author:
BROWN, P. J.:
      DtKMAN, J.:

text:
    John Adamson, Respondent, v. The Nassau Electric Railroad Company and Others, Appellants.

      Municipal corporation — has no private estate in its streets — the control of streets for railroad, purposes is in the Legislature subject to the Constitution — Brooklyn charter, superseded by sub. 4 of § 4 of chap. 565 of 1890 — action under chap. 301 of 1893 — when it cannot be maintained, — street railroad franchises — when the action of city authorities in granting them cannot be reviewed by the court.

    A municipal corporation has no private estate or interest in the public streets ■within its borders. While it is said to hold the title to the bed of the streets its title is that of a trustee for the people of the whole State. The absolute control of the streets and the direction as to their use is in the Legislature.
    The constitutional provision which requires the consent of the local authorities to the construction and operation of a street railroad has not abridged this legislative power. The Legislature may still grant the use of the streets of a city for the construction of a street railroad subject only to the condition that the consent of the local authorities be obtained before tbe road is constructed or operated. The franchise proceeds from the Legislature, and the obtaining of the consent of the local authorities is the performance of a condition without which the road cannot be constructed.
    A city has no power to alienate or appropriate the city streets and has no property rights therein, and the provision of the statute authorizing an action to prevent a waste of the estate and other property of a municipality refers to property owned by the city and within its power of disposition.
    The charter of the city of Brooklyn declaring it unlawful to grant the right to construct a street railroad, except to the person who will agree to carry passengers upon sueh railroad at the lowest rate Of fare, was superseded by the General Railroad Law (Subd. 4 of § 4 of chap. 565 of the Laws of 1890), which declares that every railroad corporation has the power to construct its road across, along or upon any highway which the route of its road shall intersect or touch, subject to the limitations and requirements of that chapter; that such, was the legislative intention is made apparent by the amendment of section 93 of chapter 565 of the Laws of 1890 (the General Kailroad Act), by chapter 434 of the Laws of 1893.
    In the review of a legislative act the courts are confined to the consideration solely of the question of power.
    In an action brought under the provisions of chapter 301 of the Laws of 1892, by a taxpayer of the city of Brooklyn to have certain grants of franchises for the operation of electric street railways declared null and void, the trial court found that the franchises were granted for a less sum than could be secured for them in the exercise of reasonable diligence, and that the granting of such consents for such less sum was a fraudulent act, and that, consequently, the franchises were given in bad faith, and as a matter of favoritism to the companies who obtained them.
    There was no allegation in the complaint, nor was it claimed, that the aldermen who granted the franchises were corrupt, or that the consents were the product of corruption.

      Held, that there was no provision of law which required that in the city of Brooklyn the right and privilege of using any street for the purposes of a street railway should be sold to the highest bidder;
    That it was entirely discretionary with the local authorities whether they would require as a condition precedent to the granting of the consents the payment into the treasury of any portion of the gross receipts of the railroads to be constructed and operated therein;
    That as all the proceedings before the common council were regular, and no formality requisite to its final action was omitted, the grant was a valid exercise of the legislative power, and as such was not within the province of judicial review;
    That the mayor and common council of said city, in enacting the resolution complained of, exercised a part of the sovereign power of the People of the State, and, however unwise tneir action, and whatever the motive might have been which led to the passage of the resolution, the courts had no power to arrest its execution.
    Appeal by the defendants, The Nassau. Electric Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from the decision made by the justice presiding at the trial of the action, filed on the 13th day of May, 1895, upon.which.the judgment was founded.
    The action was brought by a taxpayer of the city of Brooklyn, under chapter 301 of the Laws of 1892, to have certain grants of franchises for the operation of electric street railways declared null and void on the ground that the common council of said city granted said franchises for a less sum than could have been secured for them in the exercise of reasonable diligence, and that such action on the part of the common council was wasteful and injurious to the property, funds and estate of the city.

      Jewries G. Olmreh and John J. Allen, for the defendant railroad companies, appellant.

      F. L. Baeleus, for Coffey, appellant.

      Grout, Be Fere & Mayer, for the respondent.
   BROWN, P. J.:

The decision of the learned judge who heard this ease at the Special Term is that “ the court has found that such consents were granted by the common council of the said city fraudulently and as matter of favor to the defendant companies, and for a less sum than could be secured for them in the exercise of reasonable diligence.”

There is no allegation in the complaint that the aldermen were corrupt or that the consents were the product of corruption, and the learned counsel for the plaintiff, upon the argument, expressly disavowed any claim to uphold the judgment upon that ground. An examination of the complaint and the testimony shows that the theory upon which the action was tried and decided was that the granting of the consents to the defendant companies “ for a less sum than could be secured for them in the exercise of reasonable diligence ” was a waste of the city property, and in that sense a fraudulent act, and that such is the sense in which the term fraudulent is used in the decision will appear from the allegations of the complaint and the opinion of the judge who tried the case.

The material allegations of the complaint are that the Union Street Railway Company, in or about the months of June or July, 1892, offered to compensate the city for the fair market value of “ the right to construct and operate a railroad through the said streets,, such compensation to be fixed by the common council aforesaid or determined by a sale thereof at public auction.” That in May, 1893, it in substance repeated said offer. That in June, 1893, it requested the committee “ to fix and announce the terms and conditions upon which the grants of the consent of said city * * * would be made, so that competitors therefor might be properly informed and enabled to frame their bids.” That it offered to pay for such grant certain named sums per mile, and requested if any -other or better offer was made it be informed thereof, “ so that it might increase its money offer, and bid in conformity with such other proposition.” That the common council “ wrongfully * * * in violation of their official duties * * * and illegally and in waste of the property, funds, effects and estate of said city,” passed the resolution complained of.

It is further alleged “ that the right to construct, operate and maintain a street surface railroad over the said streets and avenues is a valuable right, part of the property, funds and effects of the city of Brooklyn, for which more could be realized by said city than is provided for in said resolutions,” and “ that by the Constitution .and laws of this State the granting of the said right to construct and operate a railroad on the said streets was vested in the mayor and common council * * * for the said city, and in order that such grant might be made for the best attainable price and for the pecuniary advantage of the said city, * * * and the said power and right to make such grant was part and parcel of the property * * * of the said city, and could not be lawfully awarded for a price while any one was ready to pay a better price therefor.”

The opinion states that the two propositions of fact essential to be established by the plaintiff were: “ (1) That the franchises were granted for a less sum than could be obtained from a competing company; (2) that such franchises were given in bad faith and as a matter of favoritism to the defendant companies.” It is evident from the opinion delivered at Special Term and from the argument of counsel for the plaintiff that the decision was based upon the case of Adamson v. Union R. R. Co. (74 Hun, 3). That case may .stand as an authority for the interference of the courts with municipal affair’s upon the precise facts there existing, but if it is to be deemed an authority that the courts may, in a taxpayer’s action, restrain the execution of ordinances and laws passed by municipal .authorities in matters committed by the Constitution of the State to their judgment and discretion, it is in conflict with well-settled principles of law, and I shall, in this opinion, endeavor to show that the act of the municipal authorities of the city in granting the consents to the defendant companies violated no provision of law, and was a valid exercise of power, and, being legislative in its character, is not subject to the review of the courts.

The facts which will permit the maintenance of an action by a taxpayer against municipal officers, and authorize the courts to interfere in the administration of municipal affairs and restrain officials within the limits of tlieir powers, are quite well settled by recent decisions of the Court of Appeals.

In Talcott v. City of Buffalo (125 N. Y. 280) the court said: “We have referred to the origin of this statute under which the action is brought, the title of the act of 18T2, and the language used by the Legislature subsequently, when re-enacting it in 1881 and 1887, for the purpose of ascertaining whether it was intended to authorize a taxpayer to maintain an action against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining officials acting within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we are of the opinion that it was not. Full force and effect can be given to the statute by confining it to a case where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud, is charged.” And in Ziegler v. Chapin (126 N. Y. 342) it was again said: “We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.”

In Talcott’s case the acts sought to be enjoined were within the power and discretion of the common council, but were not charged to have been corrupt or dishonest. A demurrer to the complaint was sustained and the suit dismissed. In Ziegler’s case an injunction was sustained on the sole ground that the contact entered into by the city officials was illegal and void.

The decisions in the cases cited followed logically the rule that, in the review of a legislative act, the courts are confined to the consideration solely of the question of power.

In People ex rel. Wood v. Draper (15 N. Y. 533), after referring to tbe constitutional restraints upon legislation, 'Judge DeNIO said : “ If a particular act of legislation does not conflict with any of the limitations or restraints which hare been referred to, it is not in the power of the courts to arrest' its execution however unwise its provisions may be or whatever the motives may have been which led to its enactment.”

In People ex rel. McLean v. Flagg (46 N. Y. 401), in speaking of the power of the courts to correct legislative abuses, Chief Judge Church said : But when power is conceded we have no right to inquire into the motives or reasons for doing the particular act.”

