text:
    Russel C. Smith, Resp’t, v. Mary McMillan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Justice’s court—Former adjudication—Judgment of nonsuit.
    Where a cause is submitted to a justice of the peace after hearing proof, and he takes time to make up his judgment, it is not then in the power of the justice to nonsuit the plaintiff, and though he may call his judgment a judgment of nonsuit, and enter it accor dingly, it will be deemed in law a judgment for the defendant and will be a bar to a subsequent action.
    Appeal from a j udgment for plaintiff after overruling a motion for nonsuit.

      Fred A. Bratt, for app’lt;

      A. V. Pratt (J. M. Whitman, of counsel,) for resp’t.
   Putnam, J.

We are of the opinion that the court below should have granted the motion of defendant, made at the close of the trial, to dismiss the complaint on the ground that in a former action brought by the plaintiff against defendant for the same injury alleged in the complaint herein, defendant recovered a judgment on the merits against the plaintiff. It was not denied by respondent that he had in 1893 brought an action before one Burpee, a justice of the peace, for the same trespass for which he seeks now to recover. The proceedings in that action, as set out in the docket of the justice, were read, and it appeared that the parties appeared therein and joined issue; that witnesses were sworn, and the case was tried before said Burpee. After the evidence was taken, the attorneys for the respective parties summed up, and the case was submitted to the justice on December 16, 1893, he taking the customary time in which to render his decision. On December 20, 1893, he entered up judgment—as he termed it—of nonsuit against the plaintiff, with five dollars costs. We think this was in fact a judgment on the merits, although called by the justice a judgment of nonsuit. In Elwell v. McQueen, 10 Wend. 519, it was held that:

"A justice at the trial has a right to nonsuit the plaintiff, if in his judgment he fails, upon his own showing, to make out his case, either on the ground of the incompetency or the insufficiency of his evidence; and a judgment of nonsuit in such a case is no bar to another action for the same cause. But if the cause be submitted to the justice after hearing proof, and he takes time to make up his judgment, it is not then in the power of the justice to nonsuit the plaintiff. His determination is equivalent to the verdict of a jury, and a judgment thereon; and though he may call his judgment a judgment of nonsuit, and enter it accordingly, it will be deemed in law a judgment for the defendant, and will be a bar to a subsequent action.”

The same doctrine has'been held in other cases. See Hess v. Beekman, 11 Johns. 457; Gillilan v. Spratt, 8 Abb. Prac. (N. S.) 13; Peters v. Diossy, 3 E. D. Smith, 115; Blum v. Hartman, 3 Daly, 47.

The learned counsel for the respondent calls our attention to the case of Seaman v. Ward, 1 Hilt. 52, in which Daly, J., holds that a motion for a nonsuit having been made before a justice, and the decision reserved by him, he could, after the submission of the case, render a judgment of nonsuit that would not be a bar to a subsequent action; and the counsel urges that as on the trial of the former action, before Burpee, a motion for nonsuit was made by defendant, and the decision reserved, said justice was authorized after the submission to .render a judgment of nonsuit. The statement of Daly, J., in Seaman v. Ward, supra, that a justice who reserves his decision on a motion for nonsuit can render a judgment of nonsuit after the case is finally submitted to him, merely expresses the opinion of the learned justice, was not called for in the decision of that case, and, I think, is contrary to the doctrine laid down in Elwell v. McQueen, supra. The motion for a nonsuit on the trial before Burpee was made at the close of plaintiff’s evidence, and was not renewed. Afterwards the defendant swore a witness, and the attorneys of the respective parties summed up, and the justice took the customary time in which to render his decision. When the justice reserved his decision on the motion for a nonsuit, he must be deemed to have made such reservation until the close of the trial. Under the provisions of section 3015, Code Civ. Proc., he was only authorized to enter a judgment of nonsuit at or before the final submission of the ease. That section says he shall enter a judgment of nonsuit “forthwith.” He had no right, under the statute, to render such a judgment against plaintiff four days after the submission of the cause. When he reserved his decision, as above suggested, he must be understood to have made such reservation for the period which, under the statute, he was authorized to render a judgment of non-suit, and he cannot render such a judgment after the final submission. We think, therefore, that the doctrine laid down in Elwell v. McQueen, supra, applies.

Judgment should be reversed, with costs in this court, and judgment of nonsuit rendered in favor of defendant in the action, with costs.

Mayham, P. J., concurs; Herrick, J., dissents.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Wynantskill Knitting Company, App’lt, v. Edward F. Murray et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Carriers—Consignee—Reasonable time.
    What is a reasonable time in which to remove goods by the consignee, after the same are unloaded at a wharf, and notice given, where there is no dispute as to the facts, is ordinarily a question of law to be passed on by the court.
    2. Same—Negligence of consignee.
    A delay of four days in removing goods after notice of delivery by the carrier on the dock is unreasonable.
    3. Same—Delivery.
    The fact that the carrier had not unloadeu. a car of the consignment, due to the fact that it was in the vessel surrounded by other freight, does not affect its liability for the preservation of the part unloaded, though the consignee has commenced to take away the part unloaded without objection to the goods being delivered in two parcels.
    4. Pleading—Pbooe.
    In an action based on defendant’s liability as a common carrier, a recovery, founded on its liability as a warehouseman, cannot be had.
    Appeal from a judgment for defendants, entered on a verdict, and from an order denying a motion for a new trial.

      Martin & Kelly (Olin A. Martin, of counsel), for app’lt;

      Townsend,, Roche & Nason ( William J. Roche, of counsel), for resp’t.
   Putnam, J.

This is an appeal from a judgment entered in the Rensselaer county clerk’s office on November 20, 1894, upon a verdict of a jury, and from an order denying the plaintiff’s motion for a new trial. The following facts may be deemed established by the verdict of the jury: On Wednesday,- the 6th day of July, 1892, a barge belonging to defendants left the city of New York with 100 bales of cotton, owned by the plaintiff, which were shipped to it at the city of Troy. The barge arrived at Troy, reaching the dock at the foot of State street, where the defendants conduct their business, on 'the morning of Saturday, July 9th. The work of unloading the barge was commenced at seven o'clock, and the deck load of seventy-one bales of cotton, consigned to plaintiff, was unloaded before twelve o'clock of that day. On the evening of the 8th the defendants made out and deposited in a post-office box a postal card, addressed to plaintiff, notifying the company that the 100 bales of cotton were ready for delivery. The plaintiff’s president received this postal card on Saturday, and at once notified the teamster employed by plaintiff to go and get the cotton. Defendants’ witnesses say that the first was taken away on Saturday afternoon. It is not denied by the plaintiff that some of the cotton was draw away before Wednesday, the 13th day of July. On the afternoon of that day a fire broke out in the cotton, and thirty-six bales were damaged or destroyed. Twenty-nine bales of the cotton had been placed in the hold of the defendants’ barge in New York, and other freight was placed around them, and they were not unloadéd at the time the seventy-one bales were delivered. When the defendants’ freight, including the seventy-one bales of cotton, was removed, the barge left the dock to deliver other freight, and the twenty-nine bales were taken along. It returned to delendants’ dock about noon on Wednesday, the 13th. Before these twenty-nine bales could be unloaded, the fire broke out in the cotton on the wharf. Those bales, were, therefore, taken back to New York, plaintiff consenting, and subsequently taken back to Troy, and accepted by plaintiff. No claim with reference to them is made in the complaint or was asserted on the trial.

The action was brought against the defendants as common carriers. No claim is made in the complaint or was asserted on the trial against them as warehousemen. Their duty as common carriers by water was, not only to convey the cotton to the port of destination, but to deliver it there to the consignee. Such delivery could be either actual or constructive. There was a constructive delivery, if the defendants unloaded the cotton at the wharf at Troy, and notified plaintiff, after the lapse of a reasonable time for its removal by the latter. Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 171; 17 St. Rep. 153. It was the duty of plaintiff, on receiving such notice, to at once and with diligence proceed to remove the cotton. Tarbell v. Shipping Co., supra; Hedges v. Railroad Co., 49 N. Y. 223. The cotton remained at the risk of the defendants until after the lapse of a reasonable time for the consignee to remove it. After the expiration of such time, the liability of the defendants as common carriers ceased, and, if any way responsible, they were only so as warehousemen. The defendants had no right to place the cotton in a warehouse for the plaintiff until the latter had a reasonable time to remove it. Redmond v. Steamboat Co., 46 N. Y. 578-583. It has been held that what is a reasonable time in which to remove goods by the consignee, after the same are unloaded at a wharf, and notice given, where there is no dispute as to the facts, is ordinarily a question of law, to be passed on by the court. Hedges v. Railroad Co., supra; Wright v. Bank of Metropolis, 110 N. Y. 237-249; 18 St. Rep. 92; Colt v. Owens, 90 N. Y. 368. These authorities do not conflict with Scheu v. Benedict, 116 N. Y. 510; 27 St. Rep. 526, and other cases, which hold that, under certain circumstances, the question of reasonable diligence in removing goods after their arrival should be submitted to the jury as a question of fact.

