author: Barnard, P. J.: CulleN, J.

text:
    THE CITY OF POUGHKEEPSIE, Plaintiff, v. WILLIAM I. QUINTARD, Defendant.

      Municipal corporations — prohibition against incurring debt — right to issue new bonds to retire old ones maturing — it does 'not create a new debt.

    Tlie charter of the city of Poughkeepsie prohibited it from borrowing money, except that it might incur an obligation which was to be paid in the current year from income, but by a special act it was empowered to issue bonds for the purpose of procuring a water supply. By a subsequent amendment to the charter the water bonds were made a part of the city debt, and the subject of the water supply was brought under the restrictions of the charter, which, in addition to the above restrictions, provided that money should be raised by tax to pay the installments of the debt as it matured.
    Chapter 75 of the Laws of 1878, as amended, authorized a city, whenever any of its bonds matured, or in anticipation thereof, to issue and sell new bonds at a rate of interest not exceeding six per cent, and also at less than the rate of the bonds becoming due, in order to retire such bonds.
    Under this latter act the city, for the purpose of retiring certain water bonds, issued new bonds, some of which were bid for by William J. Quintard, who refused to complete liis purchase because the charter, as he alleged, forbade the city to incur the debt:

      I-Ielcl, that, under chapter 75 of the Laws of 1878, and particularly under its amendment by chapter 526 of the Laws of 1889, the city had a right to exchange a new bond for an old one maturing.
    That such an exchange could not be said to create a new debt or obligation, because the money derived from the new bond was to be applied to the payment of the old one. (Cullen, J., dissenting.)
    Submission of a controversy between tbe City of Poughkeepsie, as plaintiff, and. William I. Quintará, as defendant, without action, upon an agreed statement of facts.
    The question presented was as to the authority of the city of Poughkeepsie to issue new bonds to retire old bonds of the city water debt which were maturing. The plaintiff bid for $19,000 of the new bonds, but being advised that the bonds were illegally issued, refused to pay for them.

      G. B. Herrick, for the plaintiff.

      Ciarle d¿¡ /Sedgwick, for the defendant.
   Barnard, P. J.:

The right to exchange a new bond of the city for an old one maturing is given plainly by chapter 526, Laws of 1889, and the laws amended thereby. The act of 1889 went farther than the preceding acts; in that legislature permission was given to sell new bonds under very guarded conditions, and to pay the old ones with the proceeds of the new. Neither the direct exchange or the issue of the new bonds constitutes a creation of a liability under the city charter. Neither creates a new debt or obligation. As to the exchange it is very plain that a substitution of one bond for another created no new liability. The application of money derived from a new bond to the payment of the old is the same thing in the spirit of the act permitting cities to meet maturing loans by an exchange or sale of new bonds.

Judgment for plaintiff upon submitted case, with costs

Dykman, J., concurred.

CulleN, J.

(dissenting):

This is a controversy without action, submitted under the Code. The sole question involved is the power of the plaintiff to issue bonds, the proceeds of wliicli are to be applied to tbe payment of water bonds maturing tbis year.

Chapter 75, Laws of 1878, as amended by Laws of 1878, chapter 317; Laws of 1884, chapter 244; Laws of 1887, chapter 282, and Laws of 1889, chapter 526, authorizes any village, city, town or county whenever any of its bonds mature, or in anticipation thereof, to issue and sell new bonds at a rate of interest not exceeding six per cent, and also less than the rate of the bonds becoming due, to retire such bonds.

The contingency on which the plaintiff has assumed to issue the bonds in controvery is exactly the one contemplated by this statute, and it is not denied that the plaintiff would have the necessary power to issue the bonds except for the restricted provisions of the city charter.

The charter provision on this subject now stands (Laws of 1883, chap. 523) as follows:

Section 125. “The common council shall not have power to borrow, and is hereby expressly prohibited from borrowing any money on account of the city, except as herein provided. The said council shall not create any pecuniary obligations whatever on the part of the city which shall not be payable in the current year, and which cannot be discharged from the income of the same year.”

This provision has been in the charter, substantially, in the same form since the incorporation of the city in 1854. The object for which the maturing bonds were originally-issued was not authorized by the charter or its amendments. It. was by a special act (chap. 333, Laws of 1867) that the city was empowered to acquire a water supply and to issue bonds therefor. But by the act of 1883 the water supply was brought under the charter provisions and under the charter restrictions. It is to be • observed that while power is given by this act to the water commissioners, constituted thereby, to acquire on behalf of the city lands and water, the authority to create debt therefor given by the original act -is omitted. At the same time the debt theretofore contracted on this account is incorporated into the general debt of the city, because bj section 223 the five per cent on the amount 'of water stock levied annually as a tax is to be placed in the public debt fund. Therefore, after the amended charter of 1883, the water debt stood on the same footing and was subject to the same provisions of law as the other debts of the city.

The question then arises whether the act of 1878 shall prevail over the charter provision governing the city of Poughkeepsie. Admitting that the amendments to that act subsequent to 1883 make it the later statute on the subject, still the rule is, that a general act will not be construed to repeal or amend a prior special act unless such intention is manifest. (Matter of the Evergreens, 47 N. Y., 216; Matter of Central Park, 50 id., 497; Buffalo Cemetery v. Buffalo, 118 id., 61.)

It is contended, however, on behalf of the plaintiff, that the provision of the charter cited is no more than a statutory expression of the general rule of law, that municipal corporations cannot borrow money without authority. We think the language used is too broad and comprehensive to be thus limited. But this is not the only charter provision on the subject. By section 93 it is made the duty of a common council to levy annually a tax sufficient to meet any installments of public debt maturing. It was thus not only directed that no debt should be incurred except as provided for in the charter, but also that all debt should be paid as it matured. To construe the act of 1878 as authorizing the plaintiff to issue these bonds would obliterate both these charter provisions. This, we think, the well settled rules of statutory construction will not permit. It was the duty of the common council to raise the amount necessary to pay the maturing bonds by tax.

We think that the bonds are not authorized by law, and there should be judgment for the defendant on submitted case, with costs.

Judgment for plaintiff on submitted case, with costs.


source: Caselaw Access Project

author: Cullen, J.: Dykman, J.:

license: Public Domain

text:
    HENRY H. ADAMS, County Treasurer of Kings County, Plaintiff, v. THE EAST RIVER SAVINGS INSTITUTION, Defendant.

      Municipal corporations — construction of section 11 of a/rticle 8 of the Constitution of the State of New Yor7c, limiting the power of certain counties andcities to incur debt.

    Section. 11 of article 8 of the Constitution of the State of New York, as amended in 1885, limiting the power of certain counties and cities to incur debt, provides that “No county containing a city of over one hundred thousand inhabitants, or any such city,” shall be allowed to become indebted to an amount which, including existing indebtedness, shall exceed ten per cent of the assessed valuation of the real estate of such county or city subject to taxation, and that all indebtedness in excess thereof shall be void, except existing indebtedness and certificates of indebtedness issued in anticipation of taxes, and bonds issued to secure a water supply, provided a sinking fund is created for their payment.
    The county of Kings, in which is the city of.Brooklyn, containing over one hundred thousand inhabitants, duly offered for sale certain county bonds at a time when the debt of the county of Kings, excluding-from the county real estate so much thereof as lies in the city of Brooklyn, exceeded ten per cent of the assessed valuation of sucli balance of the real estate in the county.
    A bidder for the county bonds refused to complete his purchase upon the ground that the issue of the bonds was in violation of the State Constitution.

      Held, that water bonds constituted a part of the debt to which the ten per cent limitation referred.
    That section 11 of article 8 authorized the county, without regard to the indebtedness of the city, to issue bonds to the extent of ten per cent of the entire assessed valuation of the county, including therein the assessed valuation of the real estate in any city in the county.
    That there was nothing in the section to justify the construction that the power of' the county to incur debt was limited to ten per cent of the assessed valuation of such real estate as laid outside of the city limits.
    That the county and the city were separate branches of the government, acting, independently, and that by the Constitution neither was made dependent upon; the indebtedness of the other for its power to incur a debt.
    Submission of a controversy between Henry H. Adams, county treasurer of Kings county, as plaintiff, and tbe East River Savings Institution, as defendant, without action, upon an agreed statement of facts.
    The question presented related to the validity of certain county bonds of Kings county, for the price of which the defendant had given its check to the plaintiff, and as to the defendant’s obligation to pay, such cheek.

