author: LeabNed, R. J.:

text:
    HEZEKIAH W. ENGLISH, Respondent, v. CHARLES J. RUMSEY and ORISTUS H. GREGORY, as Executors, etc., of JOHN RUMSEY, Deceased, Appellants.

      Illegal contract — compounding of a felony — a pwrty cannot recover money deposited to aid in ccorrying out such a contract.

    In an action brought against the plaintiff by one Tichenor,.for poisoning the latter’s sheep, a verdict was rendered in favor of the plaintiff. An indictment against the plaintiff for poisoning the same sheep was then pending. The parties desired to settle the civil action and have a nolle proseguí entered on the indictment, upon the plaintiff paying Tichenor $200. Being informed that such an agreement would be illegal, the sum of $200 was placed by the plaintiff in the hands of one Rumsey, he being instructed to pay the money to either the plaintiff or to Tichenor, as he might be advised by one McGuire, the plaintiff’s attorney, or, according to other evidence, to pay the money to Tichenor, when the plaintiffs attorney came with Tichenor and directed the payment to be made. A nolle prosequi was not entered on the indictment, but a verdict was rendered m favor of the plaintiff.
    The plaintiff having presented a claim for the money against the estate of Rumsey:

      Held, that no recovery could be had until it was shown that Rumsey had been instructed, as required by the terms of the deposit, as to the person to whom the payment was to be made.
    That as the plaintiff to prove his right to recover the money was compelled to establish and claim under the contract of deposit, and as such contract was void, as being made to compound a felony, he could not maintain the action.
    Appeal from an order made at Special Term confirming tbe. report of a referee, to whom, under the statute, a disputed claim against the estate of John Rumsey, deceased, had been referred.
    The plaintiff had been indicted for a felony, in poisoning sheep of one Tichenor. He had also been sued by Tichenor for damages, connected with the same matters. Prior to September, 1881, the civil action had been tried and a verdict rendered in favor of English, the defendant therein. Some steps had been taken to appeal'. In September, 1881, the Court of Sessions was sitting, and the civil action was settled by agreement of the parties on the payment of fifty dollars to the attorney of Tichenor. It was further agreed between English and Tichenor at that time (or more accurately, they wished to agree), that when a nolle prosequi should be entered upon the indictment, English should pay Tichenor $200. But they were informed that to agree to do this would be to agree to compound a felony. Therefore the following arrangement was made: English left the $200 with John Bumsey, since deceased, a banker, and a man of responsibility. No explanation was given to Bumsey of the reason for leaving the money with him. But it was said to him at the time by Mr. McGuire, the counsel of English, in the presence of English and Tichenor, that the money was to be paid to one of these two men, “ I (the counsel) will let you know to which one you will pay it.” And again, Bumsey said: “lam not to pay this money to either of these; you are to let me know to whom it is to be paid,” which remark was assented to.
    English states the agreement thus : That it would be cheaper for him to end it by paying $200; that if the indictment was nolle ;prosequied, Tichenor was to have the money; if not, Tichenor was not to have it.
    Another witness, the attorney of English, states the conversation, at the time of depositing the money with Bumsey: “ I want to leave $200 with you, to be paid to Mr. Tichenor when Elston (English’s attorney) comes here with Tichenor and says, pay it to Tichenor.”
    A nolle jprosequi was not entered on the indictment, but a verdict was finally rendered in favor of English.
    On the part of the defense, it is shown that both the plaintiff and Tichenor have demanded this money of the defendants; that no such amount can be found in the cash book of the deceased ; that there was found in a letter drawer of deceased a memorandum in his hand writing, on a paper in the shape of a strap, such as is put around a bundle of bills, but no bills in it. This memorandum is as follows: “ Two hundred dollar’s, September 30, 1881, to be paid to Tichenor when agreed to by Elston and Tichenor. Left by J. McGuire.”

      George B. Davis, for the appellants

      W. N. Tompldns, for the respondent.
   LeabNed, R. J.:

'Whether we take the statement of Mr. McGuire or of Mr. Elston, the terms on which the money was deposited do not seem to have been complied with, in such a manner as to give the plaintiff a right to it. We are to see what obligation Rumsey assumed; because it is not proved that he knew anything of the arrangement made between the parties beforehand. Mr. McGuire says that he was to let Rumsey know to which one of the two the money was to be paid. There is no evidence that Mr. McGuire ever directed Rumsey to pay it to either of them. And if Rumsey took the money to hold until McGuire told him to which of the two he was to pay, then it is necessary to show that McGuire designated the person, before there' can' be a recovery. Or, again, if we take Elston’s statement, confirmed as it is by the memórandum, then Rumsey took the money solely to pay it to Tichenor when Elston said so. There is no ground on that theoiy for any claim by.the plaintiff, and none by Tichenor till Elston says so.

.It may be that English and Tichenor had previously agreed that the money should be paid to English if a nolle prosequi was not entered. But this action is against Rumsey’s estate, and his estate can be liable only upon the terms yhich he entered into himself. There is nothing to connect him wit'h^ the previous negotiations. So stands the case, without reference to the matter of illegality.

But another question is presented. It is said that this deposit was made for the purpose of carrying out a contract to compound a felony, and therefore English cannot recover it. On the other hand it is said that the defendants cannot set up such illegality. The plaintiff cites several cases in support of this view. (Merritt v. Millard, 4 Keyes, 208.) In that case an illegal contract had been made between Merritt and Brewster, which had been performed by the plaintiff. After its performance Brewster gave to the defendant $500 to pay to the plaintiff, as Brewster had agreed to do. The defendant refused to pay, and the court sustained a recovery. Here the illegal agreement had been performed by both parties — by Brewster and by the plaintiff. It was not necessary to resort to the illegal agreement to determine that the plaintiff was entitled to the money. The same doctrine is incidentally recognized in Woodworth v. Bennett (43 N. Y., 273), where the note was given after the illegal agreement had heen performed.

But these cases differ from the present. "When this money was deposited with Rumsey the illegal agreement had not been performed. The right to this money, (going back now to the arrangement made between English and Tichenor) was to depend upon the performance of the illegal agreement. If English’s testimony is true, and if the money was to be paid back to him in 'case a ■nolle pros, was not entered and was to he paid to Tichenor if it was, then, to establish English’s case, he needs to show that the illegal contract was made, and that he is entitled to the money by its terms. Tlis rights and Tichenor’s depend upon the success, or failure, in doing what Tichenor agreed to attempt.

The test is, says Chitty, whether the plaintiff requires any aid from the illegal transaction to establish his case. (Chitty Cont., 657.) The present plaihtiff, to establish his case, must show the illegal contract, and must show hy its terms his right to this money. It is by virtue of the illegal contract that he claims it. If English and Tichenor had made this agreement to compound the felony, and after the felony had been compounded English had delivered this money to Rumsey to be paid to Tichenor, then the doctrine urged by the plaintiff would apply. Then it would not have been necessary to refer to the illegal contract to establish the rights of Tichenor. But on the contrary, in the present case, the money was not paid after an illegal contract had been performed on the one side. It was deposited to secure the future performance of an illegal contract. The plaintiff might also refer to Norton v. Blinn (22 Am. L. Reg., 783), decided in Ohio. There it was held that when an agent, in the prosecution of an illegal enterprise has received money belonging to his principal, he is bound to pay it over to the principal. But that case is not like the present. Rumsey was not the agent either of English or of Tichenor.' ' He was, as it were, a stakeholder, probably innocent, holding money of which the ultimate destination depended on a contract both malum prohibitum and malum in se.

Nor is this a case where a person has disaffirmed an illegal contract, and on the ground of such disaffirmance has sought to recover back his money. (Morgan v. Groff, 4 Barb., 524.) The plaintiff here does not seek to disaffirm. But be claims under tbe bargain which he alleges; that is, that the money was to be paid to him if a nolle pros, should not be entered. He waits until it is decided that a nolle pros, will not. be entered, and then claims under, not in disaffirmance of, the contract. He has held up before Tichenor 'during all the time prior to the final verdict this offer of $200. And he testifies that Tichenor offered, if the indictment were tried, that he would swear easy.” Evidently, then, English never availed himself of his “ place of repentance.”

And here we may notice a case which has been cited in some authorities (Taylor v. Bowers, L. R., 1 Q. B. D., 291), which seems to us to adopt a rule quite contrary to the law recognized in this State. The plaintiff, an embarrassed debtor, with intent to defraud his creditors, made over his goods to one A. A. after-wards executed a bill of sale to the defendant to pay a debt due from plaintiff to defendant. The plaintiff was allowed to recover back the goods, on the ground that he could repudiate the illegal transaction. We suppose it to be settled in this State that a transfer by a debtor with intent to defraud his creditors is valid as to him, and void only as to creditors. It is only void as to those who are injured thereby, viz., the creditors.

The case of Staples v. Gould (9 N. Y., 520) shows that money paid to secure an illegal contract cannot be recovered back. The case of Bettinger v. Bridenbecker (63 Barb., 395), is also closely analogous to the present, and sustains the defendant’s views.

Another circumstance is worth noting. In the claim which English presented to the executors and verified, he did not allege that the money was deposited for the purpose afterwards stated in his testimony, but that it was deposited to be paid “ in case a certain suit between Hezelciah W. English and Horace H. Tichenor was settledP Thus he evidently evaded the question of compounding a felony.

