author: Dyicman, J.:

text:
    The People of the State of New York ex rel. Cornelius Foley, Relator, v. The Board of Education of Long Island City, Respondent.

      Boao'd of education of Long Island Oity —power of appointment and removal of employees — chapter 461 of 1871 — chapter 716 of 1894.
    Under the provisions of subdivision 2 of section 2 of chapter 2 of title 9 of chapter 461 of the Laws of 1871, the board of education of Long Island City is authorized to employ an engineer to take charge of the heating system of 'the public schools in said city, and there is no limitation or restriction upon the power of such board to discharge its employees for a just cause; in such case the power of appointment implies the authority to remove.
    The improper refusal of an employee of the board of education of Long Island City, who is an honorably discharged soldier, to obey a reasonable order of such board, will be deemed conduct inconsistent with the position which he holds within the meaning of section 1 of chapter 716 of the Laws of 1894, and will justify his removal.

      [Queer e, as to whether the sufficiency of the reasons for the exercise of its power to remove its employees by the board of education of Long Island City must be determined primarily by such board, and as to whether the courts have anything to do with the reason or justice of removals made by it.
    Certiorari issued out of the Supreme Coiirt and attested on the 21st day of September, 1894, directed to the board of education of Long Island City, commanding it to certify and return to the office of the clerk of the county of Queens its proceedings and all things appertaining to the discharge of the relator from service as engineer •in a school in Long Island City.

      Lyman W. Ledvngton, for the relator.

      William E. Stewart, for the respondent.
   Dyicman, J.:

This is a proceeding by certiorari to review the action of the board of education of Long Island City, which resulted in the removal of the relator from the position of engineer in charge of the heating apparatus of-School No. 7 in the fifth ward of that city.

The facts are contained in the return of the board as follows: On or about the 14th day of March, 1893, the relator was given charge of the heating apparatus then in School No. 7 in the fifth ward, Long Island City, until one Evers, wlio had formerly been in charge and was then ill, should recover his health. On or about the 21st day of March, 1893, the board of police of Long Island City issued a secorrd-class engineer’s certificate to the relator. The temporary appointment of the relator was made by one of the school trustees of the city, and thereafter the board of education of the city removed the relator and appointed one Thomas Curran. Thereafter the relator ajDplied for a mandamus, which application was opposed by the board of education for the reason and upon the ground that the school trustees were only authorized by law to appoint janitors, the power to appoint engineers being vested in this respondent, as it was advised. The relator claimed the right to hold the office for the reason that he was an honorably discharged soldier, and for the further reason that the board of education had ratified his appointment by paying and recognizing him ; the application for the mandamus was granted, and on or about the 25th day of April, 1894, in obedience thereto, the relator was reinstated as engineer in charge of the heating apparatus in School No. 7 in the fifth ward of Long Island City.

Between the date of the removal of the relator in 1893, and his reinstatement in May, 1894, the entire heating apparatus in said school had been changed from hot-water boilers to a steam-boiler engine and complicated machinery, and this respondent assumed that it was entitled to know that the relator was competent and qualified, and for that reason directed him to present himself to be examined by an expert for a certificate of the first class.

The exjDert, Thomas Mulligan, notified the respondent that the relator did present himself at the time and place fixed by such expert, but refused to submit to an examination as required by resolution of this respondent, and by a further resolution, passed May 16, 1894, the board of education directed the 'relator to present himself at its rooms in the city hall, in Long Island City, on the 18th day of May, 1894, and submit to an examination or show cause why he should not be punished for refusing to obey the orders of this respondent.