      It appeared in the statement of facts submitted, among other things, as follows:
    II. The county of Kings contains the following political subdivisions, namely: The town of Flatbush, the town of New Utrecht, the town of Gravesend, the town of Flatlands and the city of Brooklyn.
    III. The city of Brooklyn now is, and at and prior to the 1st day of January, 1885, was a city of over one hundred thousand inhabitants.
    IV. The assessed valuation of the real estate of the county of Kings, and of its said several subdivisions, subject to taxation, as the same appeared by the assessment-rolls of said county on the last assessment for State or county taxes, prior to the incurring of the indebtedness herein referred to, being that in and for the year 1891, was as follows:
    Within the town of Flatbush...........$9 , 725 »210
    Within the town of New Utrecht....... 4,915,337
    Within the town of Gravesend......... 3,262,825
    Within the town of Flatlands.......... 1,350,286
    Total without the city of Brooklyn.............. $19,253., 658
    Within the city of Brooklyn..................... 448,802,470
    Total assessed valuation of the real estate of the county of Kings, including the city of Brooklyn, $468,056,128
    V. That the indebtedness of the county of Kings on May 4,1892, was as follows:
    Refunding loan................................ $2,687,500
    State tax registered loan........................ 119,000
    Hall of Records loan............................ 269,000
    Kings county jail loan........................... 45,000
    Department of charities and corrections (supplies)... 100,000
    County farm (St. Johnland) loan.................. 2,639,000
    Thirteenth regiment armory loan................. 280,000
    Fourteenth regiment armory loan................. 100,000
    Thirty-second regiment extension loan............. 62,858
    Thirty-second regiment extension fitting and furnishing loan................................. 18,000
    $6,320,358

      To addition, to tbe foregoing indebtedness tbe county of Kings has outstanding certificates of indebtedness given in anticipation of tbe collection of taxes, amounting, on May 4, 1892, to................. $850 > 000
    . VI. Tbe indebtedness of tbe city of Brooklyn on said 4th day of May, 1892, was as follows :
    Gross debt....................................$47,629,160 93
    The sinking fund of tbe city of.
    Brooklyn on tbe 4th day of May,
    1892, consisted of:
    1. City bonds or stock held in. sinking fund............... $31145>160 93
    2. Cash in trust companies....... 418 >042 42
    VII. Included in tbe above gross debt of the city of Brooklyn are certificates of indebtedness, given in anticipation of tbe collection of taxes, to tbe amount of $3,000,000.
    VIII. Included in tbe gross debt of tbe city of Brooklyn, mentioned in the above paragraph VI, are bonds issued for supply of water prior to and outstanding on tbe 1st day of January, 1885, and still unpaid, to tbe amount of $7,660,000. Also bonds issued for supply of water since tbe 1st day of January, 1885, and all payable in less than twenty years from tbe dates of their issue, in amount, $5,500,000. Such sinking funds were created for tbe foregoing-bonds as were required by tbe various statutes applicable thereto.
    Tbe questions submitted to this court in this case were as follows:

      First. Is tbe issue, or proposed issue, of tbe bonds offered for sale, as herein stated, in violation of tbe Constitution ?

      Second. Is tbe plaintiff entitled to collect tbe amount of said check from the defendant upon tendering to it the said $90,000 of bonds, or is tbe defendant entitled to tbe cancellation and return of its said check ?

      William C. De Witt and John B. Meyenborg, for tbe plaintiff.

      Clarence F. Birdseye, for the defendant.
   Cullen, J.:

Tbe question presented by this case is the interpretation to be placed upon the amendment of 1885 to section 11, article 8 of the Constitution of the State, limiting the power of certain counties and cities to incur debt. It is unnecessary to recapitulate the facts which are fully detailed in the agreed statement submitted to the court. It is sufficient to say that if the water bonds of the city of Brooklyn are to be included in estimating its debt, and if the power of the county to incur debt is limited, either by the actual debt of the city of Brooklyn, or by excluding from the real estate of the county such part thereof as lies within the city of Brooklyn, for the purpose of estimating ten per centum on its assessed value, then the bonds for which the defendant’s check was given are void. But if either of these contentions fail, then the bonds are good.

The provisions of the Constitution under examination are as follows :

“ No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment-rolls of said county or city on the last assessment for State or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except' as herein otherwise provided. No such county or such city whose present indebtedness exceeds ten percentum of the assessed valuation of its real estate subject to taxation,.shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of sucli taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the 'bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of ■the "said, bonds for their redemption, by raising annually a sum. which will produce an amount equal to the sum of the principal ■and interest of said bonds at their maturity.”

The first question is, whether the water debt is to be counted in ■determining whether the ten per cent limit of a city has been reached or exceeded. We think it is-. The constitutional provision is, that no county or city shall, for any purpose, go beyond the prescribed percentage. No language could be more forcible or broad. This is qualified by the subsequent provision that the section shall not be construed to prevent the issuance of certain bonds for water supply. Full effect can be given to both provisions. A city may, for water supply, incur debt though in excess of the limit, but it cannot contract a debt in excess of the limit for any other purpose, including in the estimate of debt any already incurred for water supply. This is not only the strictly accurate interpretation of the language, but the natural one. Had the intention been to exclude the water debt, the proviso would have been omitted and the exception placed after the words “ for any purpose or in any manner.” This brings us to the question of the connection between the county and city debt.

The learned counsel for the defendant contends that it was the intent of this constitutional provision to restrain the creation of debt either by the city or county, which, taken together,. would exceed ten per cent of the assessed value of the real estate lying within the county or city; or, in other words, that real estate should not bear the burden of a greater debt, both for city and county purposes, than ten per cent of its assessed value. The rules for constitutional construction have often been enunciated. While the whole instrument is to be considered, and the real intent should prevail over the strict letter of the provision, still that intent must be found in the language unless the letter would lead to palpable injustice, contradiction or absurdity. (People ex rel. Gilbert v. Wemple, 125 N. Y., 485; Newell v. People, 7 id., 9.)

“ If the language is unambiguous, the words plain and clear, conveying a distinct idea, there is no occasion, to resort to other means of interpretation. Effect must be given to the intent as indicated by the language employed. Especially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with, care, and adopted by the people as the organic law oi the State.” (Settle v. Van Eurea, 49 N. Y., 280.)

This rule is peculiarly applicable to the case in hand, for the case is singularly barren of external sources from which to draw-light. The limit prescribed by the Constitution is wholly arbitrary,, and necessarily so. While most citizens would recognize that, excessive debt by localities is an evil to be checked, the question of what debt is excessive would produce the widest diversities-of opinion, diversities to be composed only by compromise at an arbitrary figure. This is the first provision of the character in any of the Constitutions of this State, so we are equally without tradition or policy in this respect. We must, therefore, decide the-, case on the very words of the Constitution.

The language of the Constitution is disjunctive — “no county * * * or any such city shall be allowed to become indebted * * *- to an amount which * * * shall exceed ten per centum of the assessed, valuation of the real estate of such county or city subject to taxation.” The literal and grammatical reading is that the county shall not be-allowed to incur debt beyond a certain per cent, and that the city shall not be allowed to incur debt beyond the same per cent. Separate restrictions are imposed on each. This is so clear to my mind as to forbid elaboration. It is only when we consider that the county includes, the city, and that lands in the latter are charged with the debts of both corporations, that the argument is suggested that the Constitution may have intended to prescribe a single rate or limit for the-aggregate of both debts. To give force to this argument it must appear that the natural and appropriate manner to restrain local debt would be by a single rate for the joint debt of county and city. We think that the reverse of this proposition is true. • While the Constitution intended to protect the property of the taxpayers from excessive local debt, it deals with this subject by placing restrictions on the agencies by which such burdens would be imposed. The State has always been divided into counties, and the county composed of towns and cities. The counties and cities (with the exception of New York) have been separate and distinct governmental agencies and corporations. Each has been in the habit of contracting debt, though the abuse of this power by counties has been of rare occurrence. But the debts -have been separate and contracted for different purposes — • those of counties for county purposes — those of cities for city purposes. Though a sharp line of demarkation has not always been observed between the charges and expenditures of the county and those of the city, in the main the difference in character between these two classes of public burdens has been recognized. The powers of these separate branches of government are exercised by different public officers, acting not together, but each independently of the other. The effect of a single joint limit on both would be to make each subservient in its action to the other. No prudence or restraint on the part of the 'county authorities would enable them to prosecute a public improvement requiring the creation of debt, were the city authorities extravagant, and the same would be the case with the city. These considerations must have been palpable to the legislatures which passed this amendment, and to the people-who enacted it. So far as a priori reasoning can go, it would seem plain that a practical legislator would have seen that the appropriate way to restrain local debt was by separate restrictions on county and city, and not by a single restriction on the combined action of both. The difficulty in the practical working of the construction contended for has been apparent to the learned counsel for the defendant, and he has not inaptly asked: “ Is it to be a race for the diligent between the city and county to see which shall first exhaust the combined debt limitation ? ” To obviate the difficulty he presents an ingenious solution of the problem.