It is easy to see, even without the explanation given by counsel, the motives of this transaction. It was known that a direct promise to pay and to receive would be a criminal offense. It was intended to make the matter safe, and to secure Tichenor, by putting the money ydiere English could not get it back, and where Tichenor' could have it, whenever the word was given to the innocent depositary. Suppose, then, that English, the next day, had desired to disaffirm his contract with Tichenor, how could he have recovered the money from Rumsey? Rumsey had made an honest and lawful bargain, with no suspicion of illegality, and was bound to that bargain, and to no other. Clearly, then, English could not even, at that time, have recovered from Rumsey, unless it were in some proceeding 'to which Tichenor was also a party, and in which the whole original contract could be passed upon and set aside as illegal.

The findings of the referee do not distinctly show the terms on which Rumsey received the money, as detailed by the testimony.

Ve think, then, that the judgment should be reversed on law and fact, a new trial granted, referee discharged, costs. to abide event.

Present — Lbaened, P. J., and Bocees, J.; Boaedman, J., not acting. .

Judgment reversed on law and fact, new trial granted, referee discharged, costs to abide event.


source: Caselaw Access Project

author: ILeaRned, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE GOLD AND STOCK TELEGRAPH COMPANY, Appellant.

      Taxation — amount to be paid by a telegraph company — Sea. 3 of chap. 471 of 1853' was repealed as to the State tax by chapter 361 of 1881.
    Section 3 of chapter 471 of 1853 provides that every telegraph company, “ using a. line partly within and partly beyond the limits of the State, shall render to the proper officer a true report of the cost to such company of their works within this State; and that the stock of such company, in amount equal to such cost, or the dividends thereof, shall be subject to taxation in the same manner and at the same rate as the stocks or dividends of other companies incorporated by the laws of this State are subject.” ,

      Held, that this act was impliedly repealed, in so far as the taxes to be' raised for State purposes were concerned, by chapter 361 of 1881 and that ia computing the taxes to be. paid by a telegraph company, under the act of 1881, the provisions contained in the act of 1853 were to be disregarded.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit.
    The action was brought to recover a tax alleged to be due under the provisions of section 3 of chapter 361 of 1881.

      Wager Swayne and Matthew Hale, for the appellant.

      D. O’Brien, attorney general, for the people, respondent.
   ILeaRned, P. J.:

The question here involved has recently been examined by Judge Hand, as referee, in the case of the People v. The Western Union Telegraph Company, and a very careful opinion has been written by him. The amounts involved are large, and both these cases will at once be taken to the Court of Appeals for final decision. Nothing is presented but a question of law, and that is only the question, what did the legislature mean ? Or, as the legislature probably had no thought at all on the question raised in this case, being most likely quite ignorant of the existence of the law of 1853, the question is what, under the circumstances, is the fair construction to be .given to the Laws of 1880 and 1881, considering that the law of 1853 has not been expressly repealed ?

It seems to us, for the reasons thus briefly suggested, that it can Lai’dly be worth while to make any elaborate argument in support •of our views. The general rules as to repeal by implication are familiar, and it is needless to cite them. How are they to be applied in the present case ?

The statute on which the question arises is chapter 471, Laws 1853, section 3: “ Every such company owning or using a line •of electric telegraph partly within and partly beyond the limits of this State, shall render to the proper officer a true report of the •cost to such company of their works within this State; and the stock •of such company, in amount equal to such cost, or the dividends thereof, shall be subject to taxation in the same manner and at the •same rate as the stocks or dividends of other companies incorporated by the laws of this State are subject.” Observe the words, “ shall render to the proper officer,” indicating that there was at the time a proper officer to whom the report was to be rendered, and by whom the stock, “ in amount equal to such cost,” was to be assessed at that amount.

And the meaning of this provision is seen on looking at 1 Revised Statutes (m. p. 414), section 2, which requires a statement from every corporation to the assessor of the town or ward specifying certain things. The statute above referred to modified or added to the requirement.

Turning now to chapter 654 of the Laws of 1853, we find an act amending the general tax law as to corporations, at 1 Revised Statutes (m. p. 415), section 6 and m. p. 416, sections 9 and 10. This-amendment changed the law so that corporations were taxed on their capital and on their surplus fund exceeding ten per cent, after deducting, etc. And if the corporation had not made five per cent on its capital, it could commute for five per cent on its net profits, excepting as to real estate.

Chapter 471, then, above cited, modified this general law in the case of a telegraph company owning or using a line partly within and partly without the State, by limiting the taxation to the costs of the works within the State and the dividends thereof. Probably the reason was that the telegraph poles and wires might possibly be considered real estate in other States, and might, therefore, be taxed as such there. The modification, then, was in harmony with the general tax law in respect to corporations, which excepted from the tax imposed on corporations at their principal office the real estate belonging to them, even within the State, and which imposed the tax on the real estate in the town where it lay. (1 R. S., m. p. 389, § 6.) And we can easily see that the statute in question' was consistent with the schemes of taxation then in force, under which there was levied on corporations, as on natural persons, taxes for State, county and town or city purposes.

This system continued until the passage of chapter 542, Laws of 1880, amended by chapter 361, Laws of 1881. This statute was declared to be: To provide for raising taxes for the use of the State.” But section 8 of the act of 1880 declared that while their real estate should continue to be assessed and taxed, the capital and personal property of these corporations should thereafter be exempt from assessment or taxation except as in the act prescribed. This shows that the previously existing system, to which the act of 1853 so appropriately applied, ceased to be in force as to these corporations. It is true that the act of 1881 modified this section 8, and left these corporations liable to taxation as before for other than for State purposes.

The law of 1881 further modified the law of 1880 by inserting in section 3 the words “ as a tax upon its corporate • franchise or business.” These words indicate what is plain from the whole language of the act, that as to State purposes the statute establishes a new system; new in all its plan and detail. Unless there be some imperative reason growing out of the language, we ought not to road into this new system any of the provisions of the old.

But it is argued, and we must admit with force, that the act of 1853 is a general provision applicable to any system which may be established unless specially repealed; that that act makes only the cost of the works within the State “ subject to taxation in the same manner and at the same rate as the stocks,”'etc.; that for this reason it is only that cost which is to be taxed under the scheme of taxation of 1881.

Now it is plain that the law of 1853 was passed when the old system (as we may call it) was in force for all taxation. It was intended at the time of its passage to apply to and affect laws then in force. And the real question here is whether this new system in regard to taxation for State purposes is one so different in its plan, in its name and its object, that it is not reasonable to think that the exception made by the law of 1853 was intended to apply. It seems to us that this is a matter to be determined from the whole general scope of the statute. The legislature have chosen to call this new system a tax on franchise or business.

Perhaps the phrase, if analyzed, may seem to make a distinction without a difference. But at any rate,' in the consideration of the present question, the words are useful to show the intent to make a new plan, wholly separate from, and independent of, the provisions of the old system.

It is argued that the law of 1853, in speaking of a tax upon stock, ■ was a tax upon certain values represented by the stock, and that the tax on a franchise or business is still a tax upon vahees, and hence a tax similar to the tax' on stock; The question before us, however, has nothing to do with the inquiry, what is the lawful or constitutional subject of taxation; or with any inquiry of a similar character. On tbe contrary, the question is only whether the act of 1881 shows that it was not restricted by the act of 1853. And, as we have before stated, that question is best solved by seeing whether the new scheme is not so different from the old that the act of 1853, passed when the old was in force and intended to be applicable to the old, is reasonably to be held to apply to the new.

It is hardly to be thought that the legislature which passed the act of 1881 had it specially in mind that the act .of 1853 should apply. If they had such a design in view we might justly suppose that, in sections 1 and 3, express and unmistakable language would have been used, making the exception in respect to telegraph companies which the defendants claim.

A general repeal of the act of 1853 would have taken away its benefits from the companies in respect to taxation other than for State purposes. Properly then it remains on the statute book, still applicable, as it would seem, in respect tó taxation for county and town purposes, but wholly inapplicable to the new system of raising money for the purposes of the State.

The defendants urge the doctrine that a general law does not, by implication, repeal a prior special law, and they cite as a late decision McKenna v. Edmundstone (91 N. Y., 231). It will be observed that, in the opinion of the court, it is said that a special and local law will not be thus deemed to be repealed. And it is, further said that this comes 'under the larger rule of inconsistency or repugnancy or clear intention. Now the present case is not one where the question is of repeal, but of application,. Admitting, as above suggested, that so far as taxation for county and town purposes is concerned, the act of 1853 is in force, the question is whether it applies or was intended to apply to the system established by the acts of 1880' and 1881. Is it not plain that the scheme therein adopted was to be uniform in its application to all corporations named ? We think it would be inconsistent to construe the scheme so as to make the exception for telegraph companies, which the defendants claim.