Such is the universal rule arising out of the form of our government and settled by a long line of authorities, and it is fully applicable to the review of acts of municipal corporations done in the exercise of governmental powers. Judge Cooley, in his work on Constitutional Limitations (*p. 209), says: “ And the same presumption that legislative action has been devised and adopted on adequate information, and, under the influence of correct motives, will be applied to the discretionary action of municipal bodies and of the State Legislature, and will preclude, in the one case as in the other, all collateral attack.” And in Milhau v. Sharp (15 Barb. 212), in speaking of the power of the common council of the city of New York, it was said : As far as its acts in the exercise of its public political powers and within the limits of its charter, it is vested with the largest discretion, and whether its laws are wise or unwise, whether they are passed from good or bad motives, it is not the province of this court to inquire.”

That in granting the consents to the defendant companies the mayor and common council were exercising a legislative power is too plain to require argument. The power to grant or withhold consent to the construction of a street railroad does not emanate from the Legislature, but is devolved upon the municipal authorities by the Constitution. (Art. 3, § 18.) The provision of the Constitution is a restriction upon the Legislature and forbids the enactment of any law authorizing the construction or operation of a street railroad, except upon the consent of the local authorities having control of the street or highway upon which it is proposed to construct the road. The power thus given is governmental, and to the extent that it is held and exercised, the local authorities are clothed with sovereignty, and are as independent in its exercise as is any other department of tbe government, and, in my judgment, tbe courts can no more inquire into tbe motives which governed or controlled tbe lawful exercise of tbe power than they can inquire into the motives which induce tbe governor to give bis assent to an act of the State Legislature. Tbe only question, therefore, which the court was permitted to investigate and decide in this case, was whether the granting of the consents to the defendant companies was a legal act. As I have already pointed out, the plaintiff alleged it to be illegal, and this assertion was founded upon the allegation (1) that the power to make such grant was a part of the property of the city, and (2) that it could only be awarded to the person offering the highest price therefor.

"Whether the right to grant consent to the use of the streets can be deemed the property of the city within the meaning of the acts of the Legislature authorizing taxpayers’ actions, would seem not to be a very pertinent inquiry in view of the constitutional provision empowering the common council to do the very thing complained of. But the contention that the right to grant the consent to operate a street railroad is property of the city cannot, I think, be sustained. The law is quite well settled that a municipal corporation has no private estate or interest in the public streets within its borders. While it is said to hold the title to the bed of the streets, its title is that of a trustee for the people of the whole State. This was expressly decided in People v. Kerr (27 N. Y. 188), it being there said by Judge Weight that the trust of the city was publiei jtvris, held not for the benefit of the people of the city alone, but for the people of the whole State, as the agent of the State and a part of its governmental machinery, and Judge Ehott, in the same case, speaking of the title of the city of New York to the streets and the power of that corporation over the same, said: “This is a trust for the benefit of the public, not of the adjacent proprietors alone, nor of the inhabitants or citizens of New York alone, but of the whole people. * * * The title thus vested in the city of New York is as directly under the power and control of the Legislature for any public purposes as any property held directly by the State or by any public body or officer, and its application cannot be challenged by a corporation which in respect to such property, at least, is a mere agent of tbe sovereign power of the people.” This rule has, since that case was decided, repeatedly been stated by the Court of Appeals.

The absolute control of the streets and the direction as to their use is in the Legislature. The constitutional provision which requires the consent of the local authorities to the construction and operation of a street railroad has not abridged this legislative power. It has only qualified or regulated it. The Legislature may still grant" the use of the streets subject only to the condition that the consent of the local authorities be obtained before the road is constructed or operated. The franchise proceeds from the Legislature, and the obtaining of the consent of the local authorities is the performance of a condition without which the road cannot be constructed. (Matter of 34th Street R. R. Co., 102 N. Y. 343.)

The city has no power to alienate or appropriate the city streets, and has no property rights therein, and the provision of the statute authorizing an action to prevent a waste of the estate and other property of a municipality plainly refers to property owned by the city and within its power of disposition.

We thus reach the question whether the common council was bound to grant the consents to the person offering the highest price therefor. The plaintiff strenuously insists that it was, and as one ground for declaring the consent void has referred us to a provision of the charter of the city, first enacted in 1861, declaring it unlawful to grant the right to construct a street railroad except to the person who should agree to carry passengers on such railroad at the lowest rate of fare. We are of the opinion that this provision of the charter is superseded by the General Railroad Law (Subd. 4 of § 4 of chap. 565 of 1890), which declares that every railroad corporation has the power to construct its road across, along or upon any highway which the route of its road shall intersect or touch, subject to the limitations and requirements of that chapter. That the Legislature intended this act to do away with all provisions of local laws is, we think, very plain, and is especially made so by the amendment of section 92 by chapter 434, Laws of 1893. The validity of a street railroad franchise is, therefore, to be determined under the Railroad Law as limited by the provisions of the Constitution heretofore referred to. There is no provision of the Railroad Law which .requires that, in the city of Brooklyn, the right and privilege of using any street shall be sold to the highest bidder. The provision that such privilege shall be sold at public auction is now limited in its application to the city of New York. In the city of Brooklyn and other cities of the State, the local authorities are given the power to require the payment annually of such percentage of gross receipts, not exceeding three per cent, into the treasury of the city * * * as they may deem proper.”’ The policy of the State, in this regard, as expressed in the statute of 1886 (Chap. 65), which required as a condition. of the consent to use the streets, a sale of the privilege at public auction, has, by recent legislation, been completely reversed as to the whole State, except the city of New York. Under the present law it is entirely discretionary with the local authorities whether they will require, as a condition precedent to the granting of the consent, the payment into the treasury of any portion of the gross receipts of the railroad to be constructed and operated therein. (§§ 93, 95, General Railroad Law.)

The testimony shows that all the proceedings before the common council were regular, and that no formality requisite to its final action was omitted, and as the right to grant consent to construct a railroad in the streets of the city is not the property of the city, and the local authorities are not required to grant such consent to the highest bidder, the conclusion necessarily follows that the grant to the defendant companies was a valid exercise of legislative power, and as such is not within the province of judicial review. By the Constitution and the Railroad Law of the State, now existing, the granting of the consents and the terms upon which they should be given were committed to the judgment and discretion of the mayor and common council of the city. In enacting the resolution complained of, they exercised a part of the sovereign power of the people, and, as was said by one of the ablest judges of our State, however unwise their action, whatever the motive may have been which led to the passage of the resolution, the courts have no power to arrest its execution.

The judgment must be reversed and the complaint dismissed, with costs.

Dykman and Pratt, JJ., concurred.

DtKMAN, J.:

Municipal corporations are creatures of law and. clothed witb powers and functions to be exercised for the public welfare. In the extent of their powers and liabilities they differ materially from counties, towns and other quasi corporations which are created for governmental purposes alone. The officers of such corporations are viewed as trustees of the State residing within the territorial limits of the city. In respect to the public and governmental functions with which such corporations are clothed, they are vested and are to be exercised for public purposes; they are sovereign powers to be exerted in the interests of the entire public. It would be a very narrow view of the powers and duties of municipal officers that would confine their exercise to the aggrandizement of the local treasury. Financial considerations are not alone to control in granting permission to prosecute the various enterprises conducted by individuals and private corporations within the municipality. In all such cases the welfare of the public must be considered, and in the exercise of its governmental functions the municipal authority is required to determine the questions by the exercise of judgment and discretion in the interest of the whole community. So far as a discharge of the duties devolved upon municipal authorities requires the exercise of judgment and discretion, they must be, to a great extent, final and conclusive when free from fraud and corruption. It would be quite destructive of local self-government if all the acts of city and village authorities within their jurisdiction were subject to judicial review and control.

Mistakes and errors of judgment may occur in the performance of such duties, but it is not in accordance with our system of government to apply to the courts for their correction. Prior to the •enactment of several statutes, which authorized an action in favor of taxpayers to prevent waste or injury to public property, funds or estate, judicial interference with the action oi public bodies within their powers was never invoked.

Those statutes came before the Court of Appeals for consideration and application in the case of Talcott v. The City of Buffalo (125 N. Y. 286), and it was there said: “The terms ‘waste’ and ‘injury’ used in this statute comprehended only illegal, wrongful or dishonest official acts, and were not intended to subject the official action of boards, officers or municipal bodies, acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute'with the sanction of this court without some proof or allegation that the official act or proceeding complained of was without power or was tainted by corruption or fraud.”

The- decision was that the provision of the Code of Civil Procedure, section 1925, authorizing an action by a taxpayer to prevent waste or injury to the property of a municipality, as supplemented by the subsequent statutes on the same subject, is confined to cases where the acts complained of are without power, or where corruption and bad faith amounting to fraud is charged, and that the word waste includes only illegal, wrongful or dishonest action. The Constitution and tho laws have delegated to the local authorities the control over the streets in the cities with authority to consent to their use for a surface railroad.

The performance of their duties in that regard requires the exercise of judgment and discretion, and the presumption always is that their action has been prompted by correct motives.