On the said 18th day of May, 1894, the said relator appeared before the board of education, and without awaiting the arrival of Thomas Mulligan, the examining engineer, positively refused to submit to an examination. Thereafter, and on the 23d day of May, 1894, the board of education, by a notice, a copy of which is annexed to the return, again directed said Foley, the relator, to appear before it, at its rooms in the city hall, at eight o’clock in the evening of Friday, May 25, 1894, and submit to an examination by Thomas Mulligan, the expert designated by the board, as to his qualifications and competency as an engineer or show cause why he should not be punished for refusing to obey the orders of the board of -education. On the said 25th day of May, 1894, the relator, Foley, presented himself before the board of education and in an insolent and boisterous manner refused to be examined as to his qualifications and competency as an engineer, and positively refused to obey the orders of the board of education; thereupon the board of education passed a resolution dismissing him for his refusal to obey the orders of the board of education, a copy of which order is annexed to the return. There is no provision in the charter or laws of Long Island City authorizing the employment of engineers in the public schools, for the reason that when said chai’ter and the amendments thereto were at different times passed, the school buildings were old frame structures heated by ordinary coal stoves. Within the past few years other and more substantial structures have been erected, and more recently approved appliances for heating have been added to the school buildings.

' The claim of the relator is, that the board of education was vested with no power to appoint or remove an engineer, but that argument, if allowed its full force and traced to its legitimate result, will prove, too much to be beneficial to the relator. If the board had no power of appointment, then he was not duly appointed and never was entitled to the position of engineer. We do not, however, deem the position tenable. The relator is not an officer, and has no official position; he is simply an employee of the board of.' education. There is no statutory provision for the employment of an engineer for the public schools in Long Island City.

The authority of the board to employ an engineer must be sought in subdivision 2 of section 2 of chapter 2 of title 9 of chapter 461 of the Laws of 1871, which is as follows:

The board of education shall have power * * * to employ and to discharge teachers, to designate their duties and to fix their salaries, to employ necessary workmen and to provide necessary materials for repairing, altering and enlarging public school buildings or other buildings connected therewith.”

That subdivision imparts the power to employ necessary work- • men, and the relator must fall under that denomination, and the section seems to be sufficiently broad to justify his employment. After the changes in the system of heating in the school had been made the board of education adopted the following rules and regulations, among others:

“ Art. XII, § 2. The janitor shall have charge of ' the heating apparatus, except when an engineer is employed.
“Art. XII, § 4. In any school, where the services of a licensed engineer are required, said engineer shall occupy the living apartments therein, and shall have control of the janitor of said school, and be responsible for the proper care of the school premises. During the school sessions when steam pressure is on the boilers the engineer must remain in and about the boiler room, and under no circumstances absent himself from the building. The engineer shall receive and receipt for all janitor or engineer’s supplies or material delivered for the use at school building where he may be employed.”

There is no limitation or restriction upon the power of the board of education to discharge its employees for a just cause, and there should be none. In such a case the power of appointment bestows the authority for removal also. (People ex rel. Cline v. Robb, 126 N. Y. 180; People ex rel. Griffin v. Lathrop, 142 id. 113.)

The sufficiency of the reasons for the exercise of the power of removal must be determined primarily by the board. In the case of The People ex rel. Griffin v. Lathrop it was said that the court had nothing to do with the reason or justice of the removal. That was a proceeding by mandamus to compel the reinstatement of the relator as a keeper of the State prison at Sing Sing, and we assume that the same rule will apply here. If, however, it does not, we have no difficulty in appi-oving of the action of the board in the removal of the relator. Steam is exceedingly dangerous, whether it be utilized as a propulsive power or as an agent for heating buildings. The machinery for its utilization is complicated, and its use cannot be committed to persons unskilled in its operation without extreme hazard. The results of a mistake might, and probably would, be disastrous to both persons and property. Many children are gathered together while the steam is in use during the day, and an explosion would be certain to result in injury or death to many.

The relator held a second-class engineer’s certificate from the board of police of Long Island Oity, which certified to his competency to take charge of a particular steam boiler and engine at the fifth ward public school in Long Island City. It does not appear where that was, but the certificate was second class, and the members of the board and their expert all deemed it necessary that the relator should be re-examined. "We concur in that conclusion, because the perils of the position require first-class qualification.

The relator contends, further, that he is an honorably discharged soldier and served as such in the Union army during the war of the Rebellion, and claims immunity from discharge for that reason. The statute upon that subject lias been changed, and, without relating its transformation, it is sufficient to state its present form, which is this : In all cases, the persons having the power of employment or appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employee or appointee.” (Laws of New York, 1894, chap. 116, § 1.)