On the evidence in this case, the jury were authorized to find that, on Saturday, the 9th of July, plaintiff received the notice sent by defendants of the arrival of the cotton; that it was unloaded on that day by noon, and plaintiff commenced drawing it away; that it was not damaged or destroyed by fire until the afternoon of the following Wednesday. We think, under doctrines established in the cases cited above, the court did not err in instructing the jury that, if they found the cotton was delivered on the dock at Troy on the morning of Saturday, July 9th, and plaintiff received the postal card notifying them of its arrival on that day, the liability of defendants as common carriers ceased before the fire on the following Wednesday, as they were only liable thereafter, if at all, as warehousemen, and in declining to charge, as requested by plaintiff, that “ the question whether the cotton was taken away by the plaintiff within a reasonable time is one, under the circumstances of the case, for the jury to pass upon.” If the plaintiff had notice of the arrival of the cotton on Saturday, the 9th, and allowed it to remain on the dock until the afternoon of the following Wednesday, it failed to act promptly and with .reasonable diligence, and defendants ceased to be liable as common carriers. Hedges v. Railroad Co., surpa; Tarbell v. Shipping Co., supra. And it was for the court, under the circumstances, to determine the question as to the reasonable diligence of plaintiff in removing the goods. In the case of Hedges v. Railroad Co., the action was brought against the defendant, as common carrier, to recover for a portion of a car load of paper destroyed by fire. The plaintiffs had notice of the arrival of the paper on the morning of the 24th of May, and removed one load, and the balance was burned the same night. In his opinion. Judge Folger remarked:

“ We do not perceive that there is here any dispute as to the material facts. It is certain that, with -three or four trucks, all the paper could easily have been hauled away, before the close of defendant’s business on the day on which one load was taken with one truck. It is certain, too, that, with the one truck of their own, two. loads could have been received by the plaintiffs from the defendant on that day. So that it was a question of law for the court whether it was unreasonable for the plaintiffs to employ but one truck, or, if reasonable to employ but one truck, ' whether it was reasonable to send it but once for paper that day. The learned trial judge left the question for the jury. In this we think he erred.”

In this case it is clear that the plaintiff could, with reasonable diligence, have removed the cotton, during the three days that elapsed after it received notice of its arrival before the fire, and, under the authorities cited, the court was authorized to determine the question as to its reasonable diligence.

The trial court was not called upon to charge, as requested by plaintiff, that, before the character of defendants as common carriers could change to that of warehousemen, they must warehouse the freight. As we have seen, there was no claim in the complaint against defendants as warehousemen. The only question before the court was whether the defendants were liable as common carriers, and on the subject of such liability it had given the jury all the instruction necessary, in a clear, full, and fair charge. The liability of defendants was not affected in any way by the fact that twenty-nine of the 100 bales of cotton it had undertaken to transport had not been unloaded at the time of the fire. No negligence is claimed on the part of defendants in not unloading these bales at the same time they delivered the deck load of cotton. It appears that the twenty-nine bales were in the hold of the barge, surrounded by other freight, and could not be delivered until such freight was removed. Under the circumstances, we think the defendants had the right to deliver the cotton in the way they did. On the delivery of the seventy-one bales, plaintiff commenced taking it away,' and it does not appear that it made any objection to the cotton being delivered in two parcels, after-wards accepting the twenty-nine bales.

We think the case was fairly submitted to the jury by the learned trial judge,'that no errors were committed, and that the judgment should be affirmed, with costs.

• Mayham, P. J., concurs; Herrick, J., concurs in result.


author: Putman, J.

text:
    In the Matter of the Application by Peter Harris, for a Writ of Mandamus.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

      i. Taxes—Tax sale—Judicial acts.
    The comptroller of the state has power to pass upon the question of the validity of a tax sale of lands, and his action, in such case, is in the nature " of a judicial function.

      2. Pleading—Judgment.
    Where the petition for the mandamus states that the relator duly made application to the comptroller, under and in pursuance of the provisions of chapter 448 of 1885, and is authorized thereby and by law to cancel a tax sale, and the comptroller, upon said application and the papers presented therewith, did by proper order and decision, duly cancel, annul and set aside said sales, as wholly illegal and void, it is a sufficient averment • by the relator of the judgment or decision rendered thereon by that officer.
    3. Mandamus—Ministerial action.
    Under 1 Rev. St. (8th ed.) p. 618, the act of the commissioners of the land office in directing the repayment of the purchase money paid to the state is ministerial, and therefore, enforceable by mamdmuus. ■

    4. Same—Purchase money—Assignee.
    Under the above mentioned section of the Revised Statutes, the assignee of the purchaser upon á tax sale is entitled to the repayment of the purchase money.
    Application for a writ of mandamus to compel the commissioners of the office to make an order for the refunding of certain money.

      T. E. Hancock, Atty Gen. (W. E. Kisselburgh, Jr., Dep. Atty. Gen., of counsel), for app’lts;

      Z. S. Westbrook, for resp’t.
   Putman, J.

This is an appeal from an order directing a peremptory mandamus to issue to the commissioners of the land office, commanding them to direct that $6,300, the purchase money paid on or before February 2, 1882, one Jere W. Finch, assignor and grantor of the applicant, by Peter Harris, for certain lands sold by the state to said Finch, be> repaid to said Peter Harris out of the treasury of the state, with interest. The state acquired title to the lands in question from various tax sales, and said premises were sold on behalf of the state to Finch for $6,300 on the 1st day of February, 1882. On the 2d of February, 1882, Finch paid to the treasurer of the state $6,300, the purchase price aforesaid. No patent or deed was ever issued to Finch, but the comptroller’s certificate of sale was assigned to him. On the 15th day of December, 1884, said premises were transferred by Finch to the applicant, Harris.

Thereafter, about the 29th day of March, 1892, the said tax sales from and by which the state obtained title were by order of the comptroller, canceled and set aside. In June, 1892, said Peter Harris presented to the commissioners of the land office an application that the purchase price paid by said Finch for the premises be refunded to him, on the ground of the failure of the state’s title. On the 27th day of December, 1892, said application was denied. In the petition for a mandamus the applicant stated, in reference to the tax sales under which the state conveyed the premises in question to Finch, his assignor and grantor as follows:

“That the said applicant herein, Peter Harris, discovering and claiming that the said state tax sales, and each of them, and the taxes for which said sales of said lands were made in 1871, 1877, and 1881, were wholly illegal and void, and that no title had'ever passed to the people of said state, or been given, granted, or passed by reason thereof, or either of said tax sales, duly made application to the comptroller of said state, under and pursuant to the provisions of ciiapter 449 of the Laws of 1885, of said state, and as provided and authorized thereby and by law, to cancel, annul, and set aside the said tax sales of 1871, 1877, and 1881, and each of them, and all the title which the people of said state had acquired to said land thereby, and each of the taxes for which each' of said sales had been made, upon the grounds provided and authorized by law, because the said sales, and eabh of them, and the said taxes, and each of them for which the said sales had been made were wholly illegal and void. And the comptroller, upon the said application of your applicant, the said Peter Harris, and the proof presented to said comptroller thereon and herewith, and after due examination and investigation, did on the 29tli day of March, 189-2, by proper order, decision, and determination, duly cancel, annul, and set aside, as wholly illegal, null, and void, the’said tax sales of 1871, 1877, and 1881, and the conveyances ana certificates therefor and of said sales, and each of them, and all the right title, and interest which the people of the state of New York had and ever had or acquired therein, or in or to said lands.”

His statement is corroborated by the affidavit of his attorney, Z. S. Westbrook.

The appellants read on the hearing below an affidavit of a deputy attorney general of the state, which states:

“ That he has been informed, from an examination of the records in the state comptroller’s office, and believes, that the tax sales which were canceled as shown by the petition of said Peter Harris in the above-entitled matter were canceled by the comptroller of the state of New York upon the following grounds: First, that the taxes were not carried out on the assessment rolls by the supervisors ; second, that the amonnts of highway taxes on the assessment rolls were not properly designated, being designated in many instances by abbreviations, such as ‘ H.’ and ‘Hy.’; third, that the affidavit attached to the collector’s return of unpaid taxes had no venue ; fourth, that the return of unpaid taxes to the comptroller’s office described the lands in the river section, whereas they were in the general allotment.”

The affidavit does not controvert the statement contained in the petition that Harris duly made application to the comptroller to cancel the tax sales in question, or that proof was presented to that officer, and that, after hearing the same and considering it, he duly directed that the sales be canceled. What proofs were offered, or what the contents of the petition or papers presented to the comptroller were, do not appear ; the affidavit merely stating that the affiant is informed, from an examination of the records of the state comptroller’s office, and believes, that said tax sales were canceled for the reasons in the affidavit specified. The statute authorizes the commissioners of the land office to direct repayment of the purchase money received by the state on account of land granted by it, when the title thereto- shall fail, as follows:

“ Whenever the title of the people of this state to lands granted under its authority shall fail, and a legal claim for compensation on account of such failure shall be presented by any person entitied thereto, ft shall be the duty of the commissioners to direct the payment of the original purchase money which may have been paid to the state bv such person, with interest at the rate of six per cent, from the time of such payment, to be paid out of the treasury on the warrant of the comptroller.” 1 Rev. St. (8th ed.) 618.