Municipal officers are not the agents of the city; they are public officers clothed with certain powers for convenience of government, and interference with their action by the courts would be an invasion of their province and amount only to a substitution of the judgment of the judges for that of the officers.

The foregoing principles will aid us in our further progress in the examination of this appeal.

Turning now to the case before us, we find it to be a taxpayer’s suit under the several statutes mentioned.

The defendant railroad companies are two corporations to which franchises have been granted by the city of Brooklyn to construct and operate surface railroads over certain streets named in the petition. The city of Brooklyn and the mayor and aldermen of that city are also made parties defendant. After stating the application for leave, to construct the railroads, and the action of the common council thereon, the complaint continues as follows:

“ That by the aforesaid illegal and wasteful acts of the individual defendants, the defendant railroad companies claim, nevertheless, to have acquired the valid consent of the city of Brooklyn to the construction and operation in conjunction, of a railroad over the streets and avenues mentioned in paragraph fourteen of this complaint, and are about to proceed so to do,” and then prays for judgment declaring the grants to the defendant companies illegal and wrongful to the estate and funds of the city.

There is no charge of fraud or corruption in the complaint. The only allegation of malfeasance is that the members of the common council wrongfully and willfully and in violation of their official duties to the said city, taxpayers, freeholders and electors thereof, and illegally and in waste of tho property, funds, effects and estate of said city, and solely in order to favor the defendant railroad companies and the persons managing such companies and interested therein, and colluding with such persons with intent to prevent said city from getting fair and adequate and the largest compensation for such streets, granted to said companies the right to construct and operate railroads on the route specified. There is no averment of want of power in the common council to perform the acts of which the plaintiff complains, or that such acts were not within the jurisdiction of the municipal authorities, and there is no complaint of any irregularity in the proceedings.

The averments in the complaint amount, at most, to a charge of mismanagement oí improper administration of public affairs; and, as we have already seen, it requires much more to justify the interference of a court of equity to supervise or correct the action of municipal authorities.

The law affords no appeal to the courts from their action. Judge BeowN said, upon the application for a preliminary injunction in this action : “ Very much must be conceded by the courts in a case of this character to the judgment and discretion of the municipal authorities, and their action cannot be nullified simply upon the ground that the court thinks they should have afforded more opportunity to other corporations to bid for their consent or to give greater or more favorable consideration to real bidders.

“ The law does not afford an appeal from t'heir decision. In the absence of illegal or corrupt action, bad faith will justify interference by the court, only in cases when it amounts to fraudulent action, and in sucli cases the fraud must be shown to be productive of waste or injury to city property.” When Judge Cullen heard the case before him on demurrer to the complaint, he said: “ The local authorities might deem that a road of a particular character would so much better subserve public interest than one of another character, that if would be wiser to grant consent to the first without compensation than to the second for compensation. I think, therefore, that the whole subject is within the power and discretion of the local authorities, if that power be exercised without fraud, to determine whether a consent shall be given to a particular company, and the reasons and considerations that shall dictate their course.”

The proof fails to bring the case up to the charge in the complaint.

On the 22d day of May, 1893, the two defendant railroad companies, which were associated together, and with the Coney Island, Fort Hamilton and Brooklyn Railroad Company, so as to be substantially one concern, applied to the common council of the city of Brooklyn for consent to lay down railroad tracks in certain streets of that city. On the same day, the Brooklyn City Railroad Company applied for a consent covering the most but not all of the same streets, and also covering other streets. On the same day, the Union Street Railroad Company applied for a consent in respect to' the streets covered by the application of the Brooklyn City Company, but omitting, as the latter company had done, a part of the' streets applied for by the defendant companies, and including many streets for which the latter companies did not apply. The Brooklyn City Company offered to pay to the city $150,000 for a consent to build on the streets according to its application and that of the defendant companies; the Union Street Railway Company offered to pay the city various sums per mile, amounting to between $250,000 and $260,000. The defendant companies made no specific offer, but expressed a willingness to make such compensation as the common council might deem proper. All the provisions of the Railroad Law as to notice of hearing and consideration of defendants’ application were duly complied with. On the 19th day of June, 1893, the board adopted resolutions granting to the defendant companies the consents for which they applied, and granting to the Brooklyn City Railroad Company a consent for a portion of the streets for which it applied.

The consents which were granted imposed by way of condition the payment to the city of Brooklyn of the following percentages of gross receipts of the railroads to be constructed,'namely, one per cent when the receipts were $20,000 or less per mile; two per cent when the receipts were more than $20,000 and less than $40,000 per mile, and three per cent when receipts exceeded $40,000 per mile. The application of the Union Street Railway Company was refused for the reason stated in the report of the committee to which it was referred, and which was substantially as follows: There is before the common council an application by the Union Street Railway Company for its consent to the construction of a street surface railroad upon the same routes as those covered by the application of the Nassau Electric Railroad Company. These routes are understood to be proposed extensions of the main route of the Union Street Railway Company’s road, designated in its certificate of incorporation as covering Union street from Hamilton Ferry to Prospect Park Plaza. The routes of the Union Street Railway Company do not extend beyond the city line, and in that respect do not afford the facilities for travel presented by the Nassau Electric Railroad Company. It is a consideration deemed worthy of mention that by far the greater part of the Union Street Railway Company’s route consists of extensions of the route described in its articles of association, upon no part of which as yet a road has been built. Your committee is advised that there is grave doubt of the power of a railroad company to apply for or take a grant of a right to extend a route of an unconstructed railroad, and before an application for extension can effectually be made there must be an existing railroad to which such extensions will apply.

“ If such be the law, a grant to the Union Street Railway Company would be entirely inoperative, and the public would not realize from it any of the increased facilities for travel of which it stands in heed. Upon the question of compensation for franchises, your committee, after mature deliberation, has reached the conclusion that a graded percentage upon gross receipts is in harmony with the spirit of the statute relating to the subject, will produce the largest revenue to the city, and is favorable to the latter as a continuing source of income, and, so far as concerns tlie railroad company, should not be regarded as burdensome, because the payment thus imposed will be measured by the earnings of the company.”

The report of the committee, and the resolution proposed by it and adopted by the hoard, manifests a thorough and careful examination and acquaintance with the subject, and a proper consideration and regard for the interests of the city and the welfare of the public. This lengthy extract is made from the report to show that the whole subject was thoroughly considered, and also to manifest the reasons which actuated the aldermen in their action in respect to the bestowment of the franchises to the defendant companies and refusing the request of the Union Company. We are not concerned with the refusal to grant the request of the Union Company beyond its reflection upon the motives of the aldermen and the interests of the city, because no relief is sought in that respect. In regard to the motives of the aldermen, the doubt expressed respecting the validity of the grant to the Union Company for an extension of its route anterior to the construction of any portion of its road, and the fact that the route of the Union Company is covered by the other lines, and does not extend beyond the city limits, are proof of their sincerity and correctness.

The very term extension ” implies the existence of something to be extended, such as a street or a field. Such were the views of Judge Earl, expressed in the case of The People v. Broadway R. R. Co. (126 N. Y. 39), where he said: “It cannot be properly said that a road is extended ” unless it is then and there existing to be extended. The very language implies that the road was to be built, and then after the opening of the avenue mentioned, extended.”

But there are reasons why such a grant for extension would be nugatory beyond the mere signification of the term extension.- The effect of filing an extension certificate, if valid, is to give the railroad company the same corporate capacity with reference to the extension to construct, maintain and operate a railroad as that which it acquires by filing its articles with reference to its original route.

Inasmuch, therefore, as the filing of the original articles does not give any corporate capacity whatever, unless certain conditions are performed in respect to the amount of the capital stock per mile, and the payment of at least ten per cent of the minimum capital and evidence of a bonafide intent to build and operate the railroad and the payment of one-eighth of one per cent of the amount of stock to the State, the statute authorizing the extension ought to be so construed as not to make it subversive of the general policy of the Railroad Law and as not to enable companies to accomplish indirectly what they could not accomplish directly otherwise than by compliance with the conditions prescribed by the statute.

Moreover, as the route of the Union Company did not extend beyond the bounds of the city, its facilities for accommodating the public were limited and less extensive than those of the other companies. Again, it is to be observed that the income based upon the percentage of gross receipts will be perpetual, and, therefore, more advantageous to the city than the sum offered by the Union Company. As there is no cause for the interference of the court upon the ground of fraud, so we find no reason for interference by reason of waste or injury to the funds or property of the city even according to the most technical definition of those terms. In the sense in which they are employed in the statute they include only wrongful or dishonest, illegal action as we have already seen. The general view is that the permission to the defendant companies could have been granted without compensation, but if such grants are to be considered as property, the city is to receive compensation, and so no waste has been committed. When it is claimed that the aider-men could and should have made a more rigid bargain, the answer is that the subject rested in their discretion. Tested by the application of both reason and authority according to the principles laid down in the commencement of this opinion, the record before us discloses no case for the interference of the court. There are many details which cannot be stated within the reasonable length of an opinion, but we have examined the entire case with care, and we have reached the conclusion that the judgment is erroneous. It invades the jurisdiction of a governing body which is as independent within its sphere as the judiciary is in its. In the dissenting opinion of Judge PegehaM in the Talcott case, he said: “ Under the statute as it now reads I think the court has jurisdiction to enjoin the performance of an act by a public officer of the kind mentioned therein, if it be of such a character as to necessarily result in a plain, bald, useless waste of the property or funds of the public. The act must be such that there can be no fair question in the judgment of reasonable men as to its character. It must be plainly and beyond all fair controversy wasteful; a mere squandering of public funds.”