He claims that the limitations on county and city are separate and distinct, but that in estimating the capacity of the county to contract debt only the real estate of the county lying without the city is to be reckoned. There are several objections to this construction. It would require us to import into the Constitution words that are not there, that is, after “county” the qualification “excluding therefrom the real estate in any such city.” This is not admissible. (People v. Wemple, supra.) Such construction would be inconsistent with the general scheme of the Constitutional provision. Whatever be the rate prescribed by the Constitution, be it several or joint, it is clear that the capacity to incur debt, whether of city or county, was to be proportioned to its resources and to the real estate on which the burden was to fall. The real estate in the city bears tlie charge of the county debt to the same extent as other real estate in the county. Yet the extent of the capacity of a county to incur debt would, under this construction, depend not on the value of all its real estate, but only on a portion of it, and that, too, a portion which might be more heavily burdened with debt than the real estate excluded, for as to town and cities under one hundred thousand in population there is no debt restriction. It would also result that the largest and wealthiest counties, whose resources are not only the greatest but whose necessary expenditures are presumably the largest, would have the least power to contract debt. We, therefore, conclude that, 'under this constitutional provision, city and county, each may incur debt to the extent of ten per cent of the assessed value of all the taxable real estate within it, and that the bonds of the county purchased by the defendant are valid obligations.

The criticism that this construction doubles the limit or rate of debt prescribed by the Constitution is more specious than sound. It begs the very question in dispute — how that rate is to be computed or ascertained ? Even if it be assumed that this subject first presented itself to the minds of legislatures and people from the standpoint of aggregate debt by all local governments, and of every local character, we have seen that, if not necessary, it would have at least been wise in drafting a restriction to apportion the limit between the city and county so that each might be responsible for its own acts. But we think it should rather be assumed that the legislature and people considered the subject from the point of view expressed in the Constitution, that is, not as to the aggregate of local debt, but as to each character of local government, what was a proper limit, considering not only its resources but also its needs. It is not to be presumed that the legislature or local authorities will seek to evade this severance of the power to incur debt by transferring to the county the burden of expenditures justly a city charge. If the attempt were made, Ave do not say that it would succeed.

Judgment for plaintiff on submitted case, with costs.

Dykman, J.:

A controversy has arisen between the parties to this action which has been submitted to the court for determination upon a •conceded state of facts, of which the following is a substantial recitation:

The county of Kings contains the following political subdivisions, namely: The town of Flatbush, the town of New Utrecht, the town of Gravesend, the town of Flatlands and the city of Brooklyn, which city contains over one hundred thousand inhabitants.

Under the authority of several statutes pertaining to the county •of Kings, the plaintiff, as such county treasurer, in the month of April, 1892, offered for sale the bonds of the county amounting to $620,000.

Bids in excess of that amount were received, and the defendant m this action bid for $90,000 of such bonds, which were awarded to it, to wit, $90,000 at $91,104, which had been so bid by it therefor.

The defendant thereupon gave its check to the plaintiff for the sum of $91,104, but stopped its payment the next day and refused to complete its purchase, assigning as a reason for such refusal the invalidity of the bonds by reason of their prohibition by the Constitution of the State; the specific objection being that they were in excess of the constitutional limitation of the indebtedness of the county.

The plaintiff retained the check of -the defendant and claimed the right to collect the same upon a teuder of the bonds, while the defendant desires the return of the check and relief from obligation to receive the bonds.

These adverse contentions gave rise to the two following questions which are submitted to the court for judicial answers :

First. Is the issue or proposed issue of the bonds offered for sale, as herein stated, in violation of the Constitution ?

Second. Is the plaintiff entitled to collect the amount of said check from the defendant upon tendering to it the said $90,000 of bonds, or is the defendant entitled to the cancellation and return of its said check ?

The answer to these questions is to be dictated by section 11 of article 8 of the Constitution of the State of New York, and the portion of that section which directly applies to the present controversy is this: “No county containing a city of over one hundred thousand inhabitants, or any such city shall be allowed to become indebted for any purpose or in any manner to an amount which including existing indebtedness shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for State or county taxes prior to the incurring of such indebtedness, and all indebtedness in excess of -such limitation except such as may now exist shall be absolutely void, except as herein otherwise provided.”

The excepted provisions are immaterial here. The section as it now stands was adopted by the people in November, 1884, and went into operation the January following.

The language employed in the construction of the section is significant and expressive. The first word of the sentence quoted is a term of denial, expressing a negative, and applies to counties containing a city of over one hundred thousand inhabitants, while the uniting word, “ or,” is a disjunctive conjunction, connecting the two clauses, and expressing at the same time a separation, and has-the same effect where it stands as the word “nor.” It disjoins the one from the other and applies the limitation individually the same as if the sentence had been constructed as follows: Neither a county containing a city of over one hundred thousand inhabitants, nor any such city shall be allowed, etc.

It must be remembered that we are here dealing with a restriction, and not with a grant of power. The legislature has bestowed the power upon the county to contract the debt and issue the bonds in question, and they are valid if their issuance was not inhibited by the Constitution.

The powers of the general government are derivative and enumerated in the Constitution of the United States ] and when we examine that instrument we search for grants of legislative power, either express or implied, but when a State law falls under examination, we look for limitations, because the presumption is in favor of the validity of the statute. Such presumption arises from the absolute power of the legislature as the representative of the people in their sovereign capacity, except so far as it is restrained and limited by the Constitution, which is the paramount law.

In a general way of speaking, we usually say the people are sovereign and the source of all political power, and when they foi'm a government they may invest it with all the sovereign power which they possess, and the presumption is that they do so in the absence of evidence to the contrary. But as the people do limit the State governments which they set up, and also themselves, we must, as we have said in this and similar cases, search for such limitations.

As our examination of the constitutional provision applicable to this case leads us to the conclusion that it has not been violated by the legislature under which the plaintiff has acted, our conclusion is in his favor upon the question sxxbmitted.

Judgment for plaintiff on sxxbmitted case.


author: Dykman, J.:

text:
    THOMAS POOLE SOPER and Another, Appellants, v. GEORGE W. BROWN, as Trustee under the Will of M. LOUISA BROWN, Deceased, Respondent.

      Will — “ lawful issue ” — when it means not children simply, but also descendants of children.

    Thomas Poole died seized of certain premises, leaving a will by which he devised to his executors in trust a certain portion of his estate for each of four daughters for life, including in such trust one of such portions for his daughter Eliza for life, and directed that after her death it “shall go in fee simple, as tenants in common, to the lawful issue of my said daughter Eliza, if more than one, share and share alike; and for the want or in default of such issue, then to all my grandchildren, who may then be living, as tenants in common, his, her or their heirs or assigns, forever.” Eliza had children, both of whom died before her, leaving children surviving them.
    To his daughter, Letitia, Thomas Poole gave a legacy of twenty-five dollars, leaving the residue of his property to his four other daughters and to the survivor for life, and thereafter to his grandchildren.
    In an action of ejectment brought by children of Letitia, who were living at the time of Eliza’s death, against a person claiming title, to certain of the real estate-left by Poole, under the grandchildren of Eliza;

      Held, that by the use of the words'“lawful issue” of my said daughter Eliza the testator did not mean to include simply her children, but also their children, “issue” being used in the sense of “descendants.”

      Appeal by the plaintiffs, Thomas Poole Soper and George Washington Soper, from a judgment of the Supreme Court, entered, after a trial before the court at the Kings Circuit, in the office of the clerk of the county of Kings on the 25th day of April, 1892, dismissing the complaint and adjudging that upon the death of Letitia Soper, a daughter of Thomas Poole, her children, the plaintiffs, took no right, title or interest in the premises described in the complaint.

      George H. Adams, for the appellants.'

      Josiah T. Maream, for the respondent.
   Dykman, J.:

This is an appeal from a judgment in favor of the defendant ■entered upon a decision of the court.

The action was brought to recover a lot of land in the city of Brooklyn which was originally a part of a farm belonging to Thomas Poole, who died in 1831, seized and possessed of the premises, leaving a last will and testament, which has been duly proved and admitted to probate, by which he devised the farm, including the property in question, to his executors in trust to permit his daughter Eliza to occupy the same for and during her natural life in their discretion, or to rent the same during the same period and take and receive the rents and profits accruing from the same, and therewith make all necessary repairs, and pay all taxes and other necessary charges and expenses in and about the same, and after deducting such payments, to annually pay over the residue of the rents and profits to Eliza for and during her natural life, to her ,sole and sepai’ate use and benefit.

Then follows the clause which produces the contention in this ■suit in these words: “ And upon the death of my said daughter Eliza, my further will is that the aforesaid two dwelling-houses and piece or parcel of land and meadows, and piece or parcel of woodland above described, and in this clause of my will devised for the use and benefit of my said daughter Eliza, with the appurtenances thereunto belonging' shall go in fee simple, as tenants in common to the lawful issue of my said daughter Eliza, if more than one, share and share alike, and for the want or in default of such issue, then to all my grandchildren who may then be living, as tenants in common, his, her or their heirs or assigns, forever.”

Substituting the names of the other three daughters, respectively, and the descriptions of the other parcels of real property, there are three other devises in the same language.

The residuary clause of the will provides for the conversion of all the personal property into money and for the collection of all debts, so as to make one total sum, and after 'the payment of debts, legacies, etc., the residue is bequeathed to the executors in trust to invest and pay and apply the income annually to Mary^ Eliza, Margaret and Sarah, in equal shares during their joint lives, and to the survivors and survivor of them; “ and after the decease of such survivor, my will is that the said moneys so invested or placed out at interest as aforesaid shall go to and be equally divided between all my grandchildren then living.” <

Thomas Poole, the testator, left him surviving four daughters to whom he gave life estates, and at his death Eliza had two children living, both of whom died during her lifetime leaving children, and Eliza died in 1882.