It is urged by the learned counsel for appellants that the title of the state had not failed, and that the comptroller, in assuming to decide to the contrary, acted without jurisdiction, and that his determination was void ; that, at the time of the passage of chapter 448 of the laws of 1885, the certificate of sale to the state, under which applicant was in possession of the lands in question, had teen outstanding over two. years and was outstanding" at the time of the cancellation, and that over six months since the passage of the act of 1885 had then elapsed ; that the grounds of the cancellation were not jurisdictional defects in the proceedings, but mere irregularities, which were cured by the statute of 1885. The above-quoted provision of the statute (1 Rev. St. [8th ed.] p. 618), while providing that, when the title of the state, to land granted mder its authority shall fail, it shall be the duty of the commisáoners to direct the payment of the purchase money paid into the hate therefor, conferred no power upon the commissioners to determine the fact as to the state’s failure of title. The act is silent ir that regard. But sections 83-85, chap. 427, Laws 1855, confe upon the comptroller of the state power to pass upon the question of the validity of a tax sale of lands. It has been held that • tbi power of the comptroller under this act, is in the nature of a jucicial function. People ex rel. Ostrander v. Chapin, 105 N. Y. 309; 7 St. Rep. 209. Sections 83-85, chapter 427, Laws 1855, wen not repealed by chapter 448, Laws 1885, either directly or by inplication. The act of 1885 is merely an amendment of section 55 of the act of 1855. The amendment provides a rule of evidence for the comptroller and for courts, when the validity of a taxsale is called in question, leaving the balance of the act of 1855 n full force. See People ex rel. Hamilton Park Co. v. Wemple, 139 N. Y. 240, 248; 54 St. Rep. 623. By the presentation, of theapplication of Peter Harris to the comptroller, that officer, under he statute, acquired jurisdiction to pass upon the question •of the -alidity of the tax sales referred to. The petition for the mandamus states that Harris made application to the comptroller, under ad in pursuance of the provisions of chapter 448, Laws 1885, aril as authorized thereby and by law, to cancel said tax sales, ant. the comptroller, upon said application and the papers presentedtherewith, did, by proper order and decision, duly cancel^ annu.and set aside sales, as wholly illegal and void. This wab a sufhient averment of the proper presentation of the application to te comptroller by Harris, and of the judgment or decision réndeed thereon by that officer. Code Civ. Proc. §§ 532, 2080; Bromell v. Town of Greenwich, 114 N. Y. 518; 24 St. Rep. 6 ; Citing v. Massa, 15 id. 316. Tnere was no general denial interpoed to the allegations stated in the petition. It was not denied tat Harris duly presented his application to the comp troller to have said tax sales canceled, or that the comptroller duly rendered his decision on such application, except such denial as is contained in the affidavit read on the part of the appellants, which merely stated the grounds on which the comptroller rendered his decision. But the affidavit contained no allegation showing, or tending to show, that the matter was not regularly and properly brought, before the comptroller for his decision. The applicant, therefore, claiming that the tax sales in question were wholly void, applied to the comptroller, under the statute, to cancel them, and offered proof before that officer, who, after hearing the proofs, did determine that the sales were void. As we have seen, his action in passing on the question submitted to him was judicial. On the presentation • of the application of Harris, he could have been compelled by mandamus to pass upon the merits thereof. People ex rel. Ostrander v. Chapin, supra. We think, therefore, that the comptroller had jurisdiction to determine the question submitted to him by the applicant, and that his judgment, unless reversed, cannot be called in question in this proceeding.

It is suggested by appellants that in fact, under chapter 448, Laws ' 1885, the title of the state to the lands in question had not failed, that the certificate of sale under which Harris held the lands hat remained in force over two" years after the last day allowed by lav to redeem from such sale when the act of 1885 was passed, and hid remained in force over six months after the passage of the act before the comptroller assumed to cancel the sales, and these fads, under the act, afforded conclusive evidence of the regularity of tie sales. If we assume that this position is correct, it merely follcws that the comptroller decided the matter submitted to him eroneously, but it does not follow that he acted without jurisdicton. If Harris had made no apjriication to cancel the tax sales, andhad obtained a patent from the' state, and afterwards commence! an action to eject some person from his land, claiming that, the lapse of time after the act of 1885, his tax title had become :alid, and the court before whom the matter was tried, disregardiig the rule of evidence prescribed by the act in question, had hid' his title invalid, such a decision might have been an error forwhich the judgment could have been reversed. But, if such a juigment were not appealed "from, its validity could not have been oiled in question in another action. The error of the court wcrid not have divested its jurisdiction. So in this case the preceding of applicant to have the tax sales in question canceled were ugularly and properly before the -comptroller. It was the busines of that officer, under the statute, to pass upon the applicatio, and in passing upon it he acted judicially. IE he erred, he di so after the matter was before him for decision, and after heacqured jurisdiction. His error should not deprive him of jurisdition, but would only render his decision liable to be reversed on certiorari. See Schaettler v. Gardiner, 47 N. Y. 404; Allen v. Railroad Co.; 15 Hun, 80; Ham v. Silvernail. 7 id. 33; Porter v. Prdy, 29 N. Y. 106; People v. Collins, 19 Wend. 56. On the aplieation of Harris, the duty of the comptroller was to find out&nd decide whether the said tax sales were or were not invalid. He had to judicially pass on the question, arid had jurisdiction to do so. Had he held the sales valid, he would have acted within his jurisdiction ; and so his holding them invalid, however erroneous his determination may have been, did not divest him of jurisdiction. We therefore are of opinion that the decision of the comptroller canceling the tax sales in question on the application of Harris was made in a proceeding of which that officer had acquired jurisdiction ; and although he may have erred, in not being governed by the rules of evidence prescribed by the statute of 1885, and his decision might have been on that account reversed on certiorari, he did not lose jurisdiction of the case on account of such error, and his decision is binding upon the appellants.

It is claimed that the commissioners of the land office, in denying the application of Harris, acted judicially. We are not referred to any statutory authority conferring upon the commissioners power to determine the question of the validity of a tax sale. It is undoubtedly true that, if they did act judicially in denying the application of Harris, his proper remedy would be by certiorari, and. not mandamus ; but we think the power of the commissioners, under the provisions of the statute above quoted, is not judicial. The cases cited by appellants (People ex rel. Millard v. Chapin, 104 N. Y. 96; 5 St. Rep. 588, and People ex rel. Equitable Life Assur. Soc. v. Chapin, 103 N. Y. 635; 3 St. Rep. 38), refer to decisions of the comptroller in cases where authority to act judicially is conferred upon him by statute. If the position-of appellants is correct, Harris, having submitted his case to the comptroller, and having obtained the decision of that officer adjudicating the invalidity of the tax sales in question,—a valid judicial determination (People ex rel. Ostrander v. Chapin, supra),—is again compelled to submit the same matter for adjudication to another judicial tribunal. We think the position of appellants cannot be sustained.

We are of opinion that Harris, as grantee or assignee of Finch, was entitled to repayment of the purchase price paid by Finch to the state for the land in question. See opinion of Andrews, J., in People ex rel Ostrander v. Chapin, supra. As to the other question involved, we concur in the views expressed by the court below: 12 Misc. Rep. 223.

The order should be affirmed, with costs.


text:
    The People ex rel. Brooklyn Elevated Railroad Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 2, 1895.)

    1. Taxation—Corporations—Burden.
    In a proceeding to review the action ol the comptroller when imposing a tax under the act of 1880, the burden is upon the relator to show the error or mistake, if any, of the comptroller.
    2. Same—Value of stock.
    Under chapter 542 of 1880, complaint cannot be made of the comptroller’s valuation, where it is the average price paid for the stock during the year, as shown by the testimony of the corporation’s auditor.
    Certiorari to review a valuation made by the comptroller for taxation.
    Hoadly, Lauterbach & Johnson (William H. Page, Jr., and Frederick P. Delafield, of counsel), for relator ;

      T. E. Hancock, atty. gen (G. D. B. Hasbrouck, dep. atty.gen., of counsel), for comptroller
   Putnam, J.

This is a proceeding brought to review a valuation made by the comptroller of the state of the capital stock of the Brooklyn Elevated Eailroad Company for the purpose of taxation for the year 1893, under the provisions, of chapter 542 of the laws of 1880, and the acts améndatory and supplementary thereto. Eelator contends that the comptroller erred in the principle upon which he proceeded in making the valuation. On the 16th day of November, 1893, relator made a report, under the provisions of section 1 of the act of 1880, by which it appraised its capital stock at $20 per share. The comptroller, being dissatisfied with such appraisal, made a valuation of said stock at $30 per share. Thereafter, on motion for a rehearing, he reappraised the stock at $29 5-6 per share. Under section 1 of the act of 1880, it was the duty of the Brooklyn Elevated Eailroad Company, in making its report to the comptroller, to estimate and appraise its capital stock at its actual cash value, “ not less, however, than at the average price at which said stock sold for during said year”; and the statute provides that, if the comptroller was not satisfied with the valuation so made, he was authorized to make a valuation thereof, and to settle an account upon the • valuation so made by him for taxes, penalties, and interest due the state thereon.