The proofs in this case leave it far below that requirement.

The case has attracted much public attention, chieiiy because it arose at a time when there was considerable excitement in the public mind. But the courts are beyond the voice of clamor, and must decide the law with serenity and independent of external strife or opinion.

The judgment should be reversed, and the complaint dismissed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment reversed and complaint dismissed, with costs.


source: Caselaw Access Project

author: Bartlett, J.:

license: Public Domain

text:
    Frank A. Lemmer, Respondent, v. Clara E. Morison, Appellant, Impleaded with Sarah A. R. Cox.

      Mechanics’ Lien Law — conveyance improperly recorded —priority of a lien subsequently filed — not destroyed by the lienor’s knowledge of the convey anee.

    The Mechanics Lien Law (Laws of 1885, chap. 343, § 5) declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of the filing of the notice of lien prescribed in that act.
    On April 13,1898, a deed was recorded in the register’s office of Kings county which was acknowledged in the State of New Jersey before a notary public of said State; attached to it was a certificate of the clerk of the proper county in New Jersey, to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same. It appeared that at the time of the taking of the acknowledgment a notary public in the State of New Jersey possessed no legal authority whatever to take the acknowledgment of deeds.

      Held, that the deed, being insufficiently acknowledged, had been improperly recorded; that, although a mechanic who filed a lien against the premises described in the deed on April 17, 1893, had constructive notice of the transfer of the pioperty, yet, under the statute, the lieyi would have, priority over the conveyance.
    Appeal by the defendant, Clara E. Morison, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of tbe county of Kings on tlie 24th day of August, 1894, upon the decision of the court rendered after a trial at the Kings County Special Term.

      James P. Philip and E. Paymond, for the appellant.

      William L. Snyder, for the respondent.
    Present — Brown, P. J., Dykman and Pratt, JJ.
   Judgment affirmed, with costs, on opinion of Bartlett, J., at Special Term.

The opinion of Bartlett, J., was as follows:

Bartlett, J.:

This is a suit to foreclose a mechanic’s lien. The plaintiff’s right to recover was disputed on the trial solely on the ground that the premises, upon which the work was done, were conveyed by the defendant Cox to the defendant Morison on April 12, 1893, while the lien of the plaintiff was not filed until April 17, .1893.

The plaintiff meets this objection in two ways: Pwst, by attempting to show that the deed from the defendant .Cox to the defendant Morison is not to be considered as having been recorded on April 12, 1893, or prior to the filing of the lien, inasmuch as it was not entitled to be placed on record then; and, secondly, by offering proof tending to show that work was done upon the property, subsequent to the conveyance, with the consent of the grantee.

So far as the second point is concerned, I do not think the proof is sufficiently clear or satisfactory to warrant a finding that the defendant Morison consented to the subsequent prosecution of the work. It seems to me, however, that the plaintiff is entitled to prevail upon the first point. The Mechanics’ Lien Law declares that the liens therein provided for shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the act. (Laws of 1885, chap. 342, § 5.)

The statute' makes the record of a deed essential to give it priority over a mechanic’s lien. This means a valid record. The deed of April 12, 1893, was acknowledged in New Jersey before a notary public. Attached to it was a certificate of the clerk of the county of Camden and clerk of tbe Circuit Court of New Jersey in said county in which said deed was acknowledged to the effect that the notary before whom the acknowledgment was taken was duly authorized to take the same, and to take and certify the acknowledgment and proof of deeds to be recorded in that State. The nncontradicted evidence before me shows, however, that at that time a notary public in New Jersey possessed no legal authority whatever to take the acknowledgment of deeds, that power being confined to the chancellor, commissioner of deeds, justices of the Supreme Corn!, masters in chancery, and judges of the Court of Common Pleas.

The deed, however, was actually copied into the books of the register of Kings county, and the defendants contend that the plaintiff thus having constructive notice of the actual existence of the conveyance, which was undoubtedly good as between the parties to it, the intent of the statute has been complied with, and that the deed should have priority over the lien. But the objection to this view is that it seems to be broadening the language of the statute to an unwarrantable extent. If correct, it would involve holding that a deed of which a mechanic had notice would be entitled to priority over his lien, even though such deed should never be recorded, and this in face of the express declaration that the lien shall be preferred to any conveyance not recorded at the time it is filed.

As these are matters of purely statutory creation and regulation, it seems to me that a strict adherence to the letter of the law is more conducive to justice than a looser construction with the uncertainties which it would necessarily involve.

That the so-called record of April 12, 1893, must be deemed wholly ineffectual seems to follow from the case of Irving v. Campbell (121 N. Y. 353) where a deed insufficiently acknowledged had been improperly recorded. It was held that that deed could not be read in evidence, and that a title resting upon such alleged record was unmarketable.

Under our statute, the proof or acknowledgment of deeds, when made in other States of the Union, may be made before any officer of such state authorized by the laws thereof to take the proof and acknowledgment of deeds, and when so taken and certified they shall! be entitled to be recorded in any county of the State. (Laws 1893, chap. 123.) The statute in terms requires as a prerequisite to the valid record of a conveyance, not only that it shall be certified to have been proved or acknowledged before an officer authorized by the laws of the other State to take the proof and acknowledgment of deeds, but that the proof or acknowledgment shall actually have been taken by an authorized officer. In the present case the certificate was sufficient on its face, but the trouble is that it was .not true. The defendants subsequently recognized the questionable character of the acknowledgment, and proved the deed afterwards before a master in chancery, and had it recorded in the Kings county register’s office on June 29, 1893, but this was long after the mechanic’s lien was filed.


author: Dykman, J.: Baetlett, J.:

text:
    John R. Drake, Appellant, v. The New York Iron Mine and Others, Respondents.

      What does not constitute an equitable assignment of dividends of a corporation— effect of the absence of evidence in co case on appeal.

    In the year 1877 all the stock of a corporation known as the New York Iron Mine, save a few shares, was owned hy Messrs. Tilden and Wetmore. In April and May of that year Wetmore, being in Michigan, made three promissory notes for §5,000 each, in the name of the New York Iron Mine, and procured them to he discounted hy a hank. Wetmore, who had no authority to make any of these notes, made them intending when there should he a dividend of the New York Iron Mine, to pay these notes out of the share of the profits then coming to him as a stockholder of the corporation. This intention, however, he did not divulge to any one. When that dividend came to he made, Tilden insisted on the application of Wetmore’s share to the payment of other claims. , The notes were dishonored, and in July, 1877, Wetmore went into bankruptcy. After filing his petition in bankruptcy he made eutries in the books of the New York Iron Mine, kept hy himself in Michigan, charging the notes against himself as a debt due from him to said corporation.
    The hank which discounted the notes was informed that the notes were made without authority, hut it never regarded Wetmore as its individual debtor hy reason of his having made the notes.
    In an action brought hy the owner, through successive transfers, of the notes given to said hank, to reach certain dividends of the New York Iron Mine, declared in 1889, in which the estate of Wetmore was entitled to share,

      Held, that no equitable assignment or implied trust was created by Wetmore in favor of the hank ; that the action of Wetmore in charging the notes against himself on the hooks of the New York Iron Mine in Michigan, had no effect as to the hank, though it might he deemed an acknowledgment on his part that as between himself and the New York Iron Mine, the notes were to be treated as his individual obligations, and that the complaint was properly dismissed.
    Where a case on appeal contains no evidence, the findings of the trial judge, in relation to the facts, are to be taken as true, and the sole question before the court on appeal is whether the facts so found are sufficient to sustain the conclusions of law reached by the trial judge.
    Appeal by the plaintiff, John R. Drake, from a judgment of the Supreme Court in favor of me defendants, entered in the office of the clerk of the county of Queens on the 20th day of October, 1894, upon the decision of the court after a trial at the Queens County Special Term dismissing the complaint upon the merits.

      Roger M. Sherman, for tire appellant.

      Frank E. Smith, for the respondents.
   Dykman, J.:

This case comes to us upon the judgment record alone without a case. The object of the action is to establish and enforce an equitable assignment of or lien upon a certain fund, and the complaint was dismissed after a trial before a judge without a jury.

In the absence of a case containing the evidence the findings of the trial judge in relation to the facts are to be taken as true, and the sole question before us is whether those facts so found in this case are sufficient to sustain the conclusions of law reached by the trial judge.