Under that provision, therefore, the board of education possessed the power of removal for incompetency and inconsistent conduct. The reason for the removal was the refusal of the’ relator to obey an order of the board, and our examination has been sufficient to manifest the reason-and justice of the order.

It follows necessarily that the refusal of the relator to obey the order was improper, and may, therefore, be deemed conduct inconsistent with the position which he held within the meaning of the statute.

Pratt and Oullen, JJ\, concurred.

Proceedings of the board of education in removing the relator affirmed, with costs.


source: Caselaw Access Project

author: Cullen, J. :

license: Public Domain

text:
    Delia F. Sheldon, as Administratrix, etc., of Alexander E. Sheldon, Deceased, Respondent, v. Isaac E. Sheldon and Another, Appellants, Impleaded with Others.

      Evidence inadmissible under Code of Civil Procedure, § 829 — competency of declarations of a decedent made to a third pa/rty —will providing for the continuance of a loam.

    In. an action brought to establish a partnership and the title of the plaintiff’s intestate in the co-partnership assets, the defendant is incompetent under the provisions of section 829 of the Code of Civil Procedure to testify in regard to personal transactions had between himself and a deceased person from whom the plaintiff’s intestate to some extent derived title.
    The declarations of a deceased person are, as a rule, incompetent to bind one who was not present when they were made.
    The will of a testator declared that it was his wish that all the part of his estate which at his decease should be represented by a loan in a business conducted by his sons should be allowed to remain so loaned to said firm, at interest, for so long a time as said firm should continue with its then present capital invested. In an action brought by the administratrix of one of the sons of the testator to establish the existence of a partnership between her intestate and the other sons of the testator,

      Held, that the retaining of the money in the business by the authority of the will, in the absence of any disclaimer, would operate as an admission of the existence of the partnership, and that the will was competent evidence against the defendants. ,
    Appeal by the defendants, Isaac E. Sheldon and another, from • portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of July, 1894, upon the report of a referee, adjudging that the plaintiff’s intestate was a member of the firm of Sheldon & Co., that his estate is entitled to a share in the assets of such partnership, directing an accounting and appointing a receiver.

      Josiah T. Marean and Henry M. Bequa, Jr., for the appellants.

      James MoKeen and Thomas B. Hewitt, for the respondent.
   Cullen, J. :

This is an appeal from an interlocutory judgment entered on the report of a referee. The action is brought to establish a partnership between the plaintiffs intestate and the defendants, Isaac E. Sheldon and William D. Sheldon, and to compel the defendants to account as surviving partners for the assets of the partnership. The defendants denied the partnership. The referee, by his decision, found the partnership to have existed, and directed the defendants to account.

An examination of the evidence convinces us that the decision of the referee on the question of fact was correct. To say the least, it-is clear that there is no such preponderance of evidence in favor of the appellants as is requisite to justify this court in reversing his findings. (Barnard v. Gantz, 140 N. Y. 249; Aldridge v. Aldridge, 120 id. 614.)

In fact, the learned counsel for the appellants scarcely asks us to reverse the judgment on these grounds, but confines his argument to alleged errors of the referee in the exclusion and admission of evidence. It is, therefore, unnecessary for us to enter into any general review of the evidence in the case, but we shall confine our discussion solely to the alleged errors on the trial.

The first error contended for is the exclusion of the evidence of the defendant Isaac Sheldon as to conversations had between him and Shailer at the time Shailer withdrew from the firm of Sheldon & Co., and assigned his interests in the business and stock in trade of tho firm of Sheldon & Co. to Smith Sheldon, Isaac E. Sheldon, Alexander E. Sheldon and William D. Sheldon. This assignment was in writing, under' the hands and seals of the parties. It contained a recital that Alexander and William had been-admitted into the partnership of Sheldon & Co.

The defendant offered to prove by his own testimony that at the time of the execution of this agreement he told Shailer that the recital was incorrect, and that Alexander and William had not been admitted as partners; that Shailer replied that he wanted all of them bound by the agreement in that form.