The only question that need be considered is whether or not it is shown by the papers and evidence submitted to us that the comptroller, in making the valuation of relator’s capital stock, appraised it at a sum above the average price at which said stock sold during the year. It was not necessary for him to ascertain the “ intrinsic ” or the actual value of the stock in cash, unless that exceeded the market value, as under the statute, he was obliged to appraise it at a sum not less than the average price at which said stock sold during the year. It is" well settled that, in a proceeding to review the action of the comptroller in imposing a tax under the act of 1880, the burden is upon the relator to show the error or mistake, if any, of the comptroller. People ex rel. Western E. Co. v. Campbell, 80 Hun, 466; 62 St. Rep. 304. It is said by GRAY, J., in People ex rel. Am. C. & D. Co. v. Wemple, 129 N. Y., at page 565 ; 42 St. Rep. 400 : “The determination of the comptroller as to an assessment and taxation, unless clearly shown to have been erroneous, should not be disturbed.” And in People ex rel. Robelings Sons Co. v. Wemple, 138 N. Y., at page 583; 53 St. Rep. 297, O’Brien, J., says in regard to an assessment by the comptroller under the act of 1880 : “His determination as to the amount of the tax should not be disturbed now, unless it clearly appears to be erroneous.” It was not, therefore, as the learned counsel for the relator assumes, incumbent on the comptroller to show that his valuation of relator’s stock, and his determination as to the market value thereof, was right, but, on the contrary, the burden was upon the relator to show the error, if any, of the comptroller.

After a careful examination of the papers submitted to us and the evidence taken in the case, we find it impossible to say that the relator established the fact that the valuation placed upon- its stock by the comptroller was greater than the average price which said stock sold for during the year allowed. The only witness who testified before the comptroller was Mr. Longyear, auditor of relator, and produced by it as a witness. He, swore'that the stock sold during the year in question from 19 to 40 3-8, 19 being the lowest, and 40 3-8 the highest, sum paid for the stock; that the average market value, as shown by the quotations, during such year was 29 5-6, that being the valuation placed upon said stock by the comptroller. It is impossible, therefore, to say that the relator proved any error or mistake on the part of the comptroller in fixing the valuation of its stock. The statute prescribed that its valuation should not be less than the average price for which ■said stock sold during the year. It was shown that there had been sales of the stock of relator during that period, and its own witness fixed the average price thereof at the sum at which the •comptroller valued its capital stock. We are of opinion that the papers and evidence submitted sustained the determination made by the comptroller.

Determination of the.comptroller confirmed, and writ of certiorari •quashed, with $50 costs, printing, and other disbursements.

All concur.


author: Herrick, J.

text:
    Charles H. Fort, App’lt, v. Terrence Cummings, as Supervisor, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Legislature—Statutes.
    Where the legislature has power to enact a law, it has the power to embrace in that law everything which is either necessary or proper to make it a complete whole.
    2. Constitutional law—Special legislation.
    Where the Constitution permits and authorizes the legislature to create towns, such new towns owe their corporate life to special and purely local acts of legislation, either by the legislature of the state or the legislature of the county. And since in the creation of new towns it is necessary to provide for the election of supervisors and other town officers, such act is not a local act providing for the election of supervisors, within the meaning of the Constitution.
    3. Same.
    The prohibition of section 18, article 3 of the Constitution does not apply to acts of legislation in relation to political subdivisions of the state in existence when such acts were passed.
    4. Same.
    Chapter 975 of 1895, though it provides for the election of justice of the peace for the new town, is not an act providing for the election of justice of the peace, within the meaning of section 17, article 6 of the Constitution.

      5. Same.
    Nor is such act, though it provides for the election of members of a. hoard of supervisors for new towns, an act providing for the election of' such members, witnin the meaning' of section 18, article 3 of the Constitution.
    6. Same.
    Though the provision of such act that the justices elected shall hold office for one,[two, threb and four years, violates section 17, article 6 of the Constitution, it does not render the entire act unconstitutional, but would merely entitle all the justices elected to hold office for four years.
    7. Same—Title.
    Such act is not a local bill embracing more than one subject, within the-'meaning of section 16, article 3 of the Constitution.
    Appeal from an order denying plaintiff’s motiou for an injunction.

      James W. Eaton, for app’lt;

      Arthur L. Andrews, for resp’ts.
   Herrick, J.

In 1895 the legislature passed' an act known as chapter 975 of the Laws of that year, entitled as follows: “An act to divide the town of Watervliet, in the county of Albany, and erect the town of Colonie out of the part set off from the said town of Watervliet.” Section 1 of said act designates what portion of the former town of Watervliet shall constitute the town of Colonie. Section 2 provides that the remaining portion of said former town of Watervliet shall constitute the town of Watervliet. Section 3 provides when and where the first town meeting of the-town created by such act shall be held, and designates persons ta preside at such town meeting, and confers upon them the right to ' exercise the same powers as justices of the peace when presiding at town meetings. Sections 4, 5, and 6 provide for the officers to-be elected at such town meeting, and the terms .for which they shall hold office-. Section, 8 provides for a division of the property, both real and personal, of the town of Watervliet, between the new town .created by the act and the new towu of Watervliet; such division to be made in the manner provided by section 3 of article 1 of chapter 20 of the General Laws of the state of New York, known as the “ Town Law,” and provides for the payment, of the debts owed by the town of Watervliet, divided by this act, in the same manner. Section 9 provides that the town created by such act shall be governed by the general laws of the state known as the “Town taw,” except as otherwise provided in the act. Pursuant to'said act, the persons named therein for that purpose presided at the town meeting, and at such time there were elected a supervisor, town clerk, and four justices of the peace, being the-defendants Collins, Groat, Dayton, Woodard, Stedman and Charles Miller. The-plaintiff and appellant commenced this action, alleging that he is a taxpayer and -resident of that portion of the town, of Watervliet which, under said act, continues to be known as the town of Watervliet, and alleging that the former town of Watervliet was possessed of property to the amount of several thousands of dollars; and that the town boards of the new town of Colonie and of the new town of Watervliet propose to meet and divide such property, and apportion the same between the two-towns, as provided for in said act. He charges that the act diyiding the old town of Watervliet and creating the new town of Colonie is unconstitutional and void, and prays for an injunction restraining such town boards from meeting, dividing and apportioning such property.

Without passing upon his right as citizen and taxpayer of said town to have and maintain such an action if such act is unconstitutional, but assuming'that he has such right, I will proceed to an examination of the other questions involved. The action of the plaintiff is based entirely upon the alleged unconstitutionality of chapter 975 of the Laws of 1895. Every presumption is in favor of the constitutionality of an act of the legislature. Before an act of the legislature will- be declared unconstitutional, a case must be'made “showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the Constitution. * * * If the act and the Constitution can

be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction.” People ex rel. Killeen v. Angle, 109 N. Y. 567; 16 St. Rep. 647; Sweet v. City of Syracuse, 129 N. Y. 316-329; 38 St. Rep. 933. The appellant contends that the act is unconstitutional, because it is a local act, providing for the election of a member of the board of supervisors, and for the opening and conducting of elections, and designating a place of voting, in defiance of article 3 of section 18 of the Constitution; and also because it provides for the election of four justices of the peace for terms of one, two, three and four years, and is therefore in conflict with section 17 of article 6. of the Constitution, which provides that the electors of the several towns shall at their annual town meetings, or at such other times and in s.uch manner as the legislature may direct, elect justices of the peace, whose terms of office shall be for four years; aiid his contention is that, it being necessary for the towns to have town officers, the manner of their election'is an integral and necessary portion of the act, and that, if the portion thereof providing for their election is unconstitutional, then the whole act is unconstitutional and void; that one portion of it cannot be separated from the other. If they can be separated, so that the provisions for the town government and the election of the town officers can be separated from the erection of the town itself, that then the bill is a violation of article 3 of section 16 of the Constitution, which provides that a local bill shall embrace but one subject, which shall be expressed in the title. The argument made in support of these contentions is ingenious and forcible, but one portion of it, as will be hereafter seen, perhaps goes too far, and concedes too much. As I have before stated, the appellant concedes the power of the legislature to divide' existing towns and to create new ones. Section 5 of article 3 of the Constitution reading as follows: “Nothing in this section shall prevent the division, at any time, of counties and towns, and the erection of new towns by the legislature,”—is almost, if not quite, in express grant of such a power; although such power would exist in the legislature, unless there was a prohibition against it in the Constitution. Where the legislature has power to enact a law, it has the power to embrace in that law everything which is either necessary or proper to make it a complete whole. It can embrace-in it everything germane to the main subject of the enactment, and all necessary or proper details. As has been said repeatedly in passing upon the question as to whether a local bill embraces more than one subject, under section 16 of article 8, all matters germane to the subject expressed in the title may be included in the enactment. When the subject is fairly expressed, all matters fairly and reasonably connected with it, and all measures which will .or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to the title." Astor v. Arcade Railway Co., 118 N. Y. 93-109; 22 St. Rep. 1; Sweet v. City of Syracuse, 129 N. Y. 316-333; 38 St. Rep. 933. The same reasoning applies to the power of the legislature to pass a law upon any particular subject. It has power to include in the law anything germane to the subject.