The findings are lengthy and the facts are numerous. Their recitation here would be unprofitable because they justify hut one conclusion. They are entirely insufficient to support the claim of the plaintiff.

The trial judge dealt with the case in a very satisfactory opinion, and we find it unnecessary to add anything to what is said therein.

The judgment should be affirmed, with costs, upon the opinion of the trial judge.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs, on opinion of Judge Bartlett, at Special Term.

The opinion of Judge Baetlett was as follows:

Baetlett, J.:

The transactions which are the subject of the controversy in this, suit grow out of the relations of the late Samuel J. Tilden and of the defendant William L. Wetmore, to a corporation organized under the laws of Michigan, and doing business in that State, and in the State of New York, under the name of the New York Iron Mine.

In the year 1877 all the stock of the New York Iron Mine,, save a few shares, which were necessary to enable persons to. act as directors, was owned by Messrs. Tilden and Wetmore, Mr-Tilden owning a controlling interest. In April and May of that year Wetmore, being in Michigan, made three promissory notes for $5,000 each in the name of the New York Iron Mine, and procured them to be discounted by the First National Bank of Negaunee. Wetmore had no authority either to make or deliver any of these notes. His intention was, when there should next be a dividend by the New York Iron Mine, to pay these notes out of the share of the profits then coming to himself as a stockholder in the corporation. This intention, however, he did not divulge to any one. When that dividend came .to be made, Tilden insisted on the application of Wetmore’s share to the payment of other claims. The notes were dishonored, and in July, 1877, Wetmore went into bankruptcy. After the filing of his petition he made entries in the books of the defendant corporation kept by himself in Michigan, charging the notes as against himself as a debt due from him to the New York Iron Mine.

The present plaintiff sues _ as the owner, through successive transfers, of the three notes in question, and as also owning all liens and assignments pertaining to them. His purpose is to reach certain - dividends of the New York Iron Mine, in which the estate of Wet-more was entitled to share, which were declared in 1889.

The theory of the case in his behalf, as 1'understand it, is that Wetmore made an equitable assignment to the First National Bank of Negaunee of all dividends which might thereafter be declared on his stock in the New York Iron Mine, or that he created an implied trust, whereby such dividends were made applicable to the payment of these notes.

Unless the plaintiff can establish such an equitable assignment or implied trust, he must fail in the action.

It is to be noted that the Negaunee Bank never entertained the idea of any assignment or trust whatever. Its officers were informed that the notes were made without authority; but, nevertheless, the bank sued the New York Iron Mine upon them.

If Wetmore ever intended to make any equitable assignment or constitute any trust, it is tolerably plain that the bank at this time did not know it.

But the evidence fails to disclose anything which amounts to an equitable assignment. What Wetmore meant to do was to pay these notes, which he had issued wrongfully, out of the dividends which he should thereafter receive from the New York Iron Mine, but he never meant at any time to transfer to the Negaunee Bank any right to those dividends as such.

The bank never regarded him as its individual debtor by reason of his having made the notes; and I do not see how it can be held that its officers accepted an assignment of a fund to pay a debt which it did not suppose existed as an individual obligation of Wetmore.

Wetmore declares that he did not think that he was making the Negaunee Bank his creditor; and that when he found that he had to go into bankruptcy, he wished the bank to share with all his other creditors, and did not want to give it any preference. Ilis acts, as proved, do not contradict his intent as thus stated. An intention to make an equitable assignment cannot be inferred from signing the notes in the name of the New York Iron Mine, and procuring them to be discounted without any authority on his part so to do. The notes contained nothing, nor were they accompanied by any instrument, indicating a desire or direction for payment out of a particular fund. Wetmore did nothing at airy time which put the dividends out of his dominion or control and put them under the dominion or control of the Negaunee Bank. His action in charging the notes against himself on the books of the New York Iron Mine in Michigan had no effect as to the bank, though it may be deemed an acknowledgment on his part that, as between himself and the New York Iron Mine, the notes were to be treated as his individual obligations. It is argued that these entries are evidence of a prior assignment, and amounted to a lawful declaration of trust; but it would be going very far, I think, to hold that this was evidence of a prior assignment in the face of Wetmore’s declaration to the effect that he did not intend to make any, and in view of the fact that the bank had no knowledge or expectation of such an assignment.

On the subject of implied trusts, Mr. Perry, in his well-known treatise, says: “ Any agreement or contract in writing made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property or a certain fund shall be held or dealt with in a particular manner, for the benefit of another, in a court of equity raises a trust in favor of such other person against the person making such agreement, or any other person claiming under him voluntarily or with notice.” (Perry on Trusts, § 82.)

But here there is nothing to show that the entries made by Wet-more gave any direction whatever for the payment of his future dividends to the Negaunee Bank or to anybody else.

My conclusion, as matter of fact, that the proof does not establish an equitable assignment or implied trust, renders it unnecessary to determine the other interesting questions discussed by counsel m their briefs.

There must be judgment for defendants with costs.


text:
    The People of the State of New York ex rel. Lorenzo Criscolla, Respondent, v. Henry H. Adams, as Treasurer of the County of Kings, Appellant. The People of the State of New York ex rel. Andrew P. Johnson, Appellant, v. Henry H. Adams, as Treasurer of the County of Kings, Respondent.

      Interpi'eters in Kings county — camnot be removed except for cause— but two cam, be appointed — chapter 249 of 1869, not repealed by implication by Code of Qivil Procedure, § 94.
    The hoard of supervisors of the county of Kings is authorized and empowered by chapter 249 of the Laws of 1869 to designate and appoint some suitable person as interpreter, whose duty it shall he to attend the courts of record in said county at which witnesses are sworn and testify.

      Such, hoard of supervisors is also empowered to appoint a second interpreter by the provisions of section 94 of the Code of Civil Procedure, which section does not repeal, by implication, chapter 249 of the Laws of 1869.
    Under the provisions of section 94 of the Code of Civil Procedure, not more than one interpreter can he appointed, and both interpreters appointed by the board of supervisors of the county of Kings are entitled to hold office' during good behavior, and cannot be removed except for cause.
    Appeal by Henry H. Adams, as treasurer of the county of Kings, in the first above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 30th day of April, 1895, and entered in the clerk’s office of the county of Kings, directing that a writ of peremptory mandamus issue, commanding him to restore the name of the relator to the pay roll of the county of Kings, and to pay him the salary therein adjudged to be due him for the months of February, March and April, 1895.
    Also, an appeal by the relator, Andrew P. Johnson, in the second above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1895, which order denied the application of the relator for a peremptory writ of mandamus directed to Henry H. Adams, as treasurer of the county of Kings, commanding him to restore the name of the said relator to the pay roll of the county of Kings and to pay him the salary due him for the month of February, 1895.

      J. Edward Swanstrom, for relators Criscolla and Johnson.

      George F. Elliott, for Henry H. Adams, as treasurer, etc.
   Order affirmed on opinion of Bartlett, J., at Special Term.

Present — Brown, P. J., Dykman and Pratt, JJ.

Brown, P. J., dissented in the Criscolla case.

The opinion of Baetlett, J., was as follows:

Bartlett, J.:

On January 28, 1895, the board of supervisors adopted a resolution declaring that John Jacobson was thereby appointed Scandinavian interpreter in the courts of record of Kings county in place of Andrew P. Johnson, thereby removed, and that Louis Perry was thereby appointed Italian interpreter in such courts in place of L. Criscolla, likewise thereby removed. It is not pretended that either'of these removals was for misconduct. Interpreters appointed by the board of supervisors are entitled to hold office during good behavior. (Laws of 1869, chap. 249; Code Civ. Proc. § 94.) Messrs. Johnson and Criscolla, claiming that their removal in this manner was illegal and void, have instituted the present proceeding to compel the county treasurer to pay them their salaries just as though the resolution of January 28, 1895, had never been passed.

The main ground of opposition to the application is the proposition that under existing laws the supervisors have the right to appoint only one interpreter for the courts of record in Kings county; that they have exercised that right in appointing Frank Mann, the German interpreter now in office, and hence that the appointments of Messrs. Johnson and Criscolla being invalid as in excess of the powers of the board of supervisors, the county treasurer should not be directed or allowed to pay their salaries.

This objection makes it necessary to determine what legislation is now in force in respect to the appointment of interpreter by the supervisors of this county, and what are the powers of the board thereunder.

Chapter 249 of the Laws of 1869 provides as follows: “ The board of supervisors of the county of Kings are authorized and empowered to designate and appoint some suitable person as interpreter, whose duty it shall be to attend the courts of record in said county, at which witnesses are sworn and testify, and avIio shall be paid the sum of twelve hundred dollars per annum, during the good behavior of the said interpreter.”

I am not able to discover that this act has ever been repealed. The learned counsel for the relators declares that it has not been repealed and in this assertion he is sustained by Mr. Birdseye’s Chronological Table of New York Statutes. I do not think it was repealed by implication by the enactment of section 94 of the Code of Civil Procedure, as there is no necessary repugnancy, and that section is to be regarded simply as conferring 'authority to appoint a second interpreter. It reads as follows : “ The board of super’visors of the county of Kings may appoint an interpreter to attend the terms of the courts of record, except the county court held in that county, at which issues of fact are triable, who shall hold his office during good behavior.”