The plaintiffs in this action are the children of Letitia Soper, wife of Enoch Soper, who was a daughter of the testator, to whom he gave a legacy of twenty-five dollars, and consequently the plaintiffs are two of the six grandchildren of the testator who were living at the death of his daughter Eliza.

The defendants derived their title from the grandchildren of Eliza, and their contention is that the descendants of Eliza succeeded to the title under the word “ issue,” while the plaintiffs claim that by the word “issue” the testator meant “children.”

The determination of the appeal, therefore, depends upon the ascertainment of the intention of the testator in the use of the word “issue” where it is employed in this will. It is a flexible word, whose signification is sufficiently broad to include remote offspring. It denotes descendants much more naturally than the word “ children ; ” and if the testator had intended to give the property to the immediate issue of his daughter, he would have used the • term “ children ” to manifest that design.

One fact remains yet unnoticed; the second item of the will of Thomas Poole is this: “ I give and bequeath unto Letitia Soper, tlie wife of Enoch Soper, of Williamsburgh, in the town of Bush wick, in the said county of Kings, the sum of twenty-five dollars, as a small memento of my esteem.”

Letitia Soper was a daughter of the testator, as the parties admit, but the disclosure of the fact was studiously avoided by him in this bequest.

The third clause commences thus: “ I give and bequeath unto my two daughters, Margaret and Sarah, all my household and kitchen furniture.” * * *

The marked contrast between the two bequests shows a careful and considerate use of words.

Then, by the next four items of his will, the testator divided his real, property into four parts, and gave a life estate in each fourth to each of his four daughters, Mary, Eliza, Margaret and Sarah, and the fee to their lawful issue.

Thus the testator excluded his daughter Letitia from any share of his real property, and divided it between his four daughters for their use and enjoyment during their respective lives, with a limitation over in favor of their issue ; and it is a natural conclusion that he intended to give the share apportioned to each daughter for life to their offspring, immediate or remote, and not to the descendants of the child excluded.

We conclude, after a careful examination and consideration of the case, that the testator designed to leave the real property which he left in trust for each of his four daughters so that it should, at their deaths, respectively, go to their descendants.

We have not examined the question in the light of authority, because its solution depends so much upon the intention of the testator in the use of the word that we can derive but little aid from adjudicated cases.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred ; Cullen, L, not sitting.

Judgment affirmed, with costs.


author: Oullen, J.:

text:
    GEORGE SWEET, as Executor of JULIA A. ROZELL, Deceased, Respondent, v. HENRY K. BURNETT, Appellant, Impleaded with Others, Respondents.

      Will — what passes under a gift of “money."

    Tlie will of Julia A. Rozell contained the following clause: “From the money of my husband's estate, now belonging to me, I desire that my funeral and other expenses be paid, and out of the same I give to Robert Nickerson the sum of $100, to Francis Nickerson the sum of $100. * * * The residue of said money 1 wish to have divided equally between my husband’s nieces and nephews.”
    The husband of the testatrix had died ten months before her, and had left to her all his property, which consisted of a deposit in a savings bank and other personal property, and also a farm. The estate was still in' the hands of the husband’s executor when-the .testatrix died.
    In an action brought by her executor to obtain a construction of her will:

      Held, as the testatrix, had she lived, would have received the personal property from the executor of her husband in the form of money, that, under the word “money” in her will, all the proceeds of the personal property of her husband passed.
    That the farm did not pass under the word “money,” there being nothing in the will to show such an intention, “money” not being given so comprehensive a meaning.
    Appeal by the defendant Henry K. Burnett from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 2d day of April, 1892, construing the will of Julia A. Rozell, after a trial before the court at the Dutchess Special Term.
    The action was brought to obtain a construction of the will of Julia A. Rozell.

      L. B. Sackett, for the appellant.

      Herrick <& Losey, for plaintiff and respondent.

      Hackett & WilUams, for Elizabeth Rozell, defendant and respondent.

      Allison Butts, for Stephen Rozell and Samuel Rozell, defendants and respondents.

      Hufcut & Travis, for Obed Rozell and Josephine McElwin, defendants and respondents.
   Oullen, J.:

The question presented in this ease is, what passes undér the term “ money,” in the second paragraph of the testator’s will ? That paragraph is as follows:

From the money of my husband’s estate now belonging to me, I desire that all my funeral and other expenses be paid, and out of the same I give to Robert Nickerson the sum of one hundred dollars • to Francis Nickerson the sum of one hundred dollars. * * * The residue of said money I wish to have divided equally between my husband’s nieces and nephews.”

The testator’s husband had died ten months prior to her own decease leaving all his property, real and personal, to his widow. The husband’s 'estate consisted of a deposit in the savings bank, notes due him, some articles of household' furniture, farm products and the like, and a farm. At the death of the wife the husband’s personal estate was still in the hands of his executor.

In Smith v. Burch (92 N. Y., 228), is to be found an extensive review of the authorities on the construction of the term money. The rule enunciated by the court is, that ordinarily, standing alone, the term means only that which passes current as money, including bank deposits; but when read with the context of the will it may be held to include any kind of personal property. We think that the testator intended by the word money in this will to include all the proceeds of the personal estate of her husband. The estate has not been settled. It was the duty of the executor to convert the personal property into money, and the widow would receive it only in that form unless by agreement with the executor to the contrary. The sums in the different investments might vary before the estate was transferred to her from causes entirely independent of her acts. The executor might use the moneys collected on the notes, or those deposited in the savings bank, to pay debts or charges against the estate. The testator must be assumed to have kuowu how her own funds were invested, but not necessarily the investment of her husband’s property. But the dominant consideration with us is that in' law she would receive the personal estate of her husband as money, and, therefore, those proceeds are properly described as such.

But we think there is not sufficient in the will to show that the testator intended by the term of the word “ money ” to pass the farm devised to her by her husband, even assuming the word “ money ” could, under any circumstances, be given such a comprehensive meaning. The only authority justifying such an interpretation is Estate of Miller (48 Cal., 165). This case is cited in the opinion delivered in Smith v. Burch (supra), but the Court of Appeals in its own declaration of the rule of construction limits money to personal property.

The judgment appealed from should be modified so as to declare that the farm of the testator did not pass to the husband’s nephews and nieces, but descended to the testator’s brother and heir-at-law, the defendant Burnett.

In other respects the judgment should be affirmed, without costs of this appeal to either party.

Dyicman, J., concurred; Barnard, P. J., not sitting.

Judgment modified by declaring that the farm did nor pass to the husband’s nephews and nieces, but passed to the testatrix’s brother and heir-at-law, otherwise affirmed, without costs of this appeal.


author: Cullen, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT H. MOSES, Appellant.

      Sabbath breaking —fishing on Sunday in a private pond by permission.

    In a prosecution of Robert H. Moses, charged with fishing on Sunday in a private lake, where he was by permission of the owner, it did not appear that he created any disorder or that he disturbed the peace, or that his acts were witnessed by anyone except the complainant.

      Held, that he was properly convicted of -a misdemeanor under section 265 of the Penal Code, prohibiting “all shooting, hunting, fishing, playing, horse-racing, gambling or other public sport, exercises or shows,” on Sunday.

      Semble, that it would be difficult to draw any distinction between a “ public ” fishing and a “ private” fishing.
    Appeal by the defendant Robert H. Moses from a judgment of the Court of Sessions of Orange county, rendered on the 21st day of September, 1891, affirming a judgment of a Court of Special Sessions of the town of Warwick convicting him of the offense of Sabbath breaking.

      Matthew Daly, for the appellant,

      M. H. Hirsehberg, for the respondent.
   Cullen, J.:

The defendant was convicted before a justice of the peace in Orange county of a misdemeanor, in fishing on Sunday, and fined five dollars. This appeal is from the judgment of the Court of Sessions affirming such conviction.

But one question is presented to us on this appeal. That the defendant was fishing on Sunday is conceded; that the lake where he fished was private property and that he had the privilege of fishing in it was also conceded. It is not shown that he created any commotion or disorder, or that his acts attracted or were witnessed by any person other than the complainant, or disturbed the peace. On these facts the plaintiff contends that he was guilty of no offense; that, under the authority of People v. Denin (35 Hun, 327), to constitute the crime the act nrnst disturb the repose of the community. "We think not. Section 265, Penal Code, prohibits “ all shooting, hunting, fishing, playing, horse-racing, gambling or other public sport, exercises, pastimes or shows,” It will thus be seen that while only public sports, exercises and j>astimes are forbidden, all shooting, hunting and .fishing, etc., are inhibited. The decision in People v. Denin proceeds on this distinction. In fact, it might be very difficult to draw any distinction between a “ public ” fishing or hunting and “private ” fishing or hunting. The validity of such legislation cannot be questioned in this State. (Nuendorf v. Duryea, 69 N. Y., 557; Lindmuller v. People, 33 Barb., 548.)