In the creation of a new town something more is necessary than merely to provide boundary lines. A town government must be provided for, and town officers: They cannot be left to create themselves. There must somewhere be a starting point, some-method provided for electing or appointing them; and all these things—the creation of the offices, the provisions for the manner of, tilling . them—are, as stated by the appellant, integral and necessary parts of an act providing for the creation of a new town. They are germane to the main purpose of the act, they are necessary and constituent elements of any law creating a new town. This same contention was made in the case of People ex rel. Clancy v. Board of Sup's of Westchester Co., 139 N. Y. 524; 54 St. Rep. 837, where, under the provisions of a charter for the city of Yonkers, it was provided that the supervisors should be elected in a different manner from that provided for in the general law, and where it was held that the sections of the constitution prohibiting* the passage of any local bill for the election of supervisors did not apply to cities, because cities acquire corporate life by force of special, several, and purely local acts of legislature, which creates and frames them in the regular exercise of governmental functions. That the Constitution permits that mode of organization of cities, and that permission must necessarily extend to and cover all the proper subjects of a city charter, among them the division into wards, and the allowance of the supervisors in each, or in so many as may be prudent or satisfactory, and that the law that so creates and charters and organizes a city is not, within the Constitutional meaning, a local law providing for the election of members of the board of supervisors. So here the Constitution permits and authorizes the legislature to create towns; and new towns, like a city, owe their corporate life to special, several, and purely local acts of legislation, either by the legislature of the state or the legislature of the county ; and in the creation of new towns, it being necessary to provide for the election of supervisors, and other town officers, it seems to me that such act is not a local act providing for the election of supervisors, within the meaning of the Constitution. This is not the purpose of the act. It is not the act itself; it is only a detail and necessary incident of the act, but is by no means the main subject or purpose of the law.

The same reasoning applies to all the objections to the act that are made’ as being in violation of section 18 of article 3 of the constitution. The objection that that portion of the act which provides that the justices shall be elected for terms of one, two, three, and four years, respectively, is void as in conflict with section 17 of article 6 of the Constitution which provides that justices shall be elected for the term of four years, I will not discuss; for, if iny contention is correct, that the act as a whole is Constitutional, and properly provided for an election of town officers, then, if it be conceded that there was no power to shorten the term of any of them, it would follow that they were elected for terms of four years each, as the Constitution provides. The object and intent of the various provisions of section 18 of article 3 of the Constitution was to put an end to special legislation,— to have uniform general laws upon the subjects mentioned in that section. In the nature of things, that intent could not be expected to exist in relation to new political subdivisions of the state, counties, cities, and towns which are created by special acts of legislation. The evil intended by the section referred to could not exist before, or even at the time, new cities, towns, and counties came into existence. And the prohibition could only apply to acts of legislation in relation to political subdivisions of the state in existence when such acts were passed.

In construing an" act of the legislature in connection with the Constitution, that portion of the Constitution with which it is supposed to be in conflict must be read in connection with other parts of the Constitution, and all parts of the Constitution must be given force and effect; and when there is any apparent com flict between its different parts the spirit and intent of each must be looked into to see if there is any conflict in intent; >.and, if there is no conflict in spirit and intent, although there may be an apparent one in language, then there is no difficulty in giving the full effect intended by its framers to all parts of the instrument. And in giving construction to the various provisions of section 18 of article 3 the court of appeals, in a number of cases, has given a practical, rather than a literal, construction to the language used. Railroad Co. v. Anderson, 3 Abb. N. C. 437: People v. Banks, 67 N. Y. 569 ; People v. Petrea, 92 id. 128; People ex rel. Clancy v. Board of Sup'rs of Westchester Co., 139 id. 524; 54 St. Rep. 837.

The construction here indicated is a practical construction, that preserves to the legislature the full power to create new towns, and, as a necessary and integral part of that power, the power to provide for the organization of its town government. This power is, in its nature, a special power, to be exercised by special acts of legislation. And it preserves the spirit and intent of section 18 by confining it to political subdivisions of the state already in existence, and as to which, and which only, special legislation is to be feared. For these reasons, I think the order appealed from should be affirmed.


text:
    People ex rel. George Smith, App’lt, v. Board of Supervisors of St. Lawrence County, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Legislatures—Apportionment.
    Under section 5, article 3 of the Revised Constitution, the requirement for equality in number of inhabitants is mandatory, and paramount to that of convenience in arrangement, so that the division of a county in the assembly districts will be set aside where the board, in making it, sacrificed the requirement of equality in numbers to that of convenience.
    2. Same—Review op supreme court.
    The procedure in the supreme court to review an apportionment of assemblymen is governed by usage adopted by courts in similar cases, as there is no statutory regulations on the subject.
    Appeal from an order denying an application for writ of mandamus to compel the board of supervisors of St. Lawrence county to make a new apportionment and division of said countv.

      Vasco P. Abbot, for app’lt;

      John C. Keeler (A. X. Parker and John M. Kellogg, of counsel), for resp’t.
   Herrick, J.

By the Constitution which came into, force January 1, 1895, two members of assembly were alloted to the county of St. Lawrence, and it became the duty of the supervisors of said county to divide the county into two assembly districts. In June, 1895, the board proceeded to perform such duty. The First district was made to consist of the towns of Oswegatchie, Waddington, Madrid, Lisbon, DePeyster, DeKalb, Morristown, Macomb, Hammond, Rossie, Gouverneur, Fowler, Edwards, Pitcairn, and Fine, with a population of 40,682. The Second district wás made to consist of the towns of Canton, Potsdam, Stockholm, Norfolk, Louisville, Massena, Brasher, Lawrence, Parish ville, Hopkinton, Colton, Clifton, Clare, Pierrepont, Russell, and Hermon, with a population of 39,966. For the purposes of this discussion, perhaps it is well to give the population of each of the towns of the county, excluding aliens. It is as follows:

The preceding table is taken from the statement of the division of the towns into assembly districts, and the population of each district, as made up and filed by the board of supervisors in making the division of the county into assembly districts. The relator applied for an order to compel the board of supervisors to make another and' different division of the county, claiming that the division already made is unconstitutional, that the county can be more equally'divided, and that that portion of the constitution which says “ towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts more equal in number of inhabitants, excluding aliens,” has' been disregarded; and he claims that there are a variety of divisions that can be made, under the constitution, which will more nearly equalize the population of the two districts than the present one. To illustrate, the towns of Madrid and Hermon are upon the dividing line between the districts. Madrid is in the First district, and Hermon in the Second. Madrid has a population of 1,752, and Hermon of 1,466. If Madrid- is placed in the Second district, and Hermon in the First, it will give a population for the First districts of 40,396, and for the Second of 40,252,—a difference of 144. Again, if the First district is made to consist of the towns of Oswegatchie, Morristown, Hammond, Macomb, DePeyster, DeKalb, Canton, Hermon, Gfouverneur, Fowler, Edwards, Russell, and Rossie, and the Second district of the remaining towns in the county, the population of the First district would be 40,305, and of the Second district 40,343, making a difference in population of thirty-eight. An examination of the map of St. Lawrence county will show that either of the districts so made up would be of contiguous territory, and as compact as the division made by the board of supervisors, which is now sought to be reviewed. I have given these two simply as illustrations. With the table of the population above given, and by an inspection of the map of St. Lawrence county, it will be seen that a variety of others can be made, by which contiguity and compactness of territory will be obtained, and a less difference of population between the districts had than under the present division. In and -of itself, the manner in which the case at bar is decided is perhaps of no particular importance; but, being one of the first cases under the apportionment article of the new constitution, it becomes of great importance that it be decided upon correct principles. The case is a peculiarly happy one for a demonstration of the proper principle to be applied in cases of apportionment under the new constitution, because it is absolutely of no political, or perhaps I should say of no party, consequence how St. Lawrence county is divided. The same political party will largely nrenonderate in both districts, no matter how they are made up.'

What are the true rules or principles to govern apportionments, and have they been applied in this case? The cases of People ex rel. Carter v. Rice 135 N. Y. 473; 47 St. Rep. 702, and Matter of Baird v. Board, 138 N. Y. 95; 51 St Rep. 690, and 142 N. Y. 523; 60 St. Rep. 105, have given such full historical accounts of apportionment in this state that a review of former apportion ments under former constitutions would be a useless display of learning upon that subject. The fundamental idea of all laws in relation to apportionments in this state may be said to be equality of representation; and I think the correct principle is set forth in the dissenting opinion of Chief Justice Andrews in the case of People ex rel. Carter v. Rice, 135 N. Y. 513; 47 St. Rep. 702, where he said, “It is a cardinal principle of free representative government that every elector shall have equal weight in exercising the suffrage.” While it is unnecessary here to enter into any exhaustive review of the history of the laws in relation to apportionments in this state, it is perhaps necessary, for the purpose of determining the construction we should give to the present constitution, that we refer to the constitution w-hich preceded it, and the construction given to it-by the court of last resort. Section 5-of article 3 of the, old constitution provided that:

“Members of assembly shall be apportioned among the several counties of the state, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens.”