It is contended in behalf of the relators that this provision of the Code authorizes the appointment of more than, one interpreter, and I am informed that such has been the construction put upon it by the board. I cannot concur in that interpretation. It is difficult for me to preceive how language could be used which would make it clearer that the appointment of one officer and only one was contemplated by the enactment of this particular section.

The act of 1869, as already shown, had previously provided for the appointment of one, and my conclusion is that under that statute and the Code, the extent of the power of the supervisors in this matter is the appointment of two interpreters; one by virtue of chapter 249 of the Laws of 1869, the other by virtue of section 94 of the Code of Civil Procedure.

The papers before me make it plain that Mr. Mann, the German interpreter, holds his office under the act of 1869, though the resolution appointing him refers to section 94 of the Code. The first appointee under that statute was John Smith, April 27, 1869. lie died and Bernard Midas was appointed in his place on November 11, 1886. Mr. Midas resigned and on December 12, 1889, Prank Mann was appointed expressly to fill the vacancy caused by his resignation.

It appears to be equally clear that the first appointment and the only one which can be regarded as having been made under section 94 of the Code, was that of Mr. Criscolla, who was appointed interpreter of Italian, French and Spanish on June 14,1883. The averment in his affidavit that he has at all times behaved himself properly while holding the said office of interpreter is not denied. The resolution of the board of supervisors, assuming to remove him without cause, was, therefore, wholly nugatory, and cannot deprive him of the right to his compensation.

The case of Mr. Johnson is different; at the time when the board attempted to appoint him in 1892, Mr. Mann and Mr. Criscolla were in office. If the view which I entertain is correct, the board could not then lawfully appoint a third interpreter. Hence his appointment was invalid, and the court cannot command the county treas-surer to make any further payment to him. Indeed, any such payment to him or to any other jiersons claiming to be interpreters by virtue of an appointment by the supervisors, except Messrs. Mann and Oriscolla, would seem to be without any authority in the law as it now stands.

Application in behalf of the relator Criscolla, granted.

Application in behalf of the relator Johnson, denied. No costs.


author: Pratt, J.:

text:
    George A. Powers, Respondent, v. The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, Appellants.

      Measure of damage to easements taken by an elevated railroad — burden of proof— construction of findings on appeal — the appellant can claim those most favorable to him.

    £n an action brought against an elevated railroad company to recover for loss of fee and rental value of real property the plaintiff is not entitled to recover any greater sum as damages than the net amount of consequential injury to the premises, after setting off the known increase in the value of the property caused by the railroad against any injury or inconvenience resulting therefrom.
    Upon the trial of an action brought against an elevated railroad company to recover for loss of fee and rental value the court refused to find that if it appeared that the damages to the fee of the property described in the complaint were occasioned by one of two or more causes, for one of which the defendant was responsible and for the other or others of which it was not responsible, the plaintiff must fail if his evidence did not show that the damage was produced by the former cause, and he must fail if it was just as probable that it was caused by the one cause as by the other cause or causes.

      Held, that this refusal to find was equivalent to saying that the plaintiff was not bound by the rule of law in regard to estimating such damages, which was error; that the rule of law to be applied in such a case is that if the court is unable to ascertain between two causes whether it was due to the one or the other, it should decline to award damages to the plaintiff who is bound to make out his case by a preponderance of proof.
    Upon an appeal by the defendant from a judgment in favor of the plaintiff the appellate tribunal is bound to put the most favorable construction upon all the findings in favor of the defendant, and where one is inconsistent with the findings for the plaintiff, the whole of such findings must give way to the finding favorable to the defendant.
    Brown, P. J., dissenting.

      Appeal by tlie defendants, The Brooklyn Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of January, 1895, upon the decision of the court rendered after a trial at the Kings County Equity Term.

      William, H. Page, Jr., for the appellants.

      Charles J. Patterson and Fred. Ingraham, for the respondent.
   Pratt, J.:

This is a land damage action for loss of fee and rental value to the lot situated on Flatbush avenue at the corner of Flatbush and Fifth avenue and Pacific and Dean streets in the city of Brooklyn.

The motion in this case to strike the same from the equity calendar and send it to the Circuit for trial, and also the motion to stay proceedings until the damage could be passed upon by commissioners, were properly overruled. (See opinion in the case of Hart and Others against the same defendants, decided at the present General Term.)

There are a large number of findings made by the court at the-request of both parties, and a large number of exceptions, most of which upon examination disclose no error sufficient to reverse the-judgment; in fact, the case was tried with great fairness and care.

The rule is well settled that if the findings of the plaintiff are modified or nullified by findings for the defendant, then the defendants upon this appeal can claim those which are most favorable to-them. It seems to me that the evidence is conclusive that there-was no fee damage to the property facing upon Flatbush avenue or-Fifth avenue except at the point where defendants’ road turns from Flatbush avenue into Fifth avenue; indeed, the court has found substantially that the building of the road has benefited the property upon Flatbush avenue, and the plaintiff has failed to show any damage upon Fifth avenue that the property has received by reason of the road.

At the point where defendants’ road turns from Flatbush avenue-into Fifth avenue it encroaches upon the sidewalk and, of course, as-the judge remarked at the trial, it could not fail to damage tlie property to some extent; but tbe court lias found tbat the property described in the complaint, taken as a whole, has received a special benefit for business purposes by reason of the operation of defendants’ road. It is not claimed or found that the property, so far as it borders on Dean street, has been injured by the presence of the defendants’ road.

The court has also found that the effect of the proximity of the defendants’ stations to the property described in the complaint is advantageous to the business portion of the premises, and produces a special benefit for business purposes, so that the damages, if any, established by the findings of the court and by the evidence, must be confined to the corner where the railroad turns from Flatbush avenue into Fifth avenue.

There is no question about what appears as well settled, that in this class of cases the plaintiff is not entitled to recover any greater sum, as damages to the use of the premises in suit, than the net amount of consequential injury thereto, after setting off the known increase in value of the said property caused by the said railroad against any injury or inconvenience therefrom.

There can be no question as a matter of fact; indeed, the court has so found that the fee value of land on Flatbush avenue, irrespective of any building thereon, has largely increased since the authorization and construction of the elevated railroad. He has also proved and found that the business of stores in the vicinity of the property described in the complaint has continued to improve in value. It is also claimed that the building of the road has made the plaintiff’s property more, accessible, by drawing people to the vicinity, and increasing traffic and business, and that the property for business purposes has been greatly benefited.

The court also refused to find that the existence of a large stable, adjacent to the line of property described in the complaint and extending from Dean to Pacific streets, has appreciably impaired the value of said property. The detrimental effect of a stable is conceded in the testimony of Bennett, Brown, Dougherty and Rustic. All agreed in the statement that a stable depreciates the value of property next door to it, of course.

The court also refused to find that the failure to erect buildings, and otherwise improve the property described in the complaint, has impaired the value of said property. This conclusively appears from the plaintiff’s own witnesses.

The court also refused to find that, if it appeared that the damages to the fee of the property described in the complaint were occasioned by one of two or more causes, for one of which the defendants are responsible, and for the other or others of which they are not responsible, the plaintiff must fail if Ms evidence does not show that the damage was produced by the former cause, and he must fail if it is just as probable that it was caused by the one cause as by the other cause or causes.

This refusal to find was an equivalent to saying that he could not be bound by the rule of law in regard to estimating such damages, which we think was error. (Searles v. Manhattan Railway Co., 101 N. Y. 661.)

The application of such a proposition of law is apparent, for the reason that a number of cases appeared in the proof, by virtue of which diminution of fee value, if any were found, might be accounted for, and opposed to this is the testimony of plaintiff’s experts alone, stating that the fee value is less now than when the road was built, from - which the road is argued to have been the cause of the depreciation.

The rule of law to be applied was, that if the court was unable to ascertain between these two causes whether it was due to the one or the other, that is, the unimproved character of the property reflecting upon itself, the existence of the stable, or the panic of 1892, or any other of numerous, proven cases, as compared with the construction and operation of this road, then the court was bound to decline to award damages to the plaintiff, who is bound to make out his case by a preponderance of proof. (Cranston v. N. Y. Central & H. R. R. R. Co., 103 N. Y. 614).

It seems to me that, looking at the evidence in connection with the findings I have referred to, proposed by the defendants, the court has found a difference between the injury to the property, and the benefits accruing to the property from the road, altogether too large.

The decision is inconsistent with the findings and proofs admitted by the defendants. It is true, that so far as the court has really announced upon the trial any propositions of law, no criticism can be made, but we are bound to put the most favorable construction upon all the findings in favor of the defendants, and where one is inconsistent with the findings for the plaintiff, the whole finding must give way to the finding for the defendants. The form of the judgment we think is a sufficient compliance with the Code of 1894, yet it is impossible to tell the grounds upon which the conclusions were reached except by the examination of the opinion and of the various findings for the ¡plaintiff and defendants.