Another question raised is that interest cannot be recovered. Under the ordinary mode for the collection of taxes prescribed by the Revised Statutes, the collector (or, as it may be in cities, the marshal) is an officer empowered to enforce the payment by levy, on distress and sale, as the language sometimes is. The collector is to call and demand payment. The amount which the officer is then empowered to collect by levy is specified by statute; being sometimes the tax with twelve per cent interest; sometimes the tax with five per cent fees, etc. And we need not contest the argument of the defendant that the collector can enforce only such amount as is specially stated in the statute. But the present statute is quite- different. Section 4-of the act of 1881 malees it the duty of the corporation to transmit the amount of the tax to the treasury within fifteen days after the first of January. Thus an affirmative duty of payment at a certain timp is imposed. Then section 9 authorizes an action for the tax thus required to be paid. Thus the statute imposes an obligation to pay at a certain time and gives an action for the non-payment. This is quife different from the case of ordinary taxes where the tax is assessed and the process to collect is at once issued; or (in the case of some cities) issued after a certain time allowed for payment. The question here is not how much a collector of taxes may collect under his warrant. The question is, what obligation or liability has the statute imposed on the corporation to be performed in respect to the State? The statute says the corporation shall pay so much money on such a day ; and, if it does not, the State may sue. ¥e see no reason why that obligation to pay on a certain day should not, like other obligations to pay money carry interest for non-payment. The ten per cent penalty imposed by section 3 applies to a failure to furnish the report as well as to a failure to pay, and is to .be collected with the tax. No interest is recovered on the penalty. We do not think that this penalty takes the place of, or deprives the State of, interest on the tax.

For the reasons thus given, and for those very fully set forth in the opinion of Judge Hand,. the judgment is affirmed, with costs.

Present — Learned, P. J., BocKes and Boabdman, JJ.

Judgment affirmed, with costs.


author: LeaeNed, P. J.:

text:
    JACOB CROUNSE v. THE SYRACUSE, CHENANGO AND NEW YORK RAILROAD COMPANY and Others, Respondents. GEORGE N. CROUNSE and FRANKLIN WALRATH, Appellants.

      Undertaking given upon procuring an injunction — what expenses incurred in procuring its dissolution may be allowed as a pa/rt of the damages — it is sufficient if the expenses be actually incurred, they need not have been paid.

    From January, 1879, to May, 1888, the defendant, a railroad company, was in the hands of a receiver, and for more than two years it had had no board of directors. The General Term of the Supreme Court had held that the property could not he taken from the hands of the receiver until a hoard of directors was elected, and that a board could only he elected on the day fixed by the by-laws for an annual election, which was May 4, 1883. On that day, pursuant to notice, a meeting of the stockholders was held, at which $76,000 out of $80,000 of the stock was represented. Immediately after the meeting was organized, an injunction, forbidding an election, was served. .The injunction had been granted the day before by the county judge. This injunction could only be vacated, without notice, by the officer who granted it, or by the General Term of the Supreme Court which was then sitting at Binghamton. As there was no regular train by which the defendant’s counsel could then reach Binghamton on that day, a special train was hired by which the counsel was taken to that place, where the injunction was immediately vacated. The election was held, and on May seventh the action was discontinued by the plaintiff.
    Upon a reference to ascertain the damages sustained by the injunction :

      Held, that the amount paid to the railroad company for the extra train, $200, was propérly allowed as .part of the damages sustained.
    The defendants had incurred a liability to the amount of $375'to its counsel, for services rendered in procuring the dissolution of the injunction.

      Held, that it was proper to allow that sum as a part of the damages, although it had not been actually paid out by the defendant at the time of the reference.
    Appeal from an order made at a Special Term, confirming the report of a referee appointed to ascertain the damages sustained by an injunction granted herein.

      Charles M. Platt, for the appellants.

      Louis Marshall, for the respondent.
   LeaeNed, P. J.:

This is an appeal from an order confirming the report of a referee, appointed on application of defendants for an assessment of the damages, sustained by them by reason of an injunction.

The circumstances under which the injunction was granted are peculiar. The Syracuse, Chenango and New York Railroad Company had been in the hands of a receiver from January, 1879, to May, 1883, and for two years it had had no board of directors. It had been held by the- General Term, that, until a board of directors should be elected, no order could be made to restore the property to their control and to discharge the receiver. It was thought that nothing could be done, except to wait until the day fixed by the bylaws for an annual election, and then to hold the same; and that at no other time, under the existing circumstances, could an election be had. The day thus fixed was May I, 1883. On that day, pursuant to notice, a meeting was had of the stockholders, at which some $76,000 out of $80,000 of stock was represented. The meeting was organized at ten a. m. ; and immediately thereafter the injunction in question was served on the stockholders present, forbidding an election. It had been granted by the county judge of Madison county, the previous day.

At this time the General Term of the Third Department was in session at Binghamton. It was decided by the counsel for the defendants to apply at once to that court for a dissolution of the injunction, under section 626 of the Code. That was the only court or officer that could vacate, without notice, except the said county judge. There was no regular train by which Binghamton could be reached that day. The defendants procured a special train, and their counsel' went to Binghamton. The injunction was at once vacated by the General Term, and the election took place on the said fourth of May.. Thereupon the plaintiff, on the seventh of May, discontinued the action. The actual cost and value of the special train was $200, which was paid by defendants to the railroad company which furnished the train. And the referee has allowed that amount. We think that this was right.

The undertaking is to pay defendants such damages as they may sustain by reason of the injunction. The rules, as to the amount of damages which can be recovered, are stated in Hovey v. Rubber Tip Pencil Company (50 N. Y., 335); Andrews v. Glenville W. Company (Id., 282); Roberts v. White (13 N. Y., 375); and we need not repeat them. The question whether the defendants were justified in incurring this unusual expense must depend on the circumstances of the case. Undoubtedly, in an ordinary case, a defendant can, with little, or no, disadvantage, wait for the usual trains. Bat this case was extraordinary. Unless an election were held that day it was probable (perhaps certain) that none could be held for a year; and therefore no step could be taken for a year to restore the company. Yery large interests were at stake, and a large amount of .stock was represented at the pending election. It was important that an injunction, thus suddenly sprung upon the defendants, should be at once removed, and that they should be allowed to elect their directors and manage their own affairs. It is not for the plaintiff, whose very questionable act made that application to the General Term necessary, now to criticize the expenditure to which the defendants were put. It seems to us to have been reasonable and proper. The referee also allows $315 counsel fees on procuring the dissolution of the injunction. No point is made as to the reasonableness of the amount. Nor is it disputed that the amount has been incurred. But the plaintiff insists that it cannot be allowed until it has actually been paid.

Perhaps in this State this question may not have been distinctly decided, except in the case cited below; but language has been used in two or three instances showing the views of the Court of Appeals. Thus in Andrews v. Glenville W. Company (ut stipra, at p. 286), it is said that the party “ is entitled to his expenses reasonably incurred.” And again, at page 287: Expenses properly incurred on the part of the defendant for the purpose of dissolving an injunction were legally allowable as damagesAgain, in Hovey v. Rubber Tip Pencil Company (ut supra, at p. 337): “A party is entitled to damages not only for all expenses which he has incurred for fees and for legal services in removing the temporary injunction,” etc. So in Packer v. Nevin (67 N. Y., 550, at page 533) there is a remark to a similar effect showing that a charge incurred, as well as a fee paid, should be allowed.

To incur is to become liable to, not necessarily'to have paid. The case of Wilde v. Joel (15 How. Pr., 320), in General Term, Superior Court, sustained the defendant’s views. See, also, to the same point, Noble v. Arnold (23 Ohio, 264); High on Injunction, § 1688; Underhill v. Spencer (26 Kan., 71).

Of course the distinction is familiar between a mere indemnity against damages and an indemnity against liability. (See National Bank v. Bigler, 83 N. Y., 51.) But probably the cases in regard to indemnities, strictly so called, are hardly applicable. The parties to the undertaking, by its terms, do not agree to indemnify, but to pay such damages as the defendant may sustain. Nor is the undertaking given to protect the defendant against the acts of some third person, or against some consequence of the defendant’s own acts; as is often the case in bonds of indemnity. The undertaking is to protect the defendant against acts of the plaintilf which may prove to have been unjustifiable. There is every reason, therefore, for giving a construction to the undertaking which shall protect the defendant against damages incurred, if caused by the plaintiff's unjustifiable act. The defendant should be made secure, and should not merely be indemnified. This seems to us the just construction to be put upon this contract, considering its language and its purpose. It is the construction, as above shown, held in the Superior Court in one text-book, and in two sister States.

These are the only questions presented by the appellants.

The order should be affirmed, with ten dollars costs and printing disbursements.

Present — LeabNed, P. J., and BoakdmaN, J.; Bocees, J., not acting.

Order affirmed, with ten dollars costs and printing disbursements.


author: Leaened, P. J.:

text:
    ELIZABETH SMITH, Respondent, v. EDWARD H. NEWELL, Appellant.

      General assignment — failure of the assignee to file the bond — 1877, chap. 466, does not operate retrospectively — right of the assignee to make a lease — ratification of an invadid agreement made by an assignee.