The question of how far these restrictions should be carried is for the legislature, not for the courts;

Judgment and conviction appealed from affirmed.

Barnard, P. J., and Dykman, J., concurred.

Conviction and judgment affirmed.


text:
    MONROE DAIRY ASSOCIATION, Respondent, v. JOHN STANLEY, Appellant.

      Milk-can act — it is constitutional — effect of a mere possession of the can — knowledge by the offender that the can was on his premises not a necesscwy element of the offense.

    Chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, an act passed to protect owners of milk and cream-cans, is constitutional.
    The legislature has power to enact that the possession or control of such cans, without consent, shall be presumptive evidence of an unlawful use or sale.
    The court, upon the trial of an action to recover a penalty under the act, refused to charge that if the defendant never knewHhat the can was on his premises he was not liable.

      Meld, that the refusal was correct, since the statute does not make knowledge essential to the commission of the offense.
    Appeal by the defendant John Stanley from a judgment of the Supreme Court, entered in the office of the clerk of Orange county on the 30th day of November, 1891, upon a verdict for the plaintiff for fifty dollars, rendered on trial at the Orange Circuit before the court and a jury.

      Richard J. Lewis and W. IL. Regan, for the appellant.

      Eugene D. Sfo7cem, for the respondent.
   Dykman, J.:

This action was commenced for the recovery of a penalty of fifty dollars under chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, entitled “An act in relation to milk-cans.”

The statute, so far as it is invoked for the sustenance of this action, is this: “ It is hereby declared to be unlawful for any person or persons, without the consent of the agent of the owner or owners or shipper, or shippers, to use or sell, dispose of, buy or traffic in any milk or cream-can or cans belonging to any dealer * * * having the name.or initials of the owner * * * stamped, marked or fastened on such can. or cans.” (Laws of 1887, § 1.)

“ The fact of any person or persons, without the consent of the agent of the owner, * * * either using, selling, disposing of, buying, trafficking in, or having in his, her or their possession, or under his, her or their control, any such milk or cream-can or cans, is presumptive evidence of the unlawful use or sale.” * * * (Laws of 1887, § 2.)

“ Any person or persons who shall, in violation of this act, either use, sell, dispose of, buy, traffic in, or have in his, her or their possession, any such can or cans, or who shall willfully mar, erase, or change by remarking, or otherwise, the said name or initials of any such owner or owners, dealer or dealers, shipper or shippers, so stamped, marked or fastened upon said can or cans, as in this act provided, shall be hable to a penalty of fifty dollars for any such can either so used, sold, disposed of, bought, trafficked in, or found in his, her or their possession; such penalties may be recovered by action in the Supreme Court of this State, with costs and disbursements, and the place of trial of such actions may be in the county in which the owner or owners, dealer or dealers, shipper or shippers of such can or cans may reside at the commencement of such action.” (Sec. 4, as amended by Laws of 1890.)

Prior to the passage of this law the farmers of the central, southern and eastern portions of the State of New York had become largely engaged in the business of producing milk for the New York market by reason of the facilities for the rapid transportation of that article afforded by the different railroads leading to that great mart of trade.

The business required many milk-cans, at considerable expense, and the owners found by experience that their cans were not returned. Their detention became so frequent and so extensive that it could not be attributed to accident, and was evidently the result of design.

In that state of affairs application was made to the legislature for the enactment of a law which would terminate that-great and increasing evil, and the statute cited was made for that purpose.

It was evidently essential that the law should be stringent and comprehensive in its. scope and operation if it accomplished the purpose for which it was designed.

Before the passage of this law it was easy and comparatively safe for a dealer in New York city to retain a milk-can, even though he did so with a felonious design, for if he was detected he could easily attribute its detention to mistake or oversight and surrender its possession.

It was, therefore, necessary to make the possession or control of cans without consent presumptive evidence of unlawful use in violation of the statute, and it was clearly within the competence of the legislature to make such a rule of evidence. (People v. Turner, 117 N. Y., 233; People ex rel. Miller v. Ryder, 124 id., 504.)

Turning, now, to the record in this case, we find the complaint to aver that one of the milk-cans of the plaintiff was found in the possession of the defendant at his place of business in the city of New York on the 10th day of August, 1891, and that such possession was without the consent of the plaintiff or its agent, wherefore judgment was demanded for the sum of fifty dollars, with costs.

The cause was tried at the circuit before a jury, and the plaintiff introduced testimony tending to establish the allegations of the ■complaint, and the defendant produced evidence tending to show that the can was not actually in his possession. The trial judge sent the case to the jury under a charge which followed the provisions of the statute and upheld them, and the jury rendered a verdict in favor of the plaintiff. The defendant has appealed from the judgment entered upon that verdict, and thus presented to us questions of law only.

The counsel for the defendant requested the court to charge the jury, that if the defendaut never knew that the can was on the premises he was not liable, to which the court replied: “ He is liable if it was in his possession; I do not go further than that,” and the defendant’s counsel' excepted.

As we have already seen, it was the design of the statute to make possession or control presumptive evidence of the unlawful use which brought liability to the penalty, without proof of wrongful or felonious intent. Neither was proof of knowledge of the presence of the can upon the premises of the defendant essential. If it was brought to his place and used in his business by his servants, the jury might well find that it was in .his actual possession, and then the presumption against him was sufficient evidence of its use. The exception, therefore, presents no error. Neither is there any force in the constitutional objections raised by the defendant against the statute.

As we have already seen, this statute was demanded by the ■exigency which brought it into existence, and it must be- permitted the full force of all its provisions. Its operation must not be curtailed by hard cases, and it must be administered without reference-to persons.

If the defendant finds himself environed by circumstances which constitute him an offender of this statute, he 'must accept the consequences. The plea which would excuse him would permit the-escape of many persons whom the law was designed to reach. If he was as innocent as he claims to be, the exercise of proper vigilance would have prevented the introduction of the can upon his premises, and such care on the part of all persons would go far to discourage the wrongful detention of the cans.

This statute is designed for the protection of honest men against, thieves and wrong-doers, and it is the duty of the courts to enforce it and not permit its evasion by specious excuses.

The record discloses no error and the judgment should be-affirmed, with costs.

Cullen, J., concurred in the result; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    THE WILLIAMSBURGH SAVINGS BANK, Respondent, v. THE TOWN OF SOLON, Appellant.

      DetacTied coupons of town bonds bear interest.

    The coupons upon certain town bonds, issued under chapter 907 of the Laws of 1869, were in the following form (differing only as to the time of payment):
    “ $17 50. The Town of Solon will pay to bearer, at the National Park Bank, of New York, seventeen 50-100 dollars on the first day of September, 1889, being-six months interest on bond No......”
    In an action brought against the town upon certain of such coupons cut from the-bonds to which they had been attached:

      Held, that the coupons partook of the character of commercial paper and bore interest, although no agreement to pay compound interest was shown.
    Appeal by the defendant, the Town of Solon, from, a judgment of the Supreme Court, entered, after a trial at the Kings Circuit before the court, in the clerk’s office of the county of Kings on the; 20tli day of May, 1891, upon a verdict directed by the court in favor of the plaintiff for $13,204.52.

      Louis Marshall, for the appellant.

      Edwin B. Thomas and Howard D. Newton, for the respondent.
   Dykman, J.:

This is an action based upon certain coupons detached from bonds of the town of Solon, made and issued in obedience to the provisions of chapter 907 of the Laws of 1869.

The bonds were executed in aid of the Utica, Chenango and Cortland Railroad Company, and delivered to that corporation in exchange for its stock. They were dated September 1, 1870, and the plaintiff became the owner of several of them, amounting in value to $16,000, in the year 1875.

When the cause came on at the circuit, the counsel for the pai’ties stipulated that the trial should be had before the judge without a jury, and be disposed of at the conclusion of the evidence as though a jury was present, and that a verdict should be directed by the court.

That stipulation was equivalent to a request by both parties for a direction of a verdict, and, under well-settled principles, constituted and amounted to an admission that only questions of law were involved, and that there were no disputed or controverted questions of fact in the case.

At the close of the trial the court directed a verdict in favor of the plaintiff for $8,960, for the principal or face of the coupons and $4,244.52 for interest thereon, making the total amount of the verdict $13,204.52.

From the judgment entered upon that verdict the defendant appealed to the General Term, but there was no motion for a new trial upon the minutes of the court, no order denying such motion and no appeal from any such order.

It is thus rendered plain that this appeal involves the examination of questions of law only.

The interest upon all the bonds was paid from the time of their issuance until the year 1877, and in June, 1881, an action in equity was commenced by the town of Solon against the Williamsburgh Savings Bank to procure the nullification and cancellation and surrender of the bonds held by it. That action proceeded upon substantially the same grounds as the defense to this, and it was tried at the Special Term and decided in favor of plaintiff.

From the judgment entered upon that decision in February, 1883, the defendant appealed to the General Term in the fourth department, and the judgment was reversed and a new trial was granted. The order for that new trial was entered in January, 1885.

