon the mortgage.

A single point should perhaps be- mentioned. If an administrator, on proper request, should refuse to disaffirm and to bring an action to set aside a mortgage, alleged to be fraudulent, probably creditors, in some cases, might bring such an action, alleging the refusal and making the administrator a party; as was done in Bate v. Graham (11 N. Y., 237). But notice, that in that case the creditor had recovered a judgment. Whether he could have maintained the action as a simple contract creditor we need not decide.

The order should be reversed, with ten dollars costs and printing disbursements, and new trial denied, with ten dollars costs against petitioners.

Present — Learned, P. J., and Westbrook, J.

Order reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: Learned, P. J.: Bocees, J.:

text:
    GEORGE FREDERICKS, as Receiver, etc., of HENRY NIVER, Appellant, v. HENRY NIVER and POLLY NIVER, Respondents.

      Supplementary proceedings — appointment of a receiver — where the order mustíe filed— Old Code, sec. 298 — when a person beneficially interested cam, be compelled to pay the costs — Oode of Oivil Procedure, sec. 3247.
    Section 298 of the old Code provided that whenever a receiver of the property of a judgment-debtor was appointed, the order should he filed in the office of' the clerk of the county where the judgment-roll in the action was filed, and recorded by the clerk in a book to he kept for that purpose. It further provided that, before the receiver should be vested with any real property of such judgment-debtor, a certified copy of saia oruer snouid be filed and recorded in the office of the clerk of the county in which any real estate of such judgment-debtor sought to be affected thereby is situated, and also in the office of the county in which such judgment-debtor resides.

      Meld, that when the judgment-debtor resided and the real estate sought to be affected were situated in the same county in which the judgment-roll was filed, that it was only necessary to have the original order filed and recorded therein, and that it was not necessary to have ■ a certified copy thereof also filed and recorded. (Bocees, J., dissenting.)
    • An order compelling a person to pay costs, as being the person beneficially» interested in the recovery, cannot be made until after a judgment against the plaintiff for the costs has been perfected.
    Appeal from a judgment dismissing the complaint, entered upon an order made at the Columbia Circuit, and from an order made at Special Term, granting costs to the-defendants to be, collected from. Henry L. Miller as the person for whom the action was brought and who was beneficially interested therein.
    The action was brought by the plaintiff as receiver appointed in supplementary proceedings, to have certain real and personal property adjudged to be subject to the judgment obtained by Henry L. Miller against Henry Niver, which property it was alleged had been fraudulently conveyed to Polly Niver. The defendants objected that a certified copy of the order appointing the receiver had not been filed and recorded in pursuance of the statute. (Code of Pro., § 298.)
    The land sought to be affected was situated and the judgment-debtor resided in the county in which the judgment-roll was filed, viz., Columbia county. Tlie order was filed and recorded in that county.

      W. H. Silvernail, for the appellant.

      S. L. Magoun, for the respondents.
   Learned, P. J.:

"We are unable to give-to section 298 of the- old Code the construction put upon it by the learned justice. It requires the filing and recording of the order appointing a receiver in the office of the clerk of the county where the judgment-roll is filed. And it then requires the filing and recording of a certified copy of the order, in.the office of the clerk of the county in which is situated any real estate of the debtor sought to be affected, and also in the office of • the clerk of the county in which the debtor resides, before the receiver shall be vested with any real property.

Now where the real property is situated in the same county in which the debtor resides, it is plain that it could not be necessary to file and record such a certified copy twice. And so when the property is situated in the same county in which the debtor resides, and which is also the same county in which the judgment-roll is filed, the filing and recording of the order once, is all that is needed.

The very words “a certified copy” show that the filing and recording spoken of were to be in some county, other than that in which the judgment-roll is filed and in which the order of appointment is first to be filed and recorded. It would be absurd that a county clerk should certify to himself a copy of an order recorded in his own office, and then file and record a second time that certified copy.

The object is, that the examination of titles shall be facilitated ; that land shall not be affected by the appointment of a receiver, without having the record of such appointment in that very county where the land lies; and, for further protection, that such record shall also be where the debtor resides.

But when the judgment-roll is already in that county and the order has been already filed and recorded there, the end has been accomplished. To give any other construction to the section would be to require a useless ceremony. Such a construction should not be given if possible. It seems to ns that the section, as we construe it, is in harmony with the general system of docketing judgments, under which a certified copy of the docket is sent to any county where the plaintiff desires to have a lien on real estate;

The plaintiff also urges that even in the view taken by the learned justice, the plaintiff should have been allowed to go on with his case in respect to the personal property. This is evidently correct. Probably the learned justice overlooked the fact, that the complaint concerned personal as well as real property.

These views may render it unnecessary to consider the other point raised on this appeal.

But we are of opinion that the motion to compel Miller to pay the costs as a person beneficially interested in the recovery was premature ; in that it was made before the judgment for costs against the plaintiff had been perfected. (Sec. 3247.) This is the more evident as this was an equity action, and it does not appear, that, at the time of making this motion, the court which had tried the case had awarded costs' to any one. (Sec. 3230.)

The judgment must be reversed, and a new trial awarded, costs to abide' event, an'd the order awarding costs against Miller reversed, with ten dollars costs and printing disbursements.

Bocees, J.:

This construction is in direct conflict with the express words of the statute. I think it judicial legislation. It declares what the statute should be, disregarding what it is.

Present — Learned, P. J., Boardman and Bocees, JJ. ■

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