    ■May 9,1877, one Smith made a general assignment for the benefit of his creditors, which was recorded the next day. The bond of the assignee was filed on August third, and an inventory was made on August second and filed on August third. May eleventh, by a sealed instrument, the assignee leased the farm to the plaintiff, the assignor’s wife, for the term of six months for $200. The plaintiff and her husband worked the farm and cut the hay. On August first and August seventeenth the hay was levied upon by the sheriff under executions against the husband as being his property.
    In this action brought by the wife to recover the damages thereby sustained:

      Held, that the failure of the assignee to file the bond as required by chapter 466 of 1877, did not invalidate the assignment, as that act did not take effect until June 16, 1877, and had no retroactive effect.
    That even if the assignee had no right to make the lease, yet as the plaintiff had . entered under it and paid the rent she was entitled to the hay until the whole agreement should be rescinded.
    That the recognition of the lease by the assignee after he had filed his bond, and his allowing the plaintiff to continue in possession and incur the expense of cultivating and harvesting, and his finally accepting the rent, operated as a ratification of the lease.
    General Rule No. 34 directing that on appeal the evidence shall not he given by question and answer, and that the exhibits shall not be printed, at length, should be observed.
    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 the minutes of the justice before whom the action was tried.

      F. R. Gilbert, for the appellant.

      W. H. Johnson, for the respondent.
   Leaened, P. J.:

Action for the alleged wrongful taking of twenty tons of hay from plaintiff’s possession, being her property, and for its conversion to defendant’s use. Defense: that the bay, at the time of taking, belonged to David B. Smith, plaintiff’s husband; was levied upon under executions, against him, and sold by the officer to defendant, by virtue of such executions.

David B. Smith, owning a certain farm, made a general assignment for the benefit of creditors May 9, 1877, recorded May tenth. No-bond was filed by the assignee until August 3, 1877. An inventory was made August 2, 1877, and filed August third. There is however attached to the assignment a schedule of the assignee’s property and a schedule of his debts.

May 11,1877, the assignee, by a writing under séal, leased the farm to plaintiff, for six months, for $200. She with her said husband continued on the farm and worked it and cut the hay. The officer levied upon the hay; part of it the first, and part the seventeenth of August. Though it is said that the hay now in controversy was that taken by the second levy.

One question raised on the trial was whether the assignment was made with intent to defraud the creditors of David B. Smith. That was submitted to the jury and their verdict has settled the question. There remain for us only the questions of law.

Chapter 466, Laws of 1877, took effect .Tune 16, 1877, after the execution of this assignment. Section 28 says that the act is not to effect any proceedings had. Even without that section, the statute should not receive a retroactive effect, so as to make void an assignment which had been valid under the law when it was executed. Turning then to chapter 348 of Laws of 1860, as amended by chapter 56, Laws of 1875, we find that there is nothing declaring that the neglect to make the inventory or to file the bond, shall make the assignment void. The statute only says that the bond must be given before the assignee can sell, dispose of or convert the property. Before, then, the statute of 1877 had taken effect, the assignee had executed the lease under which the plaintiff claims.

The defendant insists in the first place that the assignee had no right under any circumstances to lease the land; that his sole duty was to sell; a right to lease would authorize a hindering of creditors. Grant this to be so, and grant that the lease for six months might, be,revoked by the assignee or attacked by creditors; still we have tl}e fact, that by the assignee’s agreement, the plaintiff went on the premises to work the farm and that, as she says, she paid him the rent agreed therefor. The payment of the rent then would entitle her to the crops; at least until the whole contract was rescinded. And in that case it would seem that she should be repaid the amount she had paid for rent. So far as the crops are concerned, it might be said that the assignee sold them to the plaintiff for $200.

The next point is that the assignee could, not make a valid lease or even a sale of the crops, because at the time he had not filed his bond. (Brennan v. Willson, 71 N. Y., 502.) Now it seems to us that the opinion of the learned justice who tried this case, given on a motion for a new trial, is quite conclusive. As he says, on the third of August, the assignee gave the required bond. And after that he continued to recognize as valid the lease he had executed, allowed the plaintiff to continue in possession, to incur the expense of cultivating and harvesting and finally received the rent. This, the learned justice says, must be considered a ratification of the rights which the assignee had sought to give by the lease of May eleventh.

This seems to us to be sound. If the assignee had agreed with the plaintiff in May that she might have the crops if she would cultivate and harvest them, and she had gone on to do this, in good faith, then when it was discovered that the agreement had been premature, it would be right and proper for him, when he had obtained power to deal with the property, to ratify his previous agreement. Any other course would have been a fraud upon the plaintiff.

Another point raised by the defendant relates to the former recovery against Tyler. That involved simply a question of fact, and as such, was left to the jury; that is, whether the hay now in controversy was the same with that for which a recovery had been had, or whether it was other hay, and if other, how much. The complaint claimed twenty tons. The jury seem to have found about nine. As the learned justice said in his charge, the evidence is not as certain as might be wished. But there is not, we think, any question of law for us to review.

We may here express our wish that the-appellant had observed Buie 34, which directs that the evidence shall not be given by question and answer, and that exhibits shall not be printed at length. In the present instance the expense, of course, falls on the appellant; but none the less the inconvenience on the court.

The judgment is affirmed, with costs.

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

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
      JANE VAN HORNE, Appellant, v. JACOB FRANCE, Respondent.

      Substitution — when one of several devisees may be substituted by fíie General Term as plaintiff in an action of ejectment, upon the death of-the testator, during the pen. dency of the appeal.

    On March 24, 1881, pending an appeal from a judgment in favor of the defendant in an action of ejectment, and from an order denying a motion for anew trial therein, the plaintiff died leaving as her heirs-at-law, a son, a daughter, and four children of a deceased daughter, all of them being of full age. She appointed her son the executor of her will and devised to him and her daughter all her real and personal estate, except one article of the latter. In January, 1882, the defendant procured from the General Term an order returnable there at the September term, requiring the heirs and devisees to show cause why the judgment and order should not be affirmed. Upon the return day none of the heirs or devisees except the son appeared. He showed that an unsuccessful attempt had been made to have himself and sister substituted as plaintiffs, claimed to be entitled to an undivided half of the property under a contract made with the deceased testatrix, and sought to be substituted as plaintiff in the action. The sister declined to assert any claim to the property.

      Held, that in so far as the rights of the son to the undivided share claimed under the contract with the testatrix were concerned, they could not be considered upon the motion.
    That as the sister did not apply for substitution the judgment and order should be affirmed as to her undivided half of the property.
    That as to the other undivided half the son should be substituted as plaintiff upon payment of costs and disbursements.

      MotioN for an order affirming a judgment in favor of the defendant and for an order denying a motion for a new trial, brought on by an order to show cause.

      F. Fish, for the appellant.

      Daniel Yost, for the respondent.

         JANE VAN HORNE, Respondent, v. WILLIAM CAMPBELL and Others, Appellants.
      Learned, P. J. :
      This case is similar to the preceding. It is an action of ejectment. A trial was had and a verdict recovered for the plaintiff for one-quarter of the land. The defendant paid the costs and had a second trial before the court without a jury. A decision was rendered December 36, 1878, for the recovery of the land and $103 for the rents and profits. Judgment was perfected April 32, 1879, for the recovery of the land, the rents and profits and the costs. An appeal was taken by the defendants November 13, 1879, which is still pending. In other respects the facts are like those in the former case.

        * Decided May term, 1883.

        The defendants now move on the same proceedings as in the former case under section 1298, that the judgment be reversed. The plaintiff’s successor asks, as before, for substitution.
      We think that the neglect of the plaintiff’s successor to obtain substitution, pending the six months, does not prevent us from granting it now. Possibly, as said in Brokaw v. Brokaw (5 Week. Dig., 267), the order might have been returnable at Special Term. But we have jurisdiction.
      The defendants urge, in addition to what was said in the other case, that if Giles H. P. Van Horne be substituted in the judgment and the judgment should then be affirmed ou argument, he would have a recovery for the whole property, while he is devisee of only one undivided half, and Mrs. Bell does not make any claim to the other. Further, the defendants say that, as to his rights under the contract, they have not been heard and cannot be precluded.
      As we said before, his rights under the contract are not here to be considered. The question is where has the title gone, by reason of the death of Jane Van Horne. Plainly it has gone, one-half to him and one-half to Catalina Bell. The equities under the contract are probably the same as they were before the death, and are not affected by the death. This is not the place to try them.
      ()ne undivided half then has fallen by will to him.. If he has any contract which entitles him to a half of Catalina Bell’s share, he must look to her for his remedy on the contract.
      The counsel for Mr. Van Horne asks that Catalina Bell be made a party defendant if not plaintiff. (Code Civil Pro., 448.) But that would not be proper. Her rights and his are entirely separate. She is not united in interest with him. If Mrs. Van Horne had devised one divided half of the land to him and t'he other to Catalina Bell, clearly each could have sued for his or her separate share. So it is, although the interests are undivided. They are not joint. Catalina Bell can release her claim without affecting the title which Mr. Van Horne has acquired by. the will.
      We think, therefore, as in the other case, that the judgment must be reversed as to the undivided half of the land which came to Catalina Bell by the will, and as to one-half of the rents and profits. 'Then the judgment being reversed and Mrs. Bell refusing to substitute herself, the action as to that undivided half must abate. (Sec. 761.)
      As to the other undivided half which came by will to Mr. Van Horne, he must be substituted as plaintiff upon the same terms as stated in the previous case.

   Learned, P. J.:

This is an action of ejectment, in which a verdict was rendered for the defendant October 5, 1875, and a judgment thereon perfected November 29, 1875. An appeal was taken in November, 1875, from that judgment, and from an order denying a new trial. About March 24, 1881, the plaintiff died, the appeal not having been heard, leaving heirs — a son, a daughter, and four children of a deceased daughter — all of full age. The deceased left a will, which has been proved and recorded as a will of real and personal estate, her son, Giles H. P. Yan Home, being named as sole executor. By that will, with the exception of one article of personal estate, she left all her real and personal estate to her son Giles, and her daughter Catalina Bell.