In the able and exhaustive opinion of. the court upon that appeal prepared by Judge Follett, all the questions were fully examined and decided adversely to the contention of the town. (Town of Solon v. The Williamsburgh Savings Bank, 35 Hun, 1.)

Then the cause was retried and decided in favor of the bank, and from that judgment the town appealed to the General Term, where' the judgment was affirmed upon the opinion of Judge Follett delivered on the former appeal. (47 Hun, 632.) The town appealed to the Court of Appeals, where the judgment was affirmed. (114 N. Y., 122.)

There, again, the questions were fully examined and decided in favor of the bank, and the opinion of the court prepared by Judge Bradley leaves nothing requiring further consideration, and the two opinions referred to are decisive of this appeal. A new examination could only proceed upon the same lines and over the same ground, and is, therefore, unnecessary. The force and effect of those opinions will not be augmented by the contribution of our approval, but they have our concurrence and we consider them conclusive. The point respecting the interest upon the coupons was not, and could not be, examined in the former cases, and, therefore, requires our determination.

The question is by no means free from embarrassment. The coupons are alike except in their time of payment, and this is their form: “$17.50. The Town of Solon will pay to bearer at the National Park Bank of New York, seventeen dollars on the 1st day of September, 1889, being six months interest on bond No.....” It appears, therefore, distinctly upon the face of the instruments that they are for the payment of interest, and it is now settled law in this State that compound interest can only be recovered upon some new and independent agreement for its payment. (Youngs v. Hill, 67 N. Y., 162.) At the same time it is to be conceded that these instruments partake largely of the character of commercial paper. They are promises to pay money at a* specified time and place to the bearer, and are, therefore, negotiable and transferable by delivery. Such instruments have been held to be promissory notes although detached from the bonds to which they refer. (Evertson v. National Bank of Newport, 66 N. Y., 18.)

We have concluded, therefore, to affirm the judgment upon this point also, and allow the question (to be presented to the Court of Appeals for determination with the others.

The judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN N. MILLIKEN, Respondent, v. THE COMMISSIONERS OF THE ALMS-HOUSE OF THE CITY AND TOWN OF NEWBURGH, Appellants.

      Honorably discharged soldiers — employment of, in the public service — a decision by the authorities on the question of capacity mil not fie disturbed — mandamus.
    By chapter 464 of the Laws of 1887 a preference is given, in the matter of employment on public works, to honorably discharged Union soldiers and sailors, and it is provided that “age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them provided they possess the business capacity necessary to .discharge the duties of the position involved.”
    A soldier,, who had been refused an appointment as superintendent of an almshouse, applied for a mandamus directing the commissioners to appoint him, the affidavit upon which he moved stating nothing as to his capacity to perform the duties. ■
    The commissioners of the alms-house answered that the person whom they had appointed was competent; that they had considered the application of the soldier and deemed him incompetent; and that the duties of the position were onerous and important.

      Held, that a peremptory mandamus was improperly granted.

      That the question of the capacity of the applicant was one proper for the consideration of the commissioners, and that the court should not interfere with their decision.
    That where a matter of discretion was involved mandamus was not a proper remedy.
    Appeal by the defendants, the Commissioners of the Alms-house of the City and Town of Newburgh, from an order of the Supreme Court, entered in the office of the clerk of Orange county on the 30th day of April, 1892, ordering that a peremptory mandamus issue, directed to said commissioners, requiring them to appoint the relator, John N. Milliken, superintendent of the poor of the city and town of Newburgh.

      E. A. Brewster, for the appellants.

      8. E. Bimmielc, for the respondent.
   Dykman, J.:

This is an appeal from an order directing the issuance of a peremptory writ of mandamus commanding the appellants to appoint the relator superintendent of the poor of the city and town of Newburgh.

The order of the Special Term was based upon an affidavit of the relator which stated that he was an honorably discharged Union soldier residing at the city of Newburgh; and on the 4th day of April, 1892, he filed with the commissioners of the alms-house an application for the appointment of superintendent of the almshouse of that city and town.

That on the 5th day of April, 1892, at a regular meeting of the commissioners, in disregard of his petition, and in defiance of the law, they appointed Chauncey F. Gardiner, who was not a discharged Union soldier, such superintendent for the ensuing year.

The affidavit then closed with a prayer for the issuance of a peremptory writ which should command the defendants to appoint the relator such superintendent.

The ’affidavit was silent respecting the qualifications of the relator and his competency to perform the duties of the office which he sought. It did not state his age, or whether he had lost a limb or sustained any other physical impairment which might incapacitate or disqualify him.

In 'opposition to the motion, the defendants presented the affidavit of the president of the board of commissioners of the alms-house of the city and town of Newburgh, which consists of six members, in which it was stated that, by the law under which the board was organized, it was made the duty df the commissioners to appoint an officer denominated the superintendent of the poor of the city and town of Newburgh.

That it was the duty of such officer- to reside at the alms-house and have the control and management of the paupers therein, who numbered then about one hundred; to act as secretary of the board and keep its minutes; to keep the accounts of the board; to purchase supplies for the alms-house and temporary relief ; to keep an office in the city and receive application for x-elief; to examine into the circiimstances of the applicants and keep a record of such examinations, axid generally to perform the duties devolvixig by law upon the board as its executive officer.

That the office was a very important one and requix-ed for its proper discharge very considerable ability, business capacity and experience.

The affidavit further stated that the board met at its annual meeting on the 4th day of April, 1892, for the purpose, among other things, of appointing a sxxperixxtendexxt of the poor; that the x-elator applied for such appointment xxpon the ground that he was an honorably discharged Union soldier. That the x-elator was personally known to most of the members of the board, and in their judgment he does not possess sufficient business capacity, knowledge and experience to fit him for a proper discharge of the duties of that office.

That the other applicants were .William A. Pressler, who had held the office for the last two years, and Chauncey F. Gardiner, who held the office twelve years and upwards coxxtinuously, and who resigned about two years ago ixx consequence of ill health, but whose health was now restored, and he applied fox- reinstatement to-the office. That Gardiner dxxx-ixxg his long service gave satisfaction to the board and to the public, and became well acquainted with the poor law system and was able greatly to aid and facilitate the discharge of the duties of the board. That a majority of the board, fairly and in good faith, came to the conclusion that the relator was not competexit for the position of such supei-intendent, and that Gardiner was the most competent of the three persons seeking the appointment, and the board accordingly appointed him in good faith and without intending to violate the law.

The statute under which this proceeding was instituted is this :

“ Sec. 1. In every public department and upon all public works of the State of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same, wherever they apply honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.

“ Sec. 2. All officials or other persons having power of appointment to or employment in the public service as set forth in the first section of this act, are charged with a faithfid compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.

“ Sec. 3. This act shall take effect immediately.” (Chapter 464, Laws of 1887.)

It was the intention of this statute to give to honorably discharged Union soldiers and sailors a preference for appointment and employment in every public department and upon all public works of the State of New York, and of the cities, towns and villages thereof, .and also in non-competitive examinations under the civil service laws, rules and regulations of the same wherever they apply, without disqualification by reason of age, loss of limb or other physical impairment which does not, in fact, incapacitate, provided they possess the business capacity necessary to discharge the duties of the position involved. But the proviso governs the operation of the whole statute. If the soldier or sailor possesses the business capacity necessary to discharge the duties of the position involved, he has the preference. If he is destitute of such capacity, he is not within the provisions of the law and can derive no benefit therefrom. Capability is the prerequisite to the reception of the preference.

It was not the design of the statute to debase the public service by requiring the appointment of incompetent men to discharge the duties of public positions, or to elevate heroism above competency independent of otlier considerations. Patriotism is to be honored and rewarded in appropriate ways, but not by the distribution of public offices. Such being the manifest design of the statute, its application to this case is simple and easy.

It was the duty of the alms-house commissioners to appoint a superintendent of the poor of the city and town of Newburgh. It was an important office and required the exercise of great care, discretion, knowledge and business capacity. The incumbent is required to take charge of the inmates of the alms-house, disburse the poor fund and keep theAccounfs, act as secretary and executive officer of the board and purchase the supplies. The selection of a fit person to discharge such duties and fill the office was entrusted to the board, and it was the peculiar province of that body to make the selection of the officer subject to no judicial control. The power of appointment was vested in the commissioners, they were personally acquainted with the relator, and in their judgment he did not possess sufficient business capacity,-knowledge and experience to fit him for a proper discharge of the duties of this office, and they said so in their affidavit in opposition to the motion, and that fact was undisputed.

Discretion and power to determine the qualification of applicants for the office in question being vested in the commissioners, it was their duty to exercise the power, and if the relator was found wanting and unqualified by them, lie cannot force his appointment. Having decided the question upon which they were authorized to pass in good faith, their decision cannot be overruled by this court. Subordinate bodies and tribunals clothed with the power to exercise judgment and discretion cannot be compelled by mwndamus to decide in any particular way. (People ex rel. Lockwood v. Trustees of Saratoga, 7 N. Y. Supp., 125; S. C., 54 Hun, 16; People ex rel. Francis v. Common Council, 78 N. Y., 33.) So far the case is plain upon a consideration of the statute alone, but the reported cases which have arisen under the law have all been decided .in consonance with the views here expressed.