•Before the time of the trial Shailer had died. The evidence was objected to and excluded, both ou the ground- that the witness was incompetent to prove the fact under section 829 of the Code of Civil Procedure, and also that the conversation itself was incompetent.

We think that both the grounds of the objection are good. The action seeks to establish a partnership and the title of the plaintiff’s intestate in the co-partnersliip assets. This assignment operated to transfer to Alexander a share of the interest theretofore held by Shailer; hence the plaintiff to some extent derived title from Shailer, and the defendant’was not competent to testify to a personal transaction with him.

We think, further, that the declarations made by the defendant to Shailer in the absence of Alexander were wholly immaterial and incompetent to bind Alexander.

The next error claimed is as to similar rulings in excluding personal conversations between the defendant Isaac and Smith Sheldon, who also had died before the trial. Smith Sheldon was the father of the other three partners.

Till the time Shailer retired the firm of Sheldon & Co. was composed of himself and the defendant Isaac and Smith Sheldon ; afterwards the father, Smith Sheldon, retired, leaving his capital in the business, apparently as a loan. -

It is claimed by the plaintiff that thereafter her intestate and the defendants were partners, owning the assets in this proportion: Isaac a half, "William a quarter, Alexander, her intestate, a quarter.

The defendant Isaac E. Sheldon sought to prove by his own testimony conversations between himself and the father, Smith Sheldon, going to show that neither Alexander nor "William were partners in the business. This testimony was excluded on the same grounds upon which the testimony of conversations with Shailer were excluded.

"We think the ruling was correct for the reason we have before expressed.

Unquestionably if Alexander became a partner to the extent of a quarter, his interests in the assets to that extent came in part from his father; we think, therefore, that the witness was incompetent to testify to such conversations, and also that such conversations themselves, held in the absence of Alexander, were inadmissible to affect his rights.

The will of Smith Sheldon was admitted in evidence over the defendants’ objection and exception. By that will he appointed his sons, Isaac, Alexander and William, and his daughter, Margaret Thompson, executors and trustees, and declared that it was his wish that all the part of his estate which at his decease should remain in the book publishing business “ as conducted in the city of New York, by my said sons, Isaac E. Sheldon, Alexander E. Sheldon and William D. Sheldon, and known as the firm of * Sheldon & Oo.,’ as a loan to said firm; be allowed to continue and remain so loaned to said firm at legal interest and for so long a time as the said firm, with at least its tlien^ present capital therein invested by my said sons, shall continue.”

It is conceded by all the parties that at this time the father had withdrawn from the partnership, and that the part of his estate which was in the firm was there in reality as a loan. .

That the declarations made in the will of the father as to who constituted the firm of Sheldon & Co. were not of themselves evidence against the defendants is not questioned. But it was further shown that for many years this money had been allowed to remain as a loan to the firm.

The only authority given by the will was to loan to a firm composed of all three sons. The defendants having taken advantage of this provision of the will, would have been estopped as between themselves and the daughter from denying the liability of all. As between themselves there might be no estoppel, but the retaining of the money would certainly operate as an admission in the absence of any disclaimer, and, therefore, was competent evidence against them.

The letters and statements found by the plaintiff in her husband’s papers after his decease were competent. They were proved to have been in the handwriting of the defendants, and it must be presumed that the deceased obtained them properly. The type-written statement given the plaintiff’s son by the defendant Isaac was sufficiently identified at least to justify its admission in evidence for the referee to determine as matter of fact whether it was the original paper.

We have thus examined the various exceptions taken on the trial, and in our opinion none are well founded.

We think that the questions of whether the defendants are to be charged with the whole sum paid on the final sale of the firm’s business, or whether the defendant Isaac is to be allowed some part thereof as a consideration of his covenant to abstain from thereafter competing in business with his vendee, do not arise on this appeal. The referee has not passed on the question, nor does the judgment decide it. The judgment decrees that the plaintiff’s intestate was the owner of one-fourth of the assets of the firm and of the profits, and directs that the defendants account for the same. On such accounting the question now sought to be raised will be determined.