Giles H. P. Yan Horne also claims to be the owner of the undivided half of said premises, by virtue of a contract made with Jane Van Horne in her lifetime.

On an affidavit stating the foregoing matters, -the defendant obtained an order at General Term, January 26, 1882, under section 1298, Code of Civil Procedure, requiring these heirs and devisees of the deceased to show cause, at the General Term, to be held in September, 1882, why the judgment and order denying a new trial should not be affirmed, and directing the mode of giving notice. On the return day of that order proof was made of its service as required, and also proof that no parties had been substituted. And.the defendant moved that the judgment and order be affirmed.

In opposition, Giles H. F. Van ITorne appeared by counsel, and no other one of the heirs or devisees appeared. He produced an affidavit and a notice of motion to substitute himself as plaintiff and Catalina Pell as plaintiff or defendant, in the place of Jane Van Horne, deceased, with proof of service of the same on Catalina Pell, and on the four other heirs above referred to. The affidavit, after'setting forth the proceedings in the case, as above mentioned, and an unsuccessful attempt by him to procure substitution of himself and Catalina Pell, alleges that the will of Jane Van Horne devises the property to him and Catalina in equal parts, and that he is also the owner of an undivided half of the premises, by virtue of a contract in writing made by Jane Van Horne in her lifetime.

The defendant now insists that, as the substitution was not made before the return day, the judgment should be affirmed. The plaintiff urges that the substitution should now be made.

The defendant further objects to this that Mrs. Bell declines to assert any claim ; that under the will Giles H. F. Van Horne has only one-half of the estate which Mrs. Van Horne had; that, if he claims under the contract with Mrs. Van Horne, the defendant has had no opportunity to try the validity of that contract.

■ Now, with the alleged interest of Giles H. F. Van Home under his contract we have nothing to do. All that we have to look to is the substitution of the person or persons who, by the death of Jane Van Horne, succeeded. Giles H. F. Van Horne did not succeed by the death of Jane Van Horne to the alleged rights under his contract, and the party defendant is not to be embarrassed by that. For aught that appears the alleged contract was made before the action was commenced. And it is not alleged that it was a transfer of the title.

If the judgment should be reversed and a new trial granted, of course on such new trial Giles H. F. Van Horne will have to prove his legal title; and apparently this contract shows no legal title whatever.

Catalina Bell does not desire to litigate the action further. Therefore the judgment and order must stand affirmed as to the undivided half of the premises devised to her by the will.

As to the other undivided half devised to Giles H. F. Van Home, he must be substituted on terms. He was guilty of laches in not moving for substitution at an early day. He should pay ten dollars costs of .motion in January term, ten dollars costs September term, and the necessary expenses of serving papers on the heirs, to be adjusted by the clerk of Montgomery county. Unless the costs and disbursements are'paid within five days after adjustment and notice to him or to his attorney, the judgment and order to be affirmed, also as to him and his share.

Present — LearNed, P. J., Bocees and WestbrooK, JJ.

Judgment affirmed, with costs.


author: EooKes, J.: Learned, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. H. DELOS JOHNSON, Respondent, v. THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF WHITNEY’S POINT, Appellants.

      'Village — proceedings for laying out streets — the provisions of the statute must it strictly complied with — 1870, chap. 291, tit. 7, sec. 1 —application for a mandamus to compel the levying of a tax — a clear right must he established hy the relator.

    Section 1 of title 7 of chapter 291 of 1870, providing for the incorporation of villages, authorizes the board of trustees to lay out and open streets, but directs that no street shall be laid out or opened unless all claims for damages on account thereof shall be released without remuneration, “ except on the written petition of at least ten freeholders residing in said village, which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and shall be filed in the office of the clerk of the village.” A petition for the opening of a street in a village was presented to the board of trustees thereof, which described accurately and specifically the land to be taken. Included within the area so described was a strip of land one rod wide and two rods long belonging to one Seymour. Seymour was not named as one of the owners in the petition.

      Held, that the failure to insert his name in the petition deprived the board of all jurisdiction over the subject matter of the petition.
    That the fact that Seymour’s land was not intended to be included in the area described in the petition did not affect the question.
    The said section provides that on the presentation of the petition the trustees shall meet and examine the same, “and if they decide the improvement shall be made, they shall so decide by resolution to be entered in the minutes of the board. ” Upon the presentation of the petition above referred to it appeared from the minutes that it was “ moved that the improvement asked for in the said petition be made. Motion carried, all voting aye. ”

      Held, that this was not a compliance with the provisions of the act requiring the decision of the board to be expressed “by resolution.” (Learned, P. J., doubting as to this.)
    The act required a copy of a notice of hearing before the board to be served on the owner or owners of the land described in the petition.

      Held, that the failure to serve a notice upon Seymour invalidated all the subse quent proceedings.
    The proceedings instituted upon the said petition resulted in the laying out of the street. The damages of the relator were assessed by a jury impanneled , for that purpose, and subsequently increased by the commissioners appointed by the county judge. The village, by its officers, took part in all these proceedings. Upon an application for a mandamus to compel the defendants to levy a tax to raise the money to pay the amount oí the damages awarded to the relator:

      Held, that the part that the defendant had taken in the proceedings for opening ' the. street did not estop it from claiming that all the proceedings were void for want of jurisdiction.
    The act provides that after a hearing has been had “the trustees 'may deny the petition, or approve and declare by resolution to he entered in their minutes, their intention to make the said improvement.”

      Held, that the trustees must either reject the petition or direct ’ the improvement to he made just as described in the petition; that they could not change the line of the road in any particular, however small, although no one was harmed thereby.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbe proceeding was instituted to compel tbe defendant to levy and collect a tax to pay the damages awarded to tbe relator for tbe opening of a street through land belonging to him. Tbe proceedings for opening tbe, street were instituted-under section 1 of title 7 of chapter 291 of 1870, an act for tbe incorporation of villages, which provides, among other things, that the board of trustees “ shall have all the powers of commissioners of highways of towns in this State, subject to this act, and, as such, they shall have power to discontinue, lay out, open, widen, alter, change the grade or otherwise improve roads, avenues, streets, * * * but no road, avenue, street, lane or sidewalk shall be opened or altered, unless all claims for damages on account of such opening or altering, shall be released without remuneration, except on the written petition of at least ten freeholders residing in said village, which petition shall specify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known, and shall be filed in the office of the clerk of the village. On the presentation of such petition the trustees shall and must meet and examine the same; and, if they decide the improvement shall be made, they shall so decide by resolution, to be entered in the minutes of the board” ; it also provides for giving notice to the owners of the land of the petition, and of the time and place at which they might appear and be heard.- It further directs, that after such hearing “ the trustees may deny the petition or approve and declare by resolution, to be entered in their minutes, their intention to make the said improvements, and proceed to obtain possession of the land.” The relator claimed under an assignment of an award of damages made to Jabez Johnson for the laying out of the street through his (Jabez Johnson’s) land.

      Chapman <& Lyon, for the appellants. *

      ’William J. Montanye, for the respondent.
   EooKes, J.:

This is an appeal from a judgment in favor of the relator, entered on the report of a referee, directing a peremptory writ of mandamus to issue to the defendants, commanding them to make an assessment and levy a tax upon the taxable property and inhabitants of the village of Whitney’s Point, for the sum of $1,198.39 (with interest and costs), for damages awarded to Jabez Johnson, because of the laying out of a public street through his lands, which award had been, before the mandamus proceedings were instituted, assigned to the relator.

The village was incorporated under the general act for the incorporation of villages, passed in 1870 (chap. 291), and the proceedings to lay out and open the street were taken in 1875, under the provisions of that act. • These proceedings resulted in the laying out of the street by the trustees of the village, by resolution entered in the village records, in which resolution the street was particularly described by metes and bounds. Damages - for the land taken for the street, owned by Jabéz Johnson, were first assessed by a jury impanneled for that purpose, at $163, which, on appeal by him, were increased by the commissioners having the matter in charge under appointment by the county judge,, to the sum of $1,198.38. The corporation, by its officers, took part in all. the proceedings to, and including, the hearing before the commissioners who made the reassessment of damages,. and made, or caused to be made, a record of their action. It is claimed that the street, as laid out, was accepted and used and occupied as a public street by the village authorities, under and in pursuance of the order laying it out; but the referee does not so find specifically, nor would the proof support such finding. The fact seems to be that the public had been accustomed, to some extent at least, to pass and repass along the general line of the way for a considerable time prior to the taking of tbe proceedings to lay out the street, and such use was continued thereafter substantially the same as before. The street, however, was never graded or worked by the corporate authorities with a view to its adaptation or appropriation to use as a public highway, under or by virtue of the proceedings for laying it out.

It was insisted on the trial before the referee, and it is now urged on this appeal, that the proceeding to lay out the street was without .jurisdiction and void,' because of fatal informality in its inception, and void because of omissions of statutory requirements necessary to the preservation of jurisdiction in its continuance.