In the case of Barden (7 N. Y. Supp., 123) where the writ of mandamus was issued, the fitness of the relator for the position he sought was conceded and assumed. Here it was denied by the defendant and not even asserted by the relator. In the case of The People ex rel. Lockwood v. Trustees of Saratoga (supra), it was held where two or more persons apply for an' office, one of whom is an honorably discharged Union soldier, and all of whom are equally qualified, the soldier should be preferred, but the act should not be construed to require the soldier’s appointment where he is not as well qualified for the office as one of the others. It was there also further held that the decision of the trustees in that case upon the question of fact respecting the relator’s qualification for the office, if wrong, could not be corrected in that proceeding for a mandamus.

The opinion in that case, delivered by Judge Putnam at the Special Term, was adopted by the General Term, and the order denying the motion for a mandamus was affirmed on that opinion, which is clear, full and exhaustive, and meets with our full approval. The principles enunciated in that opinion are applicable to this case and decisive of this appeal. The case of The People ex rel. Ballou v. Wendell (51 Hun, 363) is in accord with our views.

Since the preparation of the foregoing opinion the decision of the Court of Appeals in the case of the People ex rel. Wren v. Goetting (44 N. Y. St. Rep., 503) has been received, and it was there decided that mandamus was not the proper remedy in a case similar to this, and in the opinion it is said: “ The office claimed is filled by another person holding under color of right, and the question of the title to the office turns upon the construction of statutory provisions. It would be highly inappropriate to determine such a question in a mandamus proceeding. The appropriate remedy, and an adequate one, is by information in the nature of guo warranto, in which proceeding the incumbent of the office can be heard in his own behalf upon the disputed question.”

In no view, therefore, can the relator maintain this proceeding, and the order should be reversed, with ten dollars costs and disbursements ; and the motion' for a writ of mandamus should be denied, with ten dollars costs.

Cullen, J., concurred; .Barnard, P. J., not sitting.

Order reversed, with ten dollars costs and disbursements: and motion granted, with ten dollars costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ESTHER JANE GRIFFIN, Respondent, v. HILLYER RYDER, as County Treasurer of the County of Putnam, Appellant.

      Partition — moneys paid to a county treasurer for unknown heirs — presumption as to their death — proceedings to withdraw the money — section 1582 of the Code of Uivil Procedure is unconstitutional.

    In 1863, pursuant to the decree in an action for partition, certain moneys were deposited with a county treasurer for the unknown heirs of Deborah Ann McCormick, deceased, a defendant in such action. In September, 1891, certain of the known heirs of the deceased took proceedings, under section 1582 of the Code of Civil Procedure, as amended in 1891, to have this fund paid over to certain knownheirs. The county treasurer refused to obey an order directing the payment of the fund to known heirs upon the ground that said section 1582, and also section 841 of the Code of Civil Procedure, as amended in 1891, which creates a presumption of the death of the unknown heirs at the time of the decree, where such a fund has not been claimed after the lapse of twenty-five years, were unconstitutional.
    On appeal from an order, granting a peremptory mandamus requiring him to make such payment, it was

      Held, that the legislature had power to enact that from the lapse of time, and the failure of any person to claim such a deposit, it should be presumed that an unknown class was a class which did not exist at the time of the decree in partition.
    That section 1582 was unconstitutional, however, because, although it provided for notice of the application to the unknown heirs by publication, it required no notice to the known heirs or their successors in interest.
    That it was unconstitutional for the further reason that it provided that distribution should be made to the known heirs, their heirs and assigns, and forbade distribution to the next of kin, distributees or representatives of such heirs. That the legislature had not power to change the nature of property, the title to which was already vested, by directing that, whatever was its character1, it must pass to heirs, thereby excluding devisees and the next of kin.
    Appeal by tbe defendant Hillyer Ryder, as county treasurer of the county of Putnam, from an order of the Supreme Court, granted on the 2d day of April, 1892, and entered in the' Putnam county clerk’s office, ordering that a writ of mandamus issue directing him to pay to the relator and others, in the proportions named in said order, certain moneys in his custody.

      In 1863 certain moneys were deposited with the county treasurer of Putnam county, pursuant to a decree duly entered in an action of partition then pending in the Supreme Court, in which Matilda Cree was plaintiff and Cornelius Griffin and others were defendants, which moneys represented the share of the unknown heirs of Deborah Ann McCormick, deceased, whose names and places' of residence were stated to be unknown. In September, 1891, some' of the known hems of Deborah Ann McCormick took proceedings, under section 1582 of the Code of Civil Procedvie, as amended in 1891, to have the share of the unknown heirs paid to them, and such an order was made. This order the county treasurer refused to obey upon the ground that sections 841 and 1582 of said Code, as amended in 1891, were unconstitutional. Upon his refusal Esther Jane Griffin, a child of Cornelius Griffin, a known heir of Deborah Ann McCormick, in March, 1892, instituted this proceeding for a mandamus to compel payment.

      Clayton Ryder, for the appellant.

      Abram J. Miller, for the respondent.
   Cullen, J.:

This is an appeal from an order directing a writ of mandamus to issue to the appellant commanding him to pay over moneys deposited in a partition suit to the credit of unknown heirs, in accordance with a decree of distribution under section 1582, Code of Civil Procedure.

There had been made a previous decree of distribution under this section as it stood in 1890. The appellant refused to comply with it and was upheld in his refusal by the Court of Appeals (124 N. Y., 500), which held the provisions of this section unconstitutional and void. This section and section 841, Code, were amended in 1891 (chapters 364 and 365), and thereupon a new proceeding was instituted and another order of distribution made. The appellant refuses compliance, contending that the provisions of section 1582 are still invalid.

"We believe that it is within the power of the legislature, in the case of an unclaimed deposit of this character, to enact that from the lapse of time and failure of any person to appear and make claim, it shall be presumed that an unknown was a non-existing class at the time of the decree, and to provide by appropriate proceedings for a distribution of the fund among the persons who would have been entitled to it if there had been no such unknown persons, if reasonable notice be provided for and an opportunity be afforded to all persons in interest to appear and protect their rights.

But we think that there are two fatal objections to the validity of the proceedings authorized by the section named. Two classes of persons are described, the unknown heirs and the known heirs. Known heirs are those persons who, are known and whose right to inherit, or the extent of whose right to inherit is dependent on the non-existence of other persons nearer or as near to the ancestor in the line of descent. In default of appearance by any unknown heir, the court is to order a distribution among the known heirs, their heirs and assigns, * * * and not next of kin, distributees or representatives * * * of the respective shares or portions of or interest in such proceeds to which they are entitled.”

The order or decree, therefore, determines the rights of the known heirs among themselves. The statute provides for notice of the application to the unknown- heirs by publication, but no notice whatever upon the known heirs or their successors in interest is provided for. It is entirely possible that such known heirs may not have been parties to the original suit, and certainly the judgment in partition did not and could not determine the rights even of the parties to it in the share deposited. The legislature could not empower the court to adjudicate the rights of these persons in any proceeding of which they are to be given no notice and to which they are not parties. The importance of notice appears in this very case when we consider the second objection to this statute, the parties among whom it provides the distribution is to be made.

By the statute the distribution is to be to the known heirs, their heirs and assigns, and not to the next of kin, distributees or representatives. The only theory on which this proceeding, in its main scope and object, can be considered a valid exercise of legislative power, is that the known heirs were, as a matter of fact and law, at the time of the judgment and sale, entitled to the share deposited; that the judgment awarded the share to a class of persons which did not exist, in consequence of' ignorance of such non-existence, and. failed to award to the known heirs what was really their own; that now lapse of time and the non-appearance of any such class of unknown persons has proved the fact, which did not then appear, and by the decree of distribution the error of fact in the original judgment is corrected.

Therefore, the interest of any known heir in this fund was his property, and upon his death passed like other property, according to its nature, whether real or personal, either by will or by the statutes of distribution or descent, and the title of his successors in interest could not be divested by the legislature. If such interest was land, then it would pass by will to the devisees. But this statute directs that it shall be paid to the heir or assignee and creates a quasi estate-tail during the time of the deposit, subject, possibly, to be defeated by assignment. The only way to avoid this objection would be to construe assignee as including devisee. This is not, however, the theory on which the Special Term proceeded. In the order of distribution it is recited as to some of the original heirs that they died intestate, but as to others merely that they died leaving certain heirs, and the distribution is to such heirs. But the shares in this fund of the known heirs, who were adults at the time of the judgment and sale, were not in law realty, but personalty. (Sweezy v. Thayer, 1 Duer, 286, opinion, 308.) It may be that as to sales subsequent to the statute, or even where the death of one of the original heirs was subsequent to that time, the legislature could make a rule for the succession upon death of property of this character, sui generis, and applicable to such property alone. But surely it cannot divest the next of kin or the devisee of property thitherto vested in them.

The order appealed from should be reversed and the application denied, with fifty dollars costs and disbursements.