And it further provided that:

“ The boards of supervisors in such counties as may be entitled under such apportionments to" more than pne member, * * * shall assemble at such time as the legislature making such an apportionment shall prescribe, and divide their respective counties’ into assembly districts, each of which districts shall consist of convenient and contiguous territory, equal to the number of members of assembly to which such county shall- be entitled, and shall cause to be filed .in the offices of the secretary of state, and the „ clerks of their respective counties, a description of such districts, specifying the number of each district and the population thereof according to the last preceding enumeration, as near as can be . ascertained. * * * No town shall be divided in the formation of assembly districts.”

In the case of Matter of Baird v. Board, 138 N. Y. 95; 51 St. Rep. 690, the court construed this section so far as it related to the duty of the board of supervisors, as calling for a division into districts, “as nearly may be, of an equal number of inhabitants, regard being had to the other provisions of the section.” And under such construction the court of appeals held that a discretion was vested in the board of supervisors in making the division, and that before the court would interfere with the exercise-of that discretion there must be an abuse of it “as to clearly show an open and intended violation of the constitution,” and that “ it must be a grave, palpable, and unreasonable deviation from the standard, so that, when the facts are presented, argument would not be"necessary to convince a fair man that a very great and unnecessary inequality has been intentionally provided for.” 142 N. Y. 523; 60 St. Rep. 105. The last time the Baird Oase was before the court, it refused to set aside a division of a county into assembly districts, where the difference between the different districts in a county was upwards of 6,000. Matter of Baird v. Browne, 75 Hun, 545 59 St. Rep. 640. The various apportion-meats made under the.constitution of 1846 and several amendments were the subjects of fierce contentions, and the abuses and inequalities which could be perpetrated and brought about under them, without any power of correction by the courts, are matters of common knowledge. When the constitutional convention which framed the present constitution met, one of the most interesting and important questions brought before it was that of apportionment, and there was an evident desire and intention to change the law in reference to future apportionments.

While the debates of the convention show that the manner in which it apportioned the senators and assemblymen was the subject of radical differences of opinion, and bitter partisan strife, yet there was an apparent unanimity of opinion as to the principles upon which future apportionments should be made, and as to the principles upon which boards of supervisors should proceed in dividing their counties into assembly districts. It has been laid down as a principle of constitutional construction that, “ where a clause of a constitntion which has received a settled and judicial construction is adopted in the same words by the framers of another constitution, it will be presumed that the construction was likewise adopted.” Black^Oonst. Law, 68. And I think it may be likewise laid down as a rule that where in framing a new or amended constitution, the framers of an article of the same subject-matter that is embraced in an article or provision of the former constitution which has received a judicial construction employ different language, or while employing the same language, add to it words of qualification, limitation, or restriction, it must be held that they intended to avoid the effects of the construction placed upon the article or provision as it existed in the former constitution. The abuses and inequalities which were permissible under the former constitution grew out of the discretion which the court held was vested in the legisláture and in boards of supervisors, which was only qualified by the provision that the apportionment should be “as nearly equal as may be according to the number of their respective inhabitants, excluding aliens,” and that territorially such assembly districts should “ consist of convenient and contiguous territory,” and that “no town shall be divided in the formation of assembly districts.” The new constitution, in all its provisions, shows an evident intention to reduce the discretion vested in the legislature and in fhe boards of supervisors, in apportioning senators and members of assembly, to a minimum.

Section 4 of article 3 provides—

“That each senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding alien’s, and be in as compact a form as practicable, and shall remain unaltered until the return of another enumberation and shall at all times consist of contiguous territory, and no county shall be divided in the formation of a senate district, except to make two or more such senate districts wholly in suc'li county. And no town, and no block in a city enclosed by streets or public ways, shall be divided in the formation of a senate district; nor shall any district contain a greater excess in population over an adjoining district in the same county, than the population of a town, or blocks which, from their location may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excludings aliens.”

Section 5 of the same article provides that the members of assembly—

“Shall be apportioned by the legislature at the first regular session after the return of every enumeration, among the several counties of the state, as nearly as may be according to the number of their respectice inhabitants.”

It then provides for the method of apportioning the members of assembly among the different counties of the state, providing a mathematical process,' intended to reduce the discretion of the legislature, if there is any discretion left, to a minimum. It further provides that in counties entitled to more than one member the board of supersiyors shall—

“Divide such counties into assembly districts as nearly equal in number of inhabitants, exclusive of aliens, as may be, of convenient and contiguous territory, and in as compact form as practicable. , * * * No town, and no block in a city enclosed by public ways, shall be divided in the formation of assembly disr tricts, nor shall any district contain a grefffcer excess in population over adjoining district in the same senate district, than the population of town or block therein, adjoining such assembly district. Towns or blocks which from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants.”

It will be observed that the fundamental principle is a division of the senate and assembly districts equally among the people. The only limitation upon the complete fulfillment of that principle is the prohibition against the division of counties and towns. It will be noted that nearly all the provisions of tjaese sections of the constitution that differ from the provision of the old constitution are for the purpose of compelling equality of representation, and to make the assembly districts as nearly equal as possible in the number of inhabitants. Under other constitutions it had been found that the simple requirement to divide into districts “as nearly equal in number of inhabitants as may be” would permit a “gerrymander," so called, by composing districts of irregular and even detached portion of the territory to be divided. To prevent that there have been incorporated into the Constitutions of this and other states the words, “of contiguous and convenient territory,” or other words of like import. Under that, districts were formed in which, while the population was nearly equally divided, yet it was grouped in such a way that while the territory was contiguous, and might be said to be convenient, the party in the minority in the locality divided had an equal or greater representation than the majority, or the localities containing ’the majorities of one party were grouped in a single district, as is illustrated by the well-known “ Shoe-String District,” so called, of Mississippi,—a district extending 300 miles or more along the Mississippi river, and extending back a distance of only twenty railes, The territory of the district ¿vas contiguous, and it could be said to be convenient, because the river afforded a natural and ready means of access from one part of the district to the other, and afforded a convenient means of communication between the inhabitants of the different parts of the district; but at the same time it accomplished the placing together the great body of those of one political faith in a single district, when, if divided up, and thrown into different congressional districts of the state, their numbers, being thus distributed, would have produced districts more evenly divided politically between the great political parties. By this means a political party was enabled to gain a representative, to which its numbers did not entitle it. It was found that under the Constitution in existence in this state prior to January 1, 1895, irregular districts could thus be formed, there being no requirement in our Constitution that they should be compact. In re Baird, 142 N. Y. 527; 60 St. Rep. 105. Those who formed them would allege reasons of convenience of communication, etc., which the courts did not feel that they were at libertjq under the then requirements of the Constitution, and the discretion that they held to be vested either in the legislature or in boards of supervisors, to review and. correct. To stop that abuse, it will be observed that in the present Constitution has been placed the requirement of compactness, so that territorially, the districts are required to be “ of convenient and contiguous territory, and in as compact form as practicable.” If the requirements as to apportionment were left at that, there would still be an opportunity for the exercise of discretion that would produce inequalities of representation, when measured by the number of inhabitants in each district; and, to reduce that discretion to a minimum, the further provisions were brought in that no district should contain a greater excess in population over a district in the same senate district than the population of a town or block therein adjoining such assembly district; and, to minimize it still further, we have the following clause:

“ Towns or blocks which, from their location, may be included in either of two districts, shall be sp placed as to make said districts most nearly equal in number of inhabitants.”

Thus the whole intent, it will be seen, of the changes affected by the provisions of the new Constitution in relation to apportionment, is to force, as far as possible, an equal division of the people into assembly districts, so as to produce an equality of representation, and give to every elector an equal weight in the election of members of the legislature. That being the intent of these provisions of the Constitution, I think the clause, “ towns or blocks which, from their location may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants,” is mandatory, and that the word “ shall ” is there used in the sense of “ must.”