The proceeding here brought under examination being entirely statutory, can be maintained only on a substantial observance of the provisions of the law under which it was taken. Any omission in that regard will .be fatal to jurisdiction. Thus it was laid down in Merritt v. Village of Portchester (71 N. Y., 309) that in a case like the present, any departure in substance from the formula prescribed by the statute vitiates the proceedings under it; and further, that what the legislature has directed to be done in such cases the courts cannot declare immaterial. (See, also, Matter of S. Ave. M. E. Church, 66 N. Y., 395; Matter of City of Buffalo, 78 id., 362, and Brevoort v. Brooklyn, 89 id., 128.) So, too, a proceeding may be challenged for a want of jurisdiction, at any time, by a party to be affected by it. Now, it is urged that the proceeding to lay out the street here under examination was without jurisdiction in its very inception, because of the non-observance of statutory requirements— that where (as in this case, the claims for damages were not waived by those whose lands were .to be taken for the street) the statute required that the petition by freeholders, asking for the improvement, shouldspecify the improvement to be made, describe the land to be taken, state the owner or owners thereof, when known,” etc., and that on the presentation of such petition the trustees, if they decide to make the improvement, shall so decide by resolution to be entered in the minutes of the board.” Such is the statute. (Laws of 1870, vol. 1, 695, chap. 291.) It is insisted that these prerequisites to jurisdiction were not observed. The petition hy, the freeholders specifies the improvement to be made, and describes the land to be taken with absolute precision, corners, distances, and unmistakable monuments are given in it with particularity and certainty. These must, therefore, govern in determining the lands proposed to be taken for the street,, and these must also control in determining who were the owners of such lands. It turns out that the description, so minutely and unmistakably given, embraces lands of Seymour. Yet he is not named as owner in the petition, as the statute requires. It is no answer to say that it takes but a small piece of Seymour’s land, one rod wide and two rods long.' It is sufficient that the law requires just that to be done which is here omitted, and to adopt the language of AlleN, J., in the case first above cited, “ that which the legislature has directed courts cannot declare immaterial.” It is true the referee finds, in effect, that the description, as given in the petition, does not include, or rather. was not intended to include, any of Seymour’s land. But the description unmistakably embraces a piece of his land one-half the width of the street, for the distance of two rods, and of course a different or contrary intention cannot be permitted to countervail the fact made certain by the record.

In the next place, did the trustees declare their decision to make the proposed improvement “by resolution * * * entered in the minutes of the boards.” According to the record, the petition asking for the improvement was received by the board and placed on file. Then followed this entry in the minutes : “ Moved, that the improvement asked for in the said petition be made. Motion carried, all voting aye.” Here was a decision by a vote upon the motion, and the record of this vote was made by entry in the minutes of the board, but was it an entry of the decision “ by resolution ” within the purview of the statute ? The requirement of the statute is that there should be a record made of what was decided or determined upon in a particular form. This record was to be so made by resolution. In the proceedings of public bodies, especially those exercising legislative powers, there are two modes or forms of giving expression to their action — one by motion and vote simply, the other by the more solemn form of resolution. When applied to such pi’oceedings the use of these terms, respectively, carries a distinct and different meaning, one from the other. Now here the statute contemplates, first, a decision, and secondly, the making of a record of that decision in a particular specified form. There was a decision by motion, but there was also a record to be made of that decision “ bj resolution to be entered in the minutes of the board.” By being thus particular and specific, it is plain that it was intended that form as well as substance should be observed, to the end that the entry, when made, should of itself constitute a perfect record of what was decided — that the record so made should, of itself, show the improvement which was decided upon. So the decision was required to be “by resolution,” in contradistinction to any other mode of expressing what was determined upon. We are of the opinion that the entry in the minutes of the board did not meet the requirements of the statute in form or substance. To have answered these requirements there should have been an entry of a formal resolution, so complete in itself as to show what the improvement decided to be made was.

But let the case be examined as to the next step in the proceeding. The statute provides that following the decision and its entry in the minutes by resolution the trustees shall give notice, as-therein specified, of a time and place of meeting to hear objections that may be made to the taking of the land for the improvement, “ a copy of which notice must he served on the owner or owners of such land” if a resident, and by mail on non-resident owners, at which time and place persons interested might be heard before them, after which heai’ing they might deny the petition or approve, etc. The minutes of the board show that the proceedings were adjourned from time to time until July sixth, when the formal order laying out the highway was made and entered in the records.

The appellant claims that the notice of hearing before the trustees was not served on the owners of the lands proposed to be taken for the improvement, as required by the provision of the statute above cited. Without inquiring as to other owners, it is not pretended even that such notice was served on Seymour, or that he in any way waived its service. Here there was a fatal defect in the proceeding. Without service of a notice on Seymour, or of a waiver of it by him, the trustees had no authority to take his land. They were without jurisdiction in that regard. (Matter of S. A. M. E. Church, 66 N. Y., 395.) It is also claimed that there was neither service of the notice upon, or waiver of it by some other owners. This, however, is disputed. We think it unnecessary to go into an examination of this subject, the statute not having been complied with as to Seymour.

It may be well to note a further fact, that by the resolution or order of July sixth the trustees did not follow the application as made by the petition, but laid the road in part on a different route from that given therein. The statute is, that if they approve they shall declare by resolution “ their intention to make the said improvement /” that is, the improvement sought by the petition. The law gives them no right to change the route specified in the petition. They may “deny the petition” or approve, etc., and declare their intention to make the said improvement.” It is no answer to say the change made was small and did no harm to anyone. This would be to say that they need not follow the direction of the statute ; that they might disregard its requirements. Here was a statute with special provisions directing what steps should be taken 'and how they should be taken. If not followed the trustees were without jurisdiction. What might be done or omitted to be done in proceedings to lay out highways taken under the general statute, providing for the laying out of highways in towns, is of no moment here. The special law under which the trustees were authorized to proceed must be looked to and its requirements followed.

If the conclusions above reached be sound, the action of the trustees in laying out the street was without jurisdiction and void; and it becomes unnecessary to examine other very serious questions involved in the case raised by the appellants’ counsel. Some suggestions have been made by the respondent’s counsel to the effect that the doctrine of estoppel should be applied to the appellants as to most if not all the objections urged by the latter as grounds of error, and for the reason that they now seek to gainsay their own action, or which is the same, the action of their predecessors in office. But a party can never be estopped from raising questions going to jurisdiction. This case is, however, peculiar in view of the right demanded, the right to a mandamus to compel the defendants to make au assessment and levy a tax, to be collected from persons and property liable to taxation in the village. Therefore, having in view the rights of those to be affected by the assessment, the relators must make a clear case as against them for the relief demanded-; and as was said in substance in one of the cases heretofore cited, although the village should be deemed for a time to have been willing actors in the proceeding now sought to be enforced, it still has the right and is bound to take advantage of all want of authority both in its inception and progress. We are of the opinion that the judgment appealed from must be reversed.

Judgment reversed, new trial granted, costs to abide the event.

BoardmaN, J., concurred.

Learned, P. J.

Concurring in the result of this opinion, I do not feel certain that the vote on the motion was not a resolution under the statute.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author:
JBooKes, J.:
      Learned, P. J.: BoardMáN, J.:

text:
    MARGARET VAN SCHAACK, Appellant, v. JAMES SAUNDERS, Respondent, Impleaded, etc.

      Statutory foreclosure — the personal representatives of a deceased mortgagor must be served with notice — 3 JR. 8. (5th ed.), 860.
    Id January, 1880, statutory proceedings were commenced to foreclose a mortgage given by Stephen Post and Abigail B. Post on certain lands, and on April tenth the premises therein described were sold to one Saunders. Stephen Post had died in June, 1879, leaving a will, which was admitted to probate June 23, 1879, by which he appointed executors, neither of whom ever qualified or took out letters. Abigail died in the following September intestate, and no letters of administration were ever issued upon her estate. Notices of the foreclosure proceedings were given to the heirs-at-law of Stephen and. Abigail Post.

      Held, that the sale was void for the reason that no notice had been served upon the “ personal representatives ” of the mortgagors as required by the statute. (3 R. S. [5th ed.], § 3, sub. 3, p. 860.) (Boardman, J., dissenting.)

      It seems, that a service upon the persons named in the will as executors would be sufficient, although letters testamentary had not been issued to them. (Per Learned, P. J.)