It is perfectly clear that only five or six lots upon Elatbush and Fifth avenues could have been injuriously affected by the elevated road, and the proof is that even now the lots would sell for as much or more than before the road was constructed. It may be observed that the lots upon the corner of Fifth avenue and- Flatbush avenue are only fit for'business purposes, and as such they are much more valuable than for dwellings, and in that respect it seems the property has been improved rather than dejireciated.

The judgment should be reversed and new trial ordered.

Dykman, J., concurred; Brown, P. J., dissented.

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

      See ante, page 259.


author: Brown, P. J.:

text:
    In the Matter of the Application of George Keymer for a Writ of Mandamus Directed to the Civil Service Commission of the City of Brooklyn. George Keymer, Respondent; Civil Service Commission of the City of Brooklyn, Appellant.

      Preference given to veteran soldiers and sailors'by the Constitution — limit of the legislative power — a rule based upon compensation is invalid — chapter 344 of 1895 — a violation of%dof article 5 of the JYew York Constitution.

    Chapter 344 of the Laws of 1895,- which provides that persons who served in the army or navy of the United States-in the late civil war and have been honor ably discharged therefrom, shall be certified as such by the commissioners or board of officers authorized to report names for appointment or pr omotion, to the appointing officer or other appointing power, and when such honorably discharged soldiers and sailors are applicants, they shall be preferred for such appointment and promotion, and competitive examinations shall not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed four dollars per day, but the examination shall be such as is calculated only to ascertain the merit and fitness of the applicant for the position for which he applies, and, if found fitted to fill such position,the applicant’s name shall be placed on the eligible list, and he shall be certified therefrom, in so far as it declares competitive examinations not to be practicable or necessary, is in conflict with section 9 of article 5 of the Constitution of the State of New York, and is void in that it creates a preference to veterans of the late civil war which it is beyond the power of the Legislature to grant.
    The effect of the constitutional provision (§ 9 of art. 5) is to bring the whole civil service of the State of New York under the operation of the Civil Service Laws. Veteran soldiers and sailors have the preference that the Constitution gives them; this preference is exclusive of all others, and the Legislature can give them no more.
    The power to determine in what cases competitive examinations are practicable does not include the power to exempt or relieve one class of citizens from such examinations and exact them from others. All applicants for the same office, in reference to the manner of examination, must be treated alike.
    The expression in the Constitution, “so far as practicable,” qualifies the declaration that merit and fitness for office shall be ascertained by examination as well as the declaration that such examination shall be competitive.
    The plain purpose of chapter 844 of the Laws of 1895 is to extend to the veteran soldiers and sailors a preference in appointment that is not given to them by the Constitution — which it is not within the power of the Legislature to do.
    The judgment of the Legislature upon the propriety of laws passed in the exercise of discretionary power is not final but is sub j ect to the review of the courts. Laws passed pursuant to a constitutional limitation, that they shall relate to the enforcement or carrying out of the constitutional mandate, are always «open to judicial review.
    It is within the power of the Legislature to determine in the ease of what offices or class of offices examinations or competitive examinations for positions in the civil service of the State of New York are practicable, but whether a particular statute is a valid exercise of that power is a judicial question.
    The power of the Legislature, by section 9 of article 5 of the Constitution of the State of New York, is restricted to the passage of laws for the enforcement of such section. The limit of legislative power is thus accurately defined, and the validity of every law relating to appointments and promotions in the civil service of the State, or of the municipal corporations thereof, is to be tested by-the inquiry whether the statute tends to enforce the provisions of the Constitution, and if it is apparent that such is not the real object and purpose of a law the courts will interfere and protect the constitutional rights of the people. A statutory rule on this subject cannot rest upon the fact of the amount of compensation attached to the office without reference to the duties of the office and the character of the services to be performed; such a rule would annul the constitutional mandate, would transcend the power of the Legislature and be void.

      Appeal by the Civil Service Commission of the City of Brooklyn from an order of the Supreme Court, made at the Kings County Sjiecial Term and entered in the office of the clerk of the county of Kings on the 14th day of June, 1895, directing that a peremptory writ of mandamus issue to the Civil Service Commission of the city of Brooklyn, requiring it to examine the relator for the position of messenger in the civil service, in pursuance of chapter 344 of the Laws of 1895.

      Albert G. McDonald, for the appellant.

      Horatio C. King and Jesse Johnson, for the respondent.

       Decided September, 1895.

   Brown, P. J.:

On May 1 J, 1895, the respondent presented to the civil service tommission of the city of Brooklyn an application of which the following is a copy :

“ BrooKlyN, N. Y., Man/ 17, 1895.
“ Civil Service CoMmissioN oe Brooklyn,
“ W. J. D. Campbell, Esq., Secretary:
Dear Sir.— I respectfully apply for a non-competitive examination as messenger in the service of the city of Brooklyn, in pursuance of and in conformity with chapter 344 of the Laws of New York, which became a law April 18,1895.
I served in the army of the United States in the late Civil War, and have been honorably discharged therefrom.
“ An early reply will oblige,
“ Yery truly yours,
“ GEORGE KEYMER.”

This application having been denied, the respondent instituted this proceeding, and the order appealed from directs that a peremptory mandamus issue directed to said civil service commission, requiring it to examine said respondent for the-position of messenger in the civil service of said city, pursuant to chapter 344 of the Laws of 1895.

The statute referred to in the order of the court, so far as it is material to the case before us, is as follows:

“ In grateful recognition of the services, sacrifices and sufferings of persons who served in the army or navy of the United States, in the late civil war, and have been honorably discharged therefrom, they shall be certified as such by the commissioners or board of officers authorized to report names for appointment or promotion to the appointing officer or other appointing power, and when such honorably discharged soldiers and sailors of the late civil war are applicants they shall be preferred for such appointment and promotion, and competitive examinations shall not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed four dollars per day, but the examination shall be such as is calculated only to ascertain the merits and fitness of the applicant for the position for which he applies, and, if found fitted to fill such position, the applicant’s name shall be placed on the eligible list, and he shall be certified therefrom.”

It is the contention of the appellant that this statute, so far as it declares competitive examinations not to be practicable or necessary, is in conflict with section 9, article 5 of the Constitution, and is, therefore, void, while the respondent claims, and the learned judge who heard the case at Special Term has decided, that what is practicable or impracticable in respect to examination, is, by the Constitution, left to the judgment of the Legislature; and that the judgment of that body is not subject to the review of the courts.

The constitutional provision is as follows:

“ Section 9. Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this State, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the, enforcement of this section.”

Prior to the adoption of the present Constitution, the Civil Service Laws existed solely by statute and were subject to changes or repeal at the will of the Legislature. The first statute was passed in 1883 (Chap. 354). That act was repeatedly amended, and there was .a gradual relaxation of its provisions witli reference to honorably discharged soldiers and sailors who had served in the war, until finally, by chapter 717 of the Laws of 1894, the Legislature declared that the Civil Service Laws did not apply to such persons for any position the compensation of which did not exceed four dollars per day.

Under the decision of the Court of Appeals in the case of The People ex rel. Killeen v. Angle (109 N. Y. 564), persons employed under the direction of the Superintendent of Public Works and in the State prisons were also exempted from the operation of the Civil Service Laws. But with these exceptions the laws were applicable to all other persons in the civil service of the State and the cities thereof, and it was provided that the fitness of applicants for office should be tested by open competitive examination. (Laws of 1888, chap. 354, § 2; Laws of 1883, chap. 354, § 8, as amended by Laws of 1884, chap. 410, § 2.) And. such were the regulations for the city of Brooklyn.

The effect of the provision of the Constitution referred to has recently been considered in another branch of this court in two cases.

In People ex rel. McClelland v. Roberts (34 N. Y. Supp. 641) it was decided by Justice IIebRIOK that appointments in tire Department of Public Works and in the State prisons were now subject to the Civil Service Laws; and in The Matter of Sweeley (12 Misc. Rep. 174) the same justice decided that the constitutional provision had abrogated chapter 717 of the Laws of 1894, and that soldiers .and sailors of the late war are now subject to the operation of said laws, and that the preference in appointment and promotion that the provision in question gives to them, is a preference of selection from an eligible list made up after examination of applicants, upon which list the soldier applicant must secure a standing by examination.

This decision was affirmed by the Court of .Appeals without opinion, all the judges concurring except Judge Peckham, who did not sit.

The effect of the constitutional provision, therefore, is that the whole civil service of the State has been brought under the operation of the Civil Service Laws. Yeteran soldiers and sailors have the preference that the Constitution gives them. This preference is exclusive of all others. The Legislature can give them no more. If, therefore, the law which is referred to in the order of the court is applicable only to veterans, it creates a preference that it was beyond the power of the Legislature to grant, and is void.