The court below, in denying the application of the relator, was governed largely, if not entirely, by the cases heretofore decided in the court of last resort, under former Constitutional provisions ; but the changes that hatfe been made by- the new Constitution, and the reasons oE those changes, render the cases heretofore decided no longer of importance, except as historical discussions of the subject, and for the general principles which they lay down applicable to all systems of apportionment, but they are no longer precedents to be followed, but only -precedents to be avoided, and illustrations of what ought not to be done under our existing constitution, because, as heretofore stated, the changes that were made in the Constitution were made for the" very purpose of preventing the doing of that which the courts held could be legally done under the old Constitution. It is a general rule in.the interpretation and enforcement of Constitutions that full force and effect shall be given to each word, clause, and requirement. Sometimes, however, it is impossible to strictly comply with this rule. One word, clause, or requirement may be modified by another, or those of minor importance may have to be subordinated to those of greater. In making apportionments and divisions o£ counties under a Constitution with so many requirements, it is obvious that it must frequently happen that all the requirements of the Constitution cannot be strictly complied with; that there will be a conflict, or seeming conflict, between them; and that a preference must be given to some over the others. In such cases those of less importance must give .away to those of greater; weight must be given to those requirements that are of primary importance. Of course, there are some requirements in the division of counties .that are imperative, and as to which there is no discretion. Those are the prohibition against dividing towns or blocks, and the requirement that no district shall contain a greater excess in population over an adjoining district in the same senate district than the population of a town or block therein adjoining such assembly district, and that towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of. inhabitants. These provisions seem to be mandatory, and can, so far as I can see, all be strictly complied with. As to the other requirements, and as to which there may be some discretion, where there is ány conflict, or difficulty in carrying them all into effect, preference must- be given, as I have before stated, tó those of primary importance. . They cannot stand upon an equality. These principles have not been followed in making the division now under review. Confessedly, that part of the Constitution requiring towns or blocks which, from their location, may be placed in either district, to be so placed as to make said districts most nearly equal in number of inhabitants, has not been complied with; and it has not been complied with because it' is alleged to be more convenient to arrange them without regard to such requirement. And the argument made before us in behalf of the respondent was almost entirely confined to the question of convenience, and the propriety of the transposition of the towns of Madrid and Sermon from one district to the other, without paying any attention to other changes that might he made which would produce more nearly an equality of inhabitants between the two districts.

The affidavits read by the defendant set forth : That the county of St. Lawrence is the largest in area of any county of the state, and that parts of it are sparsely settled, and that in dividing' it into two assembly districts the supervisors not only considered the number of inhabitants which should be contained in each district, but also the convenience of the territory thus divided. The town of Hermon, placed in the Second district, and which relator insists should have been in the First, is within three-quarters of an hour’s ride by carriage from Canton, also placed in the Second district. Canton is the county seat of said county, and, in the future, political conventions of such Second district would naturally be held there. The citizens of the town of Hermon generally go to Canton for the purpose of transacting their trading, banking, and other business. That the town of Hermon has no railroad running through it, arid no convenient means of ■communication with the towns in the First assembly district, and the inhabitants of said town desired to be in the Second district. That the town of Madrid, which in said apportionment was put in the First, and which relator claimed should have been put in the Second, assembly district, has. a convenient communication with the city of Ogdensburg and other towns of the First district, and no such means of communication with towns placed in the Second assembly district, and its supervisor, representing the town, desired that it be placed in the First district. That the apportionment as made was -most convenient for the inhabitants residing in said two towns and was desired by them. That, after due and careful consideration of the matter, the supervisors reached a conclusion, after taking into account the questions of convenience and the number of inhabitants in each district, that the division as made inflicted the least hardship on the various towns and the inhabitants thereof, and conformed most nearly to the constitutional requirements of any division that could be made. These reasons for not dividing equally as to population seem to me trivial. There is no pretense of any lack of common interest. There is no pretense that their political rights cannot be exercised as well in one district as in another. They will all vote at their election district in their respective towns, but it is asserted that the present division is more convenient ' for attending assembly district conventions, which it is assumed will in the "future be held in the localities stated and if so held, while certainly convenient for the towns of Hermon and Madrid, are just as certainly inconvenient for the majority of the other towns, because the localities where it is ,assumed such conventions will be held are in each instance not in the center, or anywhere near the center, either territorially or in population, of either of such districts, but in one of the boundary towns. But, assuming that this division is the most convenient, convenience is not superior to nor upon a parity with equality of representation. That is the prime consideration. To give convenience of location any preference over population is to ■invert the true position of those requirements of the court to take, and, to use an old expression, is “to put the cart before the horse.” To place it upon the same level, to give it the same importance, as those portions of the constitution requiring an equal division of the inhabitants, is to sacrifice substance to ease, and is to belittle the fundamental principles of free representative government,—equality of representation, and “equal weight in exercising from the purpose it was intended to subserve, and open the door for an exercise of discretion uncontrollable by the courts, and under which representation by the people may be juggled with, and a majority given a greater voice than it is entitled to, or a minority given an equal and perhaps superior voice to the majority. These things cannot be absolutely prevented, but the danger of them may be minimized. An absolutely equal division, based upon population, is not practicable, when neither counties nor towns can be divided, but, so far as it can be produced under the law, it should be compelled. It is true that the difference in population between the two.districts is small, compared with the differences that have been heretofore permitted in the division of counties into assembly districts, but by a strict compliance with the constitution it may be made much smaller. If the argument of convenience is to prevail in this case, and we are to continue to hold that it is in the discretion of the supervisors, for the sake of what they declare to be the convenience of the people, to disregard the provision of the constitution, which says “towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants,” then there is no reason, for the sake of convenience, why that other provision of the constitution, that “no town or block" in a city enclosed by streets or public ways, shall be divided in the formation of a senate district,” should not be disregarded, nor the further provision, “nor shall any district contain a greater excess in population over the adjoining district in the same county, than the population of a town or \block therein adjoining such district,”should not also be disregarded by them. If convenience is to be paramount, or placed upon an equality, even, with these provisions,—if we are to hold that we will not enforce a strict compliance with the requirements of the constb tution because there is a difference of only 716 between the districts, when by a compliance with it the difference may be much slighter, —where are we to stop, and how great must the difference be be-' fore the courts will act ? If, in the exercise of their discretion, and upon the ground of convenience, we are to hold that because they are made, under the constitution, the body to divide the county, and possibly vested with some power in so doing, we will not correct their action, then we revprt back to the construction placed upon the discretion of boards of supervisors in making such division in Re Baird, 142 N. Y. 523; 60 St. Rep. 105, where differences between assembly districts of nearly 6,000 were permitted to stand, because it was held it was not such an abuse of the discretion of the board that the court would reverse .their action. To permit this is to render ineffective and nugatory tlie provisivions of the new Constitution in relation to towns and blocks, which I have quoted.

The provision of section 5 of article 3 that no assembly district shall “ contain a greater excess in population over the adjoining district in the same senate district, than the population of the town or block adjoining such assembly district,” and that towns or blocks which, from their location, may be included in either of two districts, shall be placed so as to make said districts the most nearly equal in number of inhabitants,” were placed in the Constitution for the express purpose of compelling and enforcing an equal division according to population, and to provide for equality of representation, and, as said before, that was the fundamental idea which caused the changes from the old Constitution; and to carry that idea into effect, and to enforce the true principle of apportionment, those provisions must be held to be paramount to the one providing for convenient territory, as that has formerly been construed by the courts of the state. It follows from this that the order appealed from should be reversed, and an order granted directing the board of supervisors to redistrict the county of St. Lawrence pursuant to the principles herein set forth.

It is said that an order of this kind made by the court may eventually result in the courts’ making apportionments, instead of the legislature and boards of supervisors; that, when courts have once made an order compelling a redivision, one "apportionment after another may be set aside, until one is compelled that meets the views of the court. That possibly may be true, but it will be time enough to cross that bridge when we come to it. Courts have heretofore been very chary in interfering with apportionments made by the legislature or by boards of supervisors, because the power of apportionment was by the Constitution vested in the legislature and boards of supervisors, and they were the sole and only authorities to make such apportionments, and were necessarily vested with a discretion with which the courts would not interfere, except in cases of gross and palpable abuse. Apportionments were also considered, to a large extent, as legislative and political acts, with which the courts, not being expressly authorized so to do by the Constitution, would not interfere, except in case of an abuse so palpable and evident that such legislative body might be said to have exceeded and gone beyond the powers conferred upon it by the Constitution. But the new Constitution has made a radical change in that respect. Section 5 of article 3 provides that “an apportionment by the legislature, or other body, shall be subject to review by the supreme court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe.” However people may differ as to the wisdom of this provision of the Constitution, however much we may regret that the courts have been made a part of the machinery of the state for the purposes of apportionment, it has been imbedded in the Constitutionand the duty is imposed upon them of taking part in such proceedings, when called upon to do so, and it is a duty they cannot shirk. The legislature has made no regulations under which the power of review may be exercised, but iis failure t<> do so does not deprive the court of the power conferred by the Constitution. The failure of the legislature to prescribe rales of practice simply leaves the court to exercise the power conferred according to the usage of the courts in similar cases when no express rule or statute is provided for its procedure. The will of the people that such power shall be exercised cannot be nullified by a failure of the legislature to provide a procedure regulating the manner of its exercise. No objection is made in this case as to the manner in which it is sought to review the proceedings of the board of supervisors, and the court, having acquired jurisdiction, will act without regard to the mere form of the proceedings. When a power is conferred for' the benefit of the public, the exercise of that power, when properly called upon as the law requires, becomes a duty ; and the language by which authority to exercise the power is conferred must be construed, not merely as permissive but as mandatory. A citizen of St. Lawrence county brings this suit, asking us to act in the premises. That is all that is required by the Constitution to give the court jurisdiction. It does not seem to me necessary at this time to attempt to define the full extent of the power conferred upon the court by the words, “shall be subject to review by the supreme court.” But it seems to me that it is much more than the power heretofore exercised by mandamusÍ The power to review an apportionment is surely something more than the power to determine whether the apportioning body has exceeded the power conferred upon it by the Constitution, and directing such body to proceed anew, which could be done, but was in effect all that could be done, under the old Constitution, by mandamus,—a mere order to compel official action, without power to indicate what it should be. The power to review is valueless, unless under it is included the pow’er in the reviewing tribunal either to correct the errors it discovers, or to send the proceeding back to the body whose proceedings are being reviewed, that it may correct them. The court will not, however, except as a last resort, attempt either to define or exercise the full measure of the power conferred upon it by the Constitution., The good sense of those whose duty it is, in the first instance, to make apportionments, will be relied upon to correct the errors pointed out by the court, without its giving such specific directions as to how the corrections are to be made as would in effect be an apportionment by the court.