      It seems, that where the mortgaged premises have been devised by the testator the service of a notice upon the devisee would render the foreclosure binding and effectual as to him. (Per Boardman, J.)
    Appeal from a judgment in favor of the defendant, entered upon tbe trial of tbis action by the court without a jury.
    The action was brought for the partition of certain premises. On and prior to tbe 19th day of April, 1875, Stephen Post and Abigail, his wife, owned the two narcels of land described in the complaint, one parcel being owned by the husband and the other by the wife. These parcels of land were adjacent to each other,, ' and were occupied by said Post and his wife Abigail as one parcel of land. On the 19th day of April, 1875, the said Stephen and Abigail Post duly executed a mortgage covering the whole of the said premises to one Winslow Case to secure the payment of $300 and interest, which mortgage was recorded in the clerk’s office of Greene county May 29, 1875.
    Stephen Post died at Catskill, Greene county, June 1, 1879, leaving a last will and testament, in which he" appointed executors. The will was duly admitted to probate and recorded as a will of real estate in the office of the Greene county surrogate on the 23d day of June, 1879, but neither of the persons therein named as executors accepted said trust or qualified as such, and no letters of administration with the will annexed were granted pi’ior to the sale of the said premises under the aforesaid mortgage. By the will the premises in question were devised, subject to a condition, to Sarah E. Post. Stephen Post’s wife Abigail died at Catskill, Greene county, in the month of September, 1879, intestate, and no letters of administration were issued. The plaintiff and three sisters, Sarah E. Post, Catharine Robbins and Charlotte J. McCrady, were the only surviving children and heirs-at-law of Stephen Post and wife. Default having been made in the payment of the mortgage executed by Stephen and Abigail Post, proceedings for the foreclosure of the same were instituted by the mortgagee on the 10th day of January, 1880, by advertisement, pursuant to the statute, which proceedings were duly continued and resulted in a sale of the premises described in the mortgage on the 16th day of April, 1880,' at Ooxsackie, Greene county, at which time and place the defendant Saunders became the purchaser at the sum of $426. Prior to the sale and on the 25 th day of February, 1880, said plaintiff and the other heirs-at-law of Stephen and Abigail Post, and the judgment creditor Stephen E. Calkins, were each and every of them duly and legally served by mail with notice of said foreclosure proceedings.
    The cause was tried before the court without a jury; the court decided tbat at the time of the commencement of this action the defendant Saunders was the sole' owner of the premises described in the complaint, and that the plaintiff had no right, title or interest therein; it also directed a dismissal of the complaint upon the merits.
    A7". A. Galkins, for the appellant.

      ~E. Raymond, for the respondent.
   JBooKes, J.:

This is an appeal by the plaintiff from a judgment dismissing the ■complaint as to the defendant Saunders.

The action was partition. The plaintiff claimed title to an undivided part of the premises as heir-at-law of Stephen Post and Abigail E. Post, the former of whom died June, 1879, and the latter in September of the same year.

The defendant Saunders claimed title as sole owner of the entire estate, as purchaser on a statutory foreclosure of a mortgage made by Stephen and Abigail E. Post. The foreclosure proceeding was commenced in January, 1880, and resulted in a sale to Saunders April tenth next following. Saunders’ defense prevailed and the complaint was dismissed. ' The question now raised is as to the validity of the foreclosure proceeding, it being insisted that the foreclosure was void because no service of the notice of sale was made, as the statute requires, “ on the personal representatives of the mortgagors.”

In answer to this alleged ground of error, it is first suggested that this question is not presented on this appeal. We, conclude otherwise. True, no case was made containing the evidence and giving the proceedings on the trial. But we have before us the pleadings, findings of fact and of law by the judge before whom the case was tried without a jury, the judgment and exceptions to the first and second conclusions of law. Now, Saunders, in his answer, while he sets up as his defense his purchase at the foreclosure sale, states in substance that there were no personal representatives of tbe mortgagors on whom service of the notice of sale was, or could be, made (fob 28), and so the judge states in* his findings (fol. 35). The facts on which the alleged error is based do, therefore, appear on the record brought up by the appeal.

Then, did the learned judge decide correctly in holding that the mortgage foreclosure was valid and effectual to pass title to the purchaser; no service of the notice of sale having been made, as there could be none on the personal representatives of the deceased mortgagors ? This holding of the learned judge is supported by the decision in Anderson v. Austin (34 Barb., 319). (See, also, King v. Duntz, 11 Barb., 191, and Cole v. Moffitt, 20 id., 19.) In Mackenzie v. Alster (64 How., 388; Same Case, 12 Abb. N. C., 110), the decision in Anderson v. Austin was pronounced unsound. The decision in Mackenzie v. Alster was at Special Term, but the question was fully considered by Judge Gilbert, both on principle and authority, and his opinion seems absolutely conclusive of it. The learned judge remarks that the court .has no power to dispense with a positive provision of the statute. If it can with one, it may with all. If the death of the mortgagor and the non-appointment of an administrator renders the service of a notice of sale unnecessary, the non-existence of a newspaper in the county would render unnecessary the publication of an advertisement of sale. Thus the provisions of the statute might be frittered away.” This case is like that spoken of by Judge Folger in Matter of Second Avenue M. C. (66 N. Y., 395-8), where he says: “It is a power given, with a proviso annexed. The demand of the proviso must be answered as a prerequisite to a legitimate exercise of the power.” The construction of the statute given in Mackenzie v. Alster does not, by any means, render a ioreclosure impossible. (See remarks of Gilbert, J.) But if it did so operate, the prerequisite to the exercise of the power of sale declared by the statute would remain. If it could not be complied with, the statute would simply fail of its purpose, a circumstance not infrequent. The following cases also have bearing on the subject: Shillaber v. Robinson (97 U. S. R. [7 Otto], 68); Mowry v. Sanborn (68 N. Y., 153); Lawrence v. Farmers’ L. & T. Company (13 id., 211); Cohoes Insurance Company v. Goss (13 Barb., 137); Bryan v. Butts (27 id., 503). Ye are satisfied with the decision in Mackenzie v. Alster; therefore accept it as sound and follow it.

If it be suggested that, as to one of the mortgagors, Stephen Post, there were persons named in -his will as executors, this will not help the case as to the • other mortgagor, who, though the wife of Stephen, was sole owner or owner in her owmright of a portion of the mortgaged premises; nor will that fact help the case as to Stephen, for there could be no personal representatives of a testator until an executor of his will was duly appointed'; nor will service of notice on the heirs-at-law of the mortgagor at all answer the requirement of the statute as to service on the personal representatives of the latter. (King v. Duntz, 11 Barb., 191.)

The insuperable difficulty which exist s in the case is because of the express provision of the statute which declares what must be done to effect a valid statutory foreclo sure. This mode of procedure is given by the statute, and can only be .effectual on an observance of the statutory requirements. If those prerequisites cannot be complied with, the light to that form of procedure does not exist, and the party is left to his foreclosure by action in equity. (See remarks of Boardman, J., in Northrup v. Wheeler, 43 How., 123.)

The question, who are necessary or proper parties defendant to a suit in equity for foreclosure has no pertinency here.

A foreclosure, however, to be of any avail, should be one which would bar a right of redemption by those having an interest in the mortgaged premises. Suppose a case of infant heirs-at-law of a deceased mortgagor, would service of notice of sale on them be of any avail to bar their right of redemption ? Certainly not, unless service was made on the personal representatives of the deceased mortgagor, in which case the statute steps in and declares such service good to bar the infant’s rights.

It is suggested that the cases cited in Barbour’s Reports are of long standing, hence should be followed right or wrong. But they have not stood unquestioned (Mackenzie v. Alston), nor has the Court of Appeals ever given those decisions approval; and it seems that they are in conflict with well settled rules of construction heretofore applied to other kindred cases from time immemorial. It is an axiom in law that a statutory right can only be secured by an observance of the conditions and prerequisites on which such right is made to depend. As the case is here made, the foreclosure relied upon by the defendant was ineffectual to pass title.

The judgment should be reversed, costs to abide the event.

Learned, P. J.:

I am not willing to bold that where there are no personal representatives of a deceased mortgagor, there can be no statutory foreclosure. To the contrary are Anderson v. Austin (34 Barb., 319); King v. Duntz (11 id., 191), and Cole v. Moffitt (20 id., 19); the first of these and the last being decisions at General Term, one of which has stood on the books for more than twenty years.

The so called foreclosure, by advertisement, is only the exercise of a power given in the mortgage. (1 R. S., 737, § 133; 2 R. S., 545, § 1.) And if the mortgagor or those interested in the estate, neglect to name personal representatives, or to have them appointed, this is not the fault of the mortgagee. In fact it is held that, in an action of foreclosure, the personal representatives are not necessary parties. (Leonard v. Morris, 9 Paige, 90; 2 Barb. Oh. Prac. [2d ed.], 176, and case cited in note 10.)

But I think that it appears in this present case that there were personal representatives of Stephen Post. It is stated that he executed a will and appointed executors. True they did not take out letters testamentary, but yet we cannot say that they were not his personal representatives. The statute does not take away all power from executors before the issue of letters testamentary. (2 R. S., m. p. 71, § 16.) The authority of the executors comes from the will. (1 William’s Exrs., 293; Hartnett v. Wandell, 60 N. Y., 349.) And the executor may do. many things before letters are issued. (1 William’s Exrs., 303.) He has a right to have letters issued to him until he has renounced, or in some other way been deprived of his right. On the other hand, where there are no executors, there can be no personal representatives, until the issue of letters of administration.

Therefore, I think that the executors of Stephen Post should have been served with notice of the foreclosure. They had been named by him as his personal representatives.

For this reason I concur in the result.

BoardMáN, J.:

I concur in yielding to the earlier cases (11, 20 and 34 Barb.) cited above, one of which is a General Term decision, rather than a later Special Term decision, however well considered.

Of tbe executors named in Stephen Post’s will one, Abigail Post, is dead, as tbe court finds. Whether the other is dead or. living does not appear. Nor does it appear that either of them ever in any manner accepted the trust or attempted to discharge any duty under the will. I do not think they ever became, under the law, personal representatives of Stephen Post. If so, they were as much so without the will being proved or admitted to probate. So a foreclosure by advertisement, in ignorance of the existence of a will or of the executors therein named, would always be fatal to a sale when discovered.