The power to determine in what eases competitive examinations are practicable does not include the power to exempt or relieve one class of citizens from such examination and exact them from others. All applicants for the same office, in reference to the manner of examination, must be treated alike.

We are of the opinion that the law, by its express terms, applies only to veterans of the war.

The original Civil Service Law of 1883 contained no provision exempting veteran soldiers and sailors from its operation. That exemption was first made by chapter 410 of the Laws of 1884. That act was an amendment of the law of 1883 ; but the exemption was contained in a new section which was added to the original law. This section related solely to veteran soldiers and sailors. It was amended in 1886 and again in 1894, and in each amendment it related solely to the exemption of soldiers and sailors from the operation of the Civil Service Laws. The law referred to in the order appealed from is, in form, again an amendment of the original section in the statute of 1884. It provides that in recognition of the services of those who served in the army and navy in the late Civil War and were honorably discharged therefrom, they shall be certified as such by the commissioners, and when such honorably discharged soldiers and sailors are applicants they shall be preferred for appointment. It then declares competitive examinations not practicable or necessary, and that the examination shall be in effect non-competitive, and if found fitted to fill the position for which he applies, the applicant’s name shall be placed on the eligible list.

The further provisions of the law relate exclusively to the appointment of soldiers and sailors to positions of which the compensation exceeds four dollars per day. The history and context of the law both show that it relates solely to veterans. It is true that the sentence which declares competitive examinations impracticable, if it stood alone, would apply to all applicants. But it does not stand in the law as a separate sentence, but as part of a provision relating only to soldiers and sailors. It cannot be separated from tbe context, and its plain reference is to the examination of applicants who are veteran soldiers and sailors. It is the soldier who is referred to as “ applicaiit,” and whose name is to be placed on the eligible list after an examination, calculated only to ascertain his fitness, and it is as to such applicants that competitive examinations are declared not to be practicable or necessary. Moreover, if it was intended that this law should be applicable to all applicants for office, the amendment would naturally have been to section 2 of the act of 1883, or section 8 as amended by the act of 1884. Section 2 of the act of 1883 provides for open competitive examinations as to all offices “ as nearly as the conditions of good administration will warrant.”

That those sections of the law were left to stand as originally enacted, and the amendment inserted in the section which related only to veterans, is strong evidence that the Legislature intended it to be applicable only to veterans. It is intelligible that the Legislature, overlooking the effect of the provision of the Constitution which had gone into operation only on January 1, 1895, should desire and intend to give a preference in the appointments to the civil service to the veterans of the war, but I have too much respect for the intelligence of that body to suppose that it intended to declare as its deliberate judgment that a competitive examination was impracticable for an office when the compensation did not exceed four dollars per day, but practicable if the compensation did exceed that sum by the merest trifle.

We are of the opinion, therefore, that the court erred in holding that the law applied to all applicants for office. Its plain purpose is to extend to the veteran soldiers and sailors a preference in appointment which is not given to them by the Constitution, and for that reason it was not within the power of the Legislature, and is void.

But if we could give to this law a general application to all applicants for appointment and promotion, we are of the opinion that it could not be sustained as a valid exercise of power by the Legislature.

That the judgment of the Legislature upon the propriety of laws passed in the exercise of discretionary power is not final, but is subject to the review of the courts, has been frequently decided. Thus, the power of taxation, which is the broadest possessed by the Legislature, is not without its limitation, and its action in reference thereto is constantly reviewed by the courts. In the exercise of the power of eminent domain, although the Legislature may declare the use for which property is sought to be taken a public one, that determination is not conclusive, but may be reviewed by the courts and the question determined as one of fact; and any owner of property, which it is sought to take for a use which is in fact private, may invoke the aid of +lie courts to protect his property against invasion. (Rockwell v. Nearing, 35 N. Y. 302; Matter of Deansville Cemetery Assn., 66 id. 569; Matter of Eureka Basin Warehouse & Manfg. Co., 96 id. 42.)

The exercise of the police power by the Legislature is constantly reviewed, and its action thereon frequently annulled by the courts. (Matter of Jacobs, 98 N. Y. 98; People v. Marx, 99 id. 377.)

And, in reference to the power given to Congress by the Federal Constitution to pass laws which shall be necessary for carrying into execution the enumerated powers of the general government, the Supreme Court of the United States has frequently held that the question whether such laws were properly passed was open to judicial inquiry. (M'Culloch v. Maryland, 4 Wheat. 316; Hepburn v. Griswold, 8 Wall. 603.) Also, see the Legal Tender cases, and the recent cases, as to the validity of the income tax.

These citations show that laws passed pursuant to a constitutional’ limitation that they shall relate to the enforcement or carrying out of a constitutional mandate, are always open to judicial review.

It may be conceded as a general proposition that • it is in the power of the Legislature to determine with reference to what offices or class of offices examinations or competitive examinations are practicable, but whether a particular statute is a valid exercise of that power is a judicial question.

It will be observed that the power of the Legislature is, by the section quoted, restricted to the passage of laws for the enforcement of this section. The limit of legislative power is thus accurately defined, and the validity of every law relating to appointments and promotions in the civil service of the State or of the municipal corporations thereof, is to be tested by the inquiry whether the statute tends to enforce the provision of the Constitution. If it is apparent that such is not the real object and purpose of a law, the courts will interfere and protect the constitutional rights of the people.

The expression “ so far as practicable, ” which is used in this provision of the Constitution, qualifies the declaration that merit and fitness for office shall be ascertained by examination as well as the declaration that such examination shall be competitive, and if the Legislature have power to determine that competitive examinations are not practicable with reference to certain offices they have equal power to declare that all examinations as to such offices are impracticable. It is also clear that if the Legislature may determine that ■examinations are not practicable with reference to offices to which is attached a stated compensation, it may fix the limit of compensation at any sum it chooses, and that it is thus within its power to include within such limitation the whole civil service of the State.

To uphold the law in question, therefore, requires the recognition •of a power in the Legislature to annul the constitutional provision •altogether.

If the Legislature should pass a law which shoiild declare that examinations should be deemed impracticable with reference to all appointive offices in this State, there is no one, I think, who would hesitate to say that such a law was unconstitutional. Yet if we admit the power to pass the law in question, that is precisely what the Legislature may do. Questions of power do not depend upon the manner in which they are exercised. If the power exists it may be exercised at the will of those who possess it, and if the Legislature may declare that examinations are not juacticable with reference to an office with a named salary, it may so declare with reference to all offices in the State. The constitutional guaranty, that merit and fitness for office, to be ascertained by examination, should be the sole basis for .appointment in the civil service, would be of very little worth if the Legislature may so easily destroy it. Under such a construction no advance has been made by the insertion of the principle in the Constitution, as its operation is still made dependent on the will of the Legislature.

In construing the section of the Constitution with reference to appointments in the civil service, we must keep in mind that the Constitution did not, in this respect, establish a new rule or principle of government, but engrafted'upon and-embodied in the fundamental law of the State a principle in reference to appointments to office that had been in operation in the State for upwards of ten years,' and in determining the purpose and intent of this provision of the Constitution we must assume that the convention that framed it and the people who adopted it had in view the then existing laws. Looking, therefore, at the history of the law, the obvious intent in embodying this principle in the Constitution was to restrict the power of the Legislature upon the subject, and to withdraw from its power of determination the question whether merit and fitness should thereafter prevail in appointments to office in the civil service of the State.

It would he difficult to define the extent of the legislative power to declare in what cases examinations or competitive examinations are not to be deemed practicable. It is not necessary to do that in this case, and we shall not attempt it. It is only necessary to say that laws passed in the exercise of that power must have some relation to the objects and ends which the people by adopting the constitutional provision intended should prevail in the civil service of the State. It is too plain to need argument that the practicability or impracticability of an examination to ascertain the fitness of applicants for office has no relation to and does not depend on the compensation attached to the office. A rule upon that subject must have relation to the duties of the office and the character of the services to be performed. Illustrations of the proper distinctions in this respect are to be found in the regulations now existing in the civil service of the State and in the cities.

We are of the opinion that no valid rule on this subject can rest upon the fact of the amount of compensation attached to the office without some reference to the duties of the office and the character of the services to be performed; and the reason is obvious that such a rule has no tendency to enforce the constitutional provision, but annuls it absolutely as to all offices within the limit of compensation named. Such a law is opposed to the rule established in the statute of 1883 and to the experience of the State thereunder. The rule as to open competitive examinations and the manner of its operation and effect were well known to the people of the State when the Constitution was submitted to the popular vote. It had been in operation in the Federal service in this and other States for ten years. That the people intended to embody the result of that experience in the fundamental law of the State is beyond question, and in construing the power of the Legislature over the manner of examination we must give due and proper effect to that purpose and intent.

A rule such as the law under consideration would establish, if we should construe it as having a general application, would not tend in any way to enforce the constitutional mandate, but would pro tcmto annul it, and for that reason it would transcend the power of the Legislature and be void.

The order appealed from must be reversed, and the motion denied.

Pratt and Dykman, JJ., concurred.

Order reversed, and motion denied.