In this case neither the letter nor spirit of the Constitution has been complied with, and an order should be made vacating and setting aside the apportionment and division of assembly districts in St. Lawrence county, and directing the board of supervisors to make a new one.

Putnam, J., concurs in result.


author: Pratt, J.

text:
    Irene E. Storm, by Guardian, etc., Resp’t, v. Jacob L. Vandenburgh et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Equity—Complaint—Remedy at law.
    A complaint in equity need not contain an allegation that the plaintiff has no adequate remedy at law.
    3. Same.
    An action for damages against a trustee, though solvent, is not such an adequate remedy as to oust equity of jurisdiction of an action against him hy the cestui que trust to set aside the sale of land.
    Appeal from an interlocutory judgment overruling a demurrer to the cord plaint.

      Hector M. Hitching, for app’lts;

      Josiah T. Marean, for resp’t.
   Pratt, J.

The appellants object to the complaint that it contains no allegation that the plaintiff had no adequate remedy at law. No such allegation is necessary. When the case made by the complaint sufficiently shows the need of an equitable remedy, the only'benefit from an allegation that such relief was requisite will be to call attention to a fact which already sufficiently appears. In the present case the complaint avers the destruction of a trust in which the plaintiff has a contingent interest. There being no allegation that the trustee is insolvent, the defendants suggest that an action'for damages against the trustee is an adequate remedy. In order to oust the equitable remedy, the legal remedy must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Boyce v. Grundy, 3 Pet. 210; Arthur v. Oakes, 11 C. C. A. 209; 63 Fed. Rep. 328. Or, as expressed by Fuller, O. J., in Kilbourn v. Sunderland, 130 U. S. 505, 514, the jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy in equity. In other words, the suitor is entitled, not only to an adequate remedy, but to the best remedy, which must depend on many considerations, as to which the suitor is in general the best judge. Under any other rule the rights of the suitor will often, while ostensibly protected, practically be sacrificed, and he will get the shell of protection and lose the substance. To sum up, in any given case the suitor is entitled to avail himself of the best-remedy afforded by either law or equity, and in the price he may proceed to protect the fund, and will not be remitted to an action at law against the trustee. As pointed out in the opinion below, a contingent remainder is a right which courts recognize and will protect.

Judgment affirmed, with costs.


text:
    Abram A. Demarest, as Receiver, etc., App’lt, v. Isaac E House et al., Resp’ts.

      (Supreme Court, General Term. Second Department,

      Filed December 2, 1895.)

    1. Fraudulent conveyance—Purchasers in good eaith.-
    The fact that the motive of the grantor in making a sale is to prevent itis -wife from receiving any alimony in any suit she might commence therefor, will not invalidate the sale unless such fact is known to the grantee and he participates in the fraud.
    3. Samb.
    The fact that the wife does not sign the deed is not a material fact to put the grantee upon inquiry as to the right or motives of the husband in making the conveyance.
    Appeal from a judgment dismissing the complaint.

      Garrett Z. Snyder, for app’lt;

      A. S. Tompkins and Frank Comesky, for resp’ts.
   Pratt, J.

This is an appeal from a judgment in an equity action entered upon a dismissal of the complaint at a trial at special term. Isaac B. House and Melissa'House were husband and wife, and prior to December, 1893, had lived together in Nyack. The relations between Isaac B. Honse and his wife for years had been unfriendly, and this fact was not concealed. After the death of-the father, which occurred in August, 1891, there were negotiations between these parties, with the assistance of their respective attorneys, looking towards some settlement of their differences, and some provision for the support of the wife and child. While these negotiations were still pending, Isaac E. House suddenly left Nyack, and has never returned. After his departure, an action for limited divorce was commenced by his wife, and summons served upon her husband by publication. She applied in the meantime for temporary alimony, and this, as well as a moderate counsel fee, were awarded her by an order of this court. Subsequently, on showing inability to collect this alimony, the court appointed the plaintiff a receiver of the property of her husband. Prior to the time of his leaving Nyack, Isaac B. House was the owner of certain real estate, consisting of a house and lot on West Thirty-first street, in New York city, a house and lot 'on Burd street, Nyack, and a house and lot on Franklin street, Nyack. These properties were, at the time of the death of the father, unincumbered, and were producing a revenue. On the 6th of December, 1893, it appears that Isaac B. House executed a deed of the New York property to the defendant William H. Bleeker, his cousin by marriage, and took back from him a mortgage for $8,000; and on the 15th of December, he executed a deed of his Nyack properties to James R. Comesky, brother of his attorney, who executed two mortgages thereon,—one to Hannah B. Wool for $1,200, and one to Isaac B. House for $1,500 After the receiver was appointed, he attempted to collect the rents of this property, and failed, because of the fact that the tenants had been instructed to pay rent to the parties who had the deeds. He then applied for leave to bring this action to set aside those conveyances, as having" been made in fraud of the rights of Melissa House, or, in the event of the inability to set aside the deeds, to impound the mortgages given back to Isaac B. House at the time of thctransfer. The $8,000 mortgage upon the New York property, with the bond, were in the possession of Isaac B. House. He also had the bond of $1,500, made by James R Oomeslcy. The mortgage to secure this bond is in the possession of the plaintiff as receiver, having been obtained by him of the clerk of Rockland county, with whom it had been left.

At the time the conveyances were made to the defendants, no suit had been commenced for a separation, and there is no proof that either defendant knew or suspected that any such suit was to be brought; neither is there proof that either defendant did not pay a fair price for the property. Assuming, even, that the motive of Isaac E. House in making the sales was to prevent his wife from receiving any alimony in suit she might commence therefore, that fact would not invalidate the sales, unless the fact was known to the grantees, and they participated in the fraud. It is not necessary to discuss the other. questions raised by the appellant, as there was an utter' failure of proof to impeach the transactions, or to show that defendants were not hona fide purchasers.

The fact that the wife did not sign the deeds, under the circumstances, is not a material fact to pqt the defendants upon inquiry as to the right or motives of the husband to make the conveyances. It does not appear from the case that any.other relief was demanded upon the trial than that the deeds should be set aside as fraudulent.

Judgment affirmed.


text:
    Richard Hannigan, Resp’t, v. Lehigh and Hudson River Railway Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Negligence—Contributory.
    Whether a printed rule of a company, which requires the use of a coupling stick, is a live rule, or has ceased to be in force, and, consequently, whether a brakeman is negligent in making a coupling without such stick, is a question for the jury, where there is evidence that the rule has never been enforced and that brakemen applying for such sticks at the company’s storehouse had been unable to procure them.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      John J. Beattie, for app’lt;

      John W. Lyon, for resp’t.
   Pratt, J.

The objection chiefly urged against the judgment is that the plaintiff was guilty of contributory negligence, in failing to use a coupling stick. The rule of the company, printed on the back of the time-table, required their use, and stated that they could be procured at Warwick. But it was proved that the rule had never been enforced, arid that brakemen who had applied for them at the storehouse had been unable to procure them. On the testimony the court properly left it to the jury to say whether the rule was a live rule, or whether it had ceased to be in force. Hages v. Bush & D. Manufacturing Co., 41 Hun, 407; 3 St. Rep. 136. The verdict was not excessive. Wooster v. W., N. Y. & P. Railway Co., 40 St. Rep. 844. Ho other question requires discussion.

Judgment affirmed, with costs.


text:
    Henry J. Clark, as Executor, etc., Resp’t, v. Cecelia Frances Clark, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Trial—Motion fob verdict.
    A party, by moving for direction of a verdict, does not thereby lose the’ right, on denial thereof, to go to the jury.
    Appeal from a jugment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Lemuel Skidmore, for app’lt; Quigley & Farrar, for resp’t.
   Pratt, J.

—The complaint alleged that Eliza Clark died possessed o£ a certain bank book. This was denied by the answer, and the issue thus made was the only question in dispute. The defendant produced several disinterested witnesses who testified that, several years before her death, Eliza Clark gave the book in question to the defendant. Their testimony was not shaken in any respect, and defendant’s motion for the direction of a verdict in her favor should have been granted. After that motion was denied, defendant askecj to be allowed to go to the jury. The circuit judge held that, by moving for the direction of a verdict, defendant had lost the right to go to the jury. That was an error. , When the motion to direct a verdict in defendant’s favor was denied, defendant properly requested to go to the jury. Koehler v. Adler, 78 N.Y. 290 ; Thompson v. Simpson, 128 id. 283; 40 St. Rep. 164; Yale v. Dart, 86 id. 40.

* For these errors the judgment must be reversed, and a new trial ordered; costs to abide event.

All concur.