It is found that Sarah E. Post, defendant, was the devisee (under some unknown conditions expressed in the will" which is not in the case) of her father’s land. Had there been executors or administrators a service of the notice upon them and a subsequent valid sale would have cut off her title as devisee under her father’s will. (Code, § 2395.) Why, as devisee, personally served with notice of the foreclosure, is she not as effectually cut off? Why, as to her title as devisee, is she not the personal representative of her father ? I shall not attempt to answer these questions, but leave them for consideration (if entitled to any) upon the new trial which my brethren think a necessity. I cannot concur in such necessity.

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


author: LeabNed, P. J.:

text:
    ROBERT BOCOCK, Respondent, v. WILLIAM COCHRAN, Appellant.

      Police justice of Ooxsackie — the act creating the office is valid — 1867, chap. 360 — complaint for an assault— when the facts stated will protect the justice in issuing ■a warrant.

    The defendant, a police justice of the village of Coxsackie, issued a warrant for the arrest of the plaintiff for an assault and battery, upon a sworn complaint which alleged that the plaintiff did assault and heat the complainant, in the latter’s place of business, by striking him without lawful authority

      Held, that even though the facts stated were insufficient to establish the commission of an offense over which the justice had jurisdiction, yet they were sufficient to render the action of the justice in passing upon their. sufficiency a judicial one, and to protect him from an action for false imprisonment.

      Chapter 260 of 1867, incorporating the village of Coxsackie, provides for the . election of a police justice, and confers upon him, among other powers, “jurisdiction of all criminal cases, the same as is now possessed by justices of the peace of towns.”

      Held, that the act should be construed as conferring upon the justice jurisdiction of such criminal acts only'as should be committed within the territorial limits of the village.
    That as so construed the act did not create a local court within the prohibition of the Constitution and was valid.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The judgment was for $1,064.55.
    The action was brought to recover damages for a false imprisonment. On the 30th day of April, 1881, the defendant, acting as the police justice of the village of Coxsackie, issued a warrant for the arrest of the plaintiff, on the charge of assault and battery, the sworn complaint alleging that the plaintiff did assault and beat the complainant in the latter’s place of business, by striking him without lawful authority. The complaint upon which the warrant was issued, failed to show the place where the offense was committed. The defendant issued the warrant in which was written the village of Coxsackie as the place where the offense was committed. The defendant sent for Mr. Brandon, a young lawyer of the village and a town justice of the peace, and had him come and sit by him, in order, that he might consult with him.

      Griswold d> ■ Crowell, for the appellant.

      G. H. Adams, for the respondent.
   LeabNed, P. J.:

. We are of opinion that these damages were excessive. ¥e are well aware of the caution with which courts ought to interfere with ■this question, and need not refer to authorities. The plaintiff was arrested about ten A. m. Saturday, and walked with the constable to the defendant’s office. During the adjournment for dinner the plaintiff was practically at liberty on informal bail given by Mr. Curtis. An adjournment to Monday was necessary. The constable took the plaintiff to the village lock-up, where he remained, as he says, an bour, as tbe constable says, fifteen minutes, then tbe constable released bim.

If the lock-up was an unsuitable place, that was not defendant’s-fault; nor does it seem that tbe defendant gave any direction to tbe constable.

Considering that this is an action against a magistrate, acting in tbe apparent discharge of bis duty, we think that tbe jury must have been influenced by prejudice in their verdict. It can hardly be of any use to go over tbe testimony in detail on this point, tO’ support our views.

With this view we might, for the present, dispose of this ease. But a new trial will present questions of law, which may as well be considered at this time.

In the first place it is claimed that the magistrate acquired no' jurisdiction because the sworn complaint did not state the offense to-have been committed in Coxsackie. Under the decision in Harrison v. Clark (11 Sup. Ct. N. Y. [4 Hun], 685); Stewart v. Hawley (21 Wend., 552); Harman v. Brotherson (1 Den., 537), we are of the opinion that the action of the magistrate in issuing a warrant upon the sworn complaint presented to him was judicial, and that he is-not liable to a civil action of false imprisonment for error therein. The protection of every officer who acts judicially against liability to an action for error is most' important; and has recently been asserted in the noticeable case of Lange v. Benedict (73 N. Y., 12). We may refer also to Clark v. Holdridge (58 Barb., 61), and Kenner v. Morrison (19 Sup. Ct. N. Y. [12 Hun], 204). See, also, Blythe v. Tompkins (2 Abb., 469), where this view is taken, although the magistrate was held liable for a defect in the warrant. The ease of Blodgett v. Race (25 Sup. Ct. N. Y. [18 Hun], 132) cited by plaintiff really sustains this same view. The magistrate was held liable in that case because no facts were stated in the complaint, not because the facts stated were insufficient.

In the present case facts were positively sworn to. Admit that they were insufficient, still the magistrate, acting judicially, held that they were sufficient, and he is not liable to a civil action for his-mistake.

There remains one question, and that of great importance. It was held that the provisions of the act incorporating the village of Coxsackie were unconstitutional, in creating the office of police justice and conferring on him certain authority. (Laws of 1867, chap. 260, §§ 2, 15.)

Even before the amendment to the Constitution of .1869 the legislature might organize inferior local courts in villages. (Sill v. Village of Corning, 15 N. Y., 297; Brandon v. Avery, 22 id., 469.)

The question is whether this act creates a local court. Section 15 provides that “the police justice shall have jurisdiction of all criminal cases the same as is now possessed by justices of the peace of towns.” Does this mean that he has such jurisdiction within the village only, or also beyond its limits ?

In Geraty v. Reid (78 N. Y., 64), the Justices’ Court of Brooklyn, by an act'of 1849, had the same jurisdiction in said city that justices of towns had. It was held that a subsequent act of 1850, giving in addition the like jurisdiction as is exercised by justices of the peace of towns, did not extend their power outside of the city. For it was said that the other construction would make the act invalid, and that between two constructions that is to prevail which will uphold a statute rather than that which will condemn it.

In the case of Waters v. Langdon (40 Barb., 408), the act gave the police justice of a village the same power and jurisdiction as justices of the peace m the town of Whitestown, and said that his judgments and proceedings might be reviewed in the same manner as is, or may be, provided in case of judgments and proceedings of justices of the peace. Thus the act gave him the power of a justice of the peace in Whitestown. In fact it made him a justice of the peace. That was held to be unconstitutional. Now if we turn to Brandon v. Avery (ut supra) we shall find that the words “ in said village ” were held to make the court of the police justice local and therefore constitutional.

In the case of Village of Deposit v. Vail (12 Sup. Ct. N. Y. [5 Hun], 310) it was held that a statute authorizing the election of a police justice and saying that he should have the same jurisdiction, and as possessed by justices of the peace in the State, was intended to limit his jurisdiction to the village of Deposit and was constitutional.

We must then come back to this statute in question and consider from its whole language what was intended, bearing in mind the rules of construction above stated. W e find by section 2 that the police justi oo is an officer of the corporation. By section 15, in addition to the clause above cited, he is to have jurisdiction of civil ,and criminal matters arising under the charter of the village or any ordinances thereof. But he is not to serve as auditor or to have any appointing power, thus showing that he has not the full powers of a justice of the peace. So the eighteenth, nineteenth and twenty-third sections give special powers to the police justice, which are plainly local. The forty-first also specifies that moneys arising from fines and penalties shall be paid to the treasurer for the use of the village.

Looking then at this whole act, and taking, according to the above cited principle, that construction which will uphold rather than that which will condemn, is it not reasonable to say that the words in the act, “ jurisdiction of all criminal cases, the same as is now possessed by justices of the peace in towns,” mean within the village f Could the legislature have meant, as the plaintiff must argue, that the police justice is by the terms of the act given jurisdiction to try all criminal acts committed in any town of the county which might be tried before a justice of the peace ? On the contrary, it seems to us that the better construction is to hold that the words “ the same ” are descriptive of the kind and class of jurisdiction and not of the local extent.

"We have hei’e in fact words very similar to those in the act of 1850, discussed in Geraty v. Reid (ut supra), “ the like jurisdiction ” as is exercised by justices of the peace of towns; yet it was held that these words -must be construed so as to limit their operation to the city of Brooklyn. Why should we not construe the words in the present act to be limited to the village of Coxsackie,- so as to uphold rather than condemn the statute ?

Still another objection is made that the defendant associated with himself Mr. Brandow. We do not think that a justice of the peace may not consult another justice or a lawyer, or that he may not have such other justice or lawyer take minutes. That is no worse than if a stenographer took them. It does not appear that Brandow assumed any authority to try the case. He might lawfully act as amicus curice.

We may suggest, also, another view of this case, and that is, that a large amount of the alleged false imprisonment was done under the authority of the defendant acting not as a court, but merely as an examining magistrate. The constitutional question has always been, so far as we know, as to the power to create other courts than those expressly provided for in the Constitution. (See Sill v. Corning, ut Supra, and other cases.) ’Whether it can apply to the legislative power to create examining and committing magistrates would be an important question; if the defendant’s acts had been from first to last the acts of a magistrate only, and not of a court.

The judgment must be reversed for excessive damages and also for error in law, new trial granted, costs to abide the event.

Present — LEARNED, P. J., Bocees and Boaedman, JJ\

Judgment and order reversed on the law and for excessive damages.