Barnard, P. J., concurred ; Dykman, J, not sitting.

Order reversed and application denied, with fifty dollars costs and disbursements.


text:
    JOHN CHARLES ANDERSON, Respondent, v. WALTER S. CARR, Appellant, and Others, Respondents, and JOHN J. LEARY, Appellant.

      Judgment — entered try consent, although the court has not jurisdiction — erroneous, it is not void — contempt proceedings under it are valid — remedy of the pa/rty

    In an action brought by John Charles Anderson to establish the -validity of the will of John Anderson, deceased, a defendant, named Watson, answered, and a defendant, named Carr, demurred to .the-complaint. The plaintiff compromised with Watson, and, as a condition of the settlement, Carr withdrew his demurrer, and, upon a consent that judgment be entered for the relief demanded in the complaint, judgment was entered declaring the will valid, and further perpetually enjoining such defendants from impeaching the will or making any claim in contravention thereof.
    Subsequently, certain of the other defendants, in the same case relative to the same will, obtained an adjudication in the Court of Appeals, that equity had no jurisdiction of a suit to establish a will.
    After the entry of the judgment containing the injunction John J. Leary, as attorney for Watson, began a separate action in ejectment to recover certain premises devised by the will. For this act Leary was punished for a contempt of court.

      Held, that, although if the defendants Watson and Carr had persisted in their defense the judgment would ultimately have been-in their favor, the judgment against them, entered by consent,was not void.
    That while the Court of Appeals had decided that an action to establish a will was not within the present equity jurisdiction, it did not hold that the Supreme Court had no power to entertain such an action, and determine whether it would or would not lie.
    That as the judgment was at most erroneous, the contempt proceedings were valid. That if the injunction was not authorized'by the consent given, the defendants’ remedy was by a motion to amend the judgment.
    That while the injunction stood it must be respected.
    Appeals by John J. Leary, an' attorney, from an order of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 19th day of March, 1892, adjudging him in contempt ; and also from an order of said court, entered in the same clerk’s office on the 7th day of April, 1892, imposing fines upon him in the aggregate sum of $775, and directing that he be imprisoned for six months and until the fines be paid; and an appeal by the defendant Walter S. Carr from ah order entered in said clerk’s office on January 21, 1889, denying an application to open a judgment against the said defendant Walter S. Carr.

      John J. Leary, for the appellant.

      Thomas M. North and WilUam J3. ILornblower, for the respondent.
   Cullen, J.:

This action was brought to establish the validity of the will of John Anderson. The defendant Carr demurred; the defendant Watson answered. The plaintiff compromised with the defendant Watson, and, as a condition of the settlement, the defendant Carr withdrew his demurrer and consented that judgment be entered against him for the relief demanded in the complaint. Judgment was thereupon entered declaring the will valid, and the defendants were perpetually enjoined from impeaching the will or making any claim in contravention thereof. Subsequently Watson, by the appellant, as his attorney, brought an action in ejectment to recover certain premises devised by the will. The appellant was adjudged guilty of contempt in continuing to' prosecute the action. From such order this appeal is taken.

But two questions are raised on the appeal. The first is, that the court had no jurisdiction to render the judgment, and hence the judgment is void. In Anderson v. Anderson (112 N. Y., 104) the Court of Appeals held that this action would not lie, and, as to the other defendants who resisted the suit, the action was dismissed. The court held that equity had not jurisdiction of a suit to establish a will, but that the devisee must wait till his title is attacked. On this decision the contention is made that the judgment herein, even though entered by consent, is void.

We think that the decision of the Court of Appeals does not go to that extent. Doubtless, had the defendants not compromised, and had carried their defense to the highest tribunal, the judgment would have been in their favor instead of against them. But in this position these litigants are not singular. The reports are full of such cases. The question is not whether the judgment was erroneous, but whether it is void. We think the judgment was in the power of the court to make.

Bills qioia timet and to restrain suits at law have always been entertained by courts of equity alone. That the bill here, did not .¡state a case for equitable relief does not affect tbe jurisdiction of tbe court any more than a faulty complaint in an action at law. The Court of Appeals did hold that the case did not fall within the equity jurisdiction as it exists in this State, but it did not hold that the Supreme Court had not power to entertain such an action and determine whether it would or would not lie. There are different senses in which the word “ jurisdiction ” is employed. When “ equity jurisdiction ” is spoken of there is not meant the power of the court to try the dispute in the sense that a County Court cannot try an action in ejectment, or a State court offenses against the Federal government, but the question whether the action in equity will lie. (Bangs v. Duckinfield, 18 N. Y., 595; Fisher v. Hepburn,, 48 id., 51.) When it was contended before Lord Mansfield, first, that the King’s Bench had no jurisdiction of the suit, and then that no other court had jurisdiction, he answered : “When you say that no court has jurisdiction of a controversy, what is that more than ■saying no action will lie.”

The plaintiff thought he could maintain this action. He was wrong, but he had a right to be wrong. He submitted his claim to'the court which had general jurisdiction in law and in equity. It is not pretended that there is any other tribunal before which the ■plaintiff should have brought his suit. If the question was a proper une for litigation, there must be some court in which the question ■could be litigated and a judgment rendered in such a litigation, while unreversed must, though erroneous, stand on the same footing as any other judgment not subject to collateral attack.

It is also urged that the judgment in granting an injunction went 'beyond the relief demanded in the complaint. If this be so, the defendant’s remedy is by motion to amend the judgment. The injunction must be respected until it is set aside.

The order appealed from should be affirmed, without costs.

Barnard, P. J., concurred.

'Order affirmed, with costs.


author: Barnard, P. J.:

text:
    CHARLES W. N. AKBERG, Respondent, v. THE JOHN KRESS BREWING COMPANY, Appellant.

      Written assignment by a corporation of a chattel mortgage — an oral wa/rranty by its agent that the mortgage was good — such wa/rranty may be proved to sustain an action brought thereon against the corporation.

    Tlie authorized agent of a brewing company sold, and the company assigned, to> Charles W. N. Akberg a chattel mortgage upon the property of Carl Nelsson, which the agent stated to Akberg was good, and that if it was not good lie would get his money back. The assignment was in writing, and contained no warranty of value.
    In an action brought against the company by Akberg, who alleged that the chattels covered by the mortgage were not the property of the mortgagor, it was.

      Held that he was entitled to recover.
    That it was proper to show by parol evidence that the agent told Akberg that the-mortgage was good, and that if it was not good Akberg would get his money-back.
    That such an agreement was outside of the written contract of sale, and might be-shown by parol.
    Appeal by the defendant, the John Kress Brewing Company, from a judgment of the Supreme Court, entered in the office of the. clerk of the county of Kings on the 28th day of December, 1891, upon a verdict for the plaintiff for $618, after a trial at the Kings. Circuit before the court and a jury ; and also from an order of said court,- entered in said clerk’s office on the 23d day of December,, 1891, denying its motion for a new trial.

      George P. LTotaling, for the appellant.

      J. Edwcwd Swanstrom, for the respondent.
   Barnard, P. J.:

The defendant made a loan of $600 to Carl Nelsson and took from him a chattel mortgage as security. The mortgage conveyed the household interest of the Brooklyn House, at Fort Hamilton, Kings county, and certain articles of personal property upon the premises.. The mortgage was dated 28th of May, 1890, and was due at once. On the 16th of July, 1890, the plaintiff bought the mortgage of the defendant and paid $600 therefor. The purchase was made by plaintiff at the request of Alexander Egar, who was an employee of the defendant. Egar represented to plaintiff that the mortgage was perfectly good, and that if it was not good the plaintiff would get his money back. The mortgage was not good. The title to the chattels were in a person other than Nelsson, the .mortgagor. The assignment of the mortgage was in writing, and did not contain this representation that the mortgage waS good and that the money would be paid back if it was not good. The proof of the authority of Egar to make the representation was sufficient. He negotiated the sale of the mortgage for the defendants, and the company received the proceeds of the sale., He had a written authorization to act for the defendant in the transaction. The proof sustains the finding of the jury that the representation as to the mortgage and the repayment of the money in case it was not good were made. The plaintiff so testifies,, and he is thus supported by Yon Bulow.

The warranty of the mortgage to be good was properly received, although the assignment of the mortgage was silent on the subject. The fact that the entire agreement was contained in the assignment is not apparent from the paper itself. That only purported to transfer a title to a chattel mortgage. ' The agreement that the mortgage was upon goods which the mortgagor owned would be assumed. A parol undertaking that it did so is not to be construed as a part of the contract of sale. If the sale implied title to the goods contained in the mortgage, no outside agreement was needed. If the sale did not have that effect, an agreement of warranty that the title was good was outside of 'the agreement of sale merely between the parties. (Chapin v. Dobson, 78 N. Y., 83; Briggs v. Hilton, 99 id., 517; Routledge v. Worthington Co., 119 id., 592.)

The judgment should, therefore, be affirmed, with costs.

Dykman, J., Concurred ; Gulden, J., not sitting.

Judgment and order denying new trial affirmed, with costs.