The judgment appealed from should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Cullen, J.:

text:
    John H. Trenor, as Trustee for Minnie J. Rice, Appellant, v. Fannie A. Le Count and Another, Respondents.

      Motives of a mortgagee and Ms attorney inforeclosing a mortgage, immaterial.

    In the absence of a charge of fraud or collusion upon the part of a mortgagee or his attorney, by which the mortgagor was prevented from paying the interest upon the mortgage or misled in such respect, the motives of the mortgagee or of his attorney in foreclosing the mortgage and electing that the whole principal sum should become due upon a default in the payment of interest thereon, are immaterial.
    Appeal by the plaintiff, John H. Trenor, as trustee .for Minnie J. Rice, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 2jth day of October, 1894, directing the discontinuance of the action and the cancellation of the lis pendens upon the payment to the plaintiff of the amount due him for interest upon the mortgage mentioned in the complaint, and the costs of the action to the time of the order.

      H. G. Henderson, for the appellant.

      GorneUus H. Eme, for the respondents.
   Cullen, J.:

This action is brought to foreclose a mortgage which contained the usual thirty days’ interest clause. Default having, been made in the payment of the interest for more than thirty days the plaintiff elected that the principal should become due and instituted this foreclosure. The defendants, on affidavits charging the plaintiff’s attorney with unfriendly feeling towards the defendants and a desire on his part to harass them, applied for an order staying the action. On that application the court made an order directing the action to be discontinued upon defendants paying to the plaintiff the interest in default and the costs of the action to the time of the order. From that order the plaintiff appeals.

We think the order was erroneous. There was no charge of fraud or collusion upon the part of the plaintiff or his attorney by which the defendant was prevented from paying the interest or mis- ' led in that respect. In the absence of conduct of that character the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial. The plaintiff is simply enforcing his legal right. The’ defendant Fannie A. Le Count asserts in her affidavit that after the default the plaintiff promised to receive the interest from her if paid by a specified time. This promise the plaintiff denies. The agreement would seem invalid as without consideration, but whether valid or not its force and effect could only be determined by a proper plea in that respect and the trial of the issue' raised by the plea. (Bennett v. Stevenson, 53 N. Y. 508.)

The order appealed from should be reversed and motion denied, with ten dollars costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order reversed, with ten dollars costs and disbursements.


author: Pratt, J.:

text:
    Charles E. Travis, Respondent, v. Edward M. L. Ehlers and Another, as Executors, etc., of Bernard Travis, Deceased, Appellants.

      Breach by the lessee of a covenant in the lease to pay off a 'mortgage —failw'e to put the lease in evidence— defense that the lessor paid the mortgage.

    In an action brought upon a covenant contained in a lease it is unnecessary for the plaintiff, in order to make out his case, to produce the lease, if all that he desired to prove therefrom is admitted by the defendants.
    It is no defense to an action, brought to recover damages for the breach by a lessee of a covenant contained in a lease to pay off a certain mortgage on the leased premises, to assert that the plaintiff paid off the mortgage voluntarily alter a demand upon the executors of the lessee and their refusal to pay, provided the lessor’s property was liable for the mortgage in the first instance.
    Appeal by the defendants, Edward 1VL L. Ehlers and another, as executors, etc., of Bernard Travis, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of June, 1894, upon the decision of the court rendered after a trial at the. Westchester Special Term.
    This action was brought to recover damages for the breach of a covenant contained in a lease to the defendants’ testator, whereby he agreed to pay and discharge a certain mortgage upon the leased premises.

      Joseph O. Orame, for the appellants.

      Arthur Furber, for the respondent.
   Pratt, J.:

This action was brought upon a covenant in a lease, and a copy of the lease was set out in the complaint. The defendants put the lease in issue by the following words in their answer, to wit:

“ I. The defendants admit that on or about the time mentioned ■and set forth in said complaint the plaintiff leased to one Bernard Travis, now deceased, the house and lot known as No. 30 East 127th street in the city of New York, but the defendants deny upon information.and belief that the said lease is in all respects correctly mentioned and set forth in said complaint, and for greater certainty as to its provisions they beg leave to refer to the original •or the record thereof when produced on the trial of this action.”

The plaintiff, upon the trial, failed to put the original lease in •evidence, and now the defendants raise the point that the plaintiff failed to prove his case, and ask that the judgment be reversed, although upon the trial the court found as a fact: “ I. That on the 24th day of July, 1894, by an indenture in writing, made under seal, the plaintiff leased to one Bernard Travis, and Bernard Travis hired from the plaintiff, the house and lot known as number 30 East 127th Street in the City of New York, for the term of his, Bernard Travis’, natural life, and that in and by said indenture said Bernard Travis, among other things, covenanted with plaintiff to pay and discharge a certain mortgage, which was then a lien upon the said premises, and which was given to secure the payment of the sum of $4,500 on the first day of May, 1884, with interest.”

It was plainly an oversight on the part of the plaintiff in failing to offer the original lease in evidence, and might be fatal to judgment were it not for the admission of the defendants contained in their answer:

Among other matters contained in their answer is the following: “ II. Defendants admit that the said Bernard Travis, in and by the terms and conditions of said lease, dated on about the 24th day of July, 1884, thereby covenanted and agreed to pay a certain mortgage made by one Eliza A. Travis, and the bond accompanying the same, bearing date the 13th day of April, 1880, to secure the payment of the sum of $4,500.00 on the 1st day of May, 1881, and recorded in the office of the Register of the City and County of New York on the 22d day of April, 1888, in Liber 1503 of Mortgages, page 6.”

This admission plainly identified the lease and contained all that was necessary on the part of the plaintiff to prove his case. It was an admission of the vital part of the case necessary to maintain the action, and contained the covenant upon which the suit was brought. "We can justly infer that the existence of the lease was taken for granted upon the trial as well from the fact that the judge specifically found as from the fact that it was not produced. It was not necessary to produce the lease after all that the plaintiff desired to prove from it had been admitted.

There is no exception in the case and no error; in fact, the defendants failed to prove any fact to impeach the validity of the judgment. It was no defense to assert that plaintiff paid off the mortgage voluntarily after a demand upon the executors of Travis and their refusal to pay, as his property was liable for the mortgage in the first instance, and he had a right to discharge the lien.

The judgment should be affirmed, with costs.

Dykman, J., not sitting; Cullen, J., concurred on the ground that the case does not state that it contains all the evidence, which is fatal to the noint, wholly without merit, which the defendants seek to raise.

Judgment affirmed, with costs.


text:
    The German-American Real Estate Company, Appellant, v. Adolph Starke, Respondent.

      •Covenant of possession in a contract of sale — not merged in the covenant of the deed subsequently given.

    Where one person contracts with another not only to sell and convey premises by warranty deed contaihing full covenants, but also, upon a specified date, to give full possession thereof, except as against his own privilege of occupancy, there exists a covenant to put the purchaser in possession of such property as against the whole world except the covenantor.
    Such covenant is not necessarily merged in the' covenants contained in a deed of the premises subsequently delivered, and, upon a breach thereof, the grantee may recover damages from the contracting vendor.
    Appeal by the plaintiff, The German-American Real Estate Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of March, 1894, upon the verdict of. a jury rendered after a trial at the Kings County Circuit, and also from an order made on the 21st day of March, 1894, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

      Rector M. HitcJimgs, for the appellant.

      Henry A. Monfort, for the respondent.
   Pratt, J.:

In my view the plaintiff was entitled to recover some damages •on this testimony. Starke covenanted with Scheurtz not only to sell •and convey the premises by warranty deed containing full covenants •on May 26, 1892, but then, except as against his own privilege of ■occupancy until July 1, 1892, to give “full possession.” I interpret this as a covenant to put Scheurtz in possession as against all the world except himself. This, covenant was not necessarily merged in the covenants contained in the deed subsequently delivered. If it was waived or surrendered, it was because of the intention of the parties to the deed. (See Disbrow v. Harris, 122 N. Y. 362.) But there was no such intention. The testimony will not justify any such inference. The only suggestion favoring such a motive on the part of Scheurtz lies iu the fact that Suydam, being in possession of part of the premises, would be liable for rent as a tenant, or for use and occupation, which rent or use and occupation would inure to Scheurtz as grantee under the deed. JBut that is met and refuted by the attitude of both Starke and Scheurtz, and his assigns. Eor Starke always claimed that Suydam had-no right to occupy at all, and the plain fact is that Scheurtz and his assigns bought the land only to cut it up into lots and sell them with full possession as a short speculation. Plaintiff was, therefore, entitled to something for breach of this preliminary covenant. But this point was not definitely presented to the court on the trial. He was entitled to recover something, but he asked for no such instruction, and the verdict was against him on other issues submitted to the jury; he was in the position of Wilson (64 Barb. 431), and, for aught that I can see, must abide by the same terms.

Then came the deed with its covenants for quiet enjoyment and title. I do not see that there was any misdirection upon the questions arising under the covenants of the deed. The whole case, therefore, as it seems to me, discloses a right of recovery for breach of the preliminary covenant to deliver possession as against all the world, including Suydam. But, since plaintiff did not ask for any such instruction, he really did not present that point to the court unless by his motion for a new trial. I think that motion did involve that point, whether he fairly presented it or not. On the whole, I think he was entitled to a new trial, to the end that he might recover something for breach of the preliminary covenant to deliver possession at the time of the delivery of the deed, but on the same terms as in Wilson v. Lester (supra). Perhaps his damages in that regard would be limited to the reasonable cost of ejecting Suydam, if he was ejectable, and to the reasonable value of the use and occupation of the premises while he remained in possession. He might also recover further damages on the covenants of the deed if the jury find that he held as a tenant under Starke. I do not see that there was any such disclosure of the purpose of the purchaser in the first instance as to have brought the speculative profit of the contract or expenses of advertisement for sale, etc., into contemplation of the parties as damages for breach of this preliminary covenant to deliver possession. Then came the damages dependent upon tlie question of fact as to tlie nature of Suydam’s holding. If lie was a tenant under Starke the rules laid down by tlie learned trial judge would seem to apply. Their application was for the jury. If lie was not a tenant under Starke, but a mere squatter, tlie damages for breach of the preliminary covenant would be the limit of recovery. But that was for the jury under proper instructions.

Upon the whole it seems that the first point of the case, plaintiff’s right of recovery for breach of the preliminary covenant for possession, was not squarely presented to the trial court. Hence, the plaintiff’s motion for a new trial ought to have been granted, but only on payment of costs as in Wilson v. Lester. He is, therefore, entitled to a new trial, with costs of this appeal, provided he shall stipulate to pay and shall pay the costs of the trial, including disbursements. Otherwise the judgment should be affirmed, with costs.

Dtkman, J., concurred; Brown, P. J., concurred in reversal but voted for a new trial.

Judgment and order denying motion for new trial reversed and new trial granted, with costs of appeal to the appellant upon his stipulating within twenty days to pay costs of trial and disbursements ; in default of such stipulation judgment is affirmed, with costs.


author: Brown, P. J.:

text:
    Joseph B. Pennell and Others, Appellants, v. Charles L. Bucki, Respondent.

      Modification of the specifications of a building contract— the payment of a just debt is no consideration for a contract — right of a building contractor to withhold moneys from a sub-contractor.

    Where tlie engineer of a company with which a person has contracted to build an elevating railway, is at liberty to modify or amend the specifications therefor, provided that the general character of the work is not thereby altered, the work done pursuant to such modifications is not extra work.
    Where there is no dispute as to the fact that one person owed another a certain sum of money, the payment of part of such sum does not constitute a consideration for an agreement, by which the creditor surrenders the right to the payment of other moneys which he claims to be due from the debtor to him.
    A building contractor has no right to withhold from his sub-contractors a sum of money that is owing by such sub-contractors to other persons who participated in the work, except with their consent, and their consent that the contractor should hold the amount is revocable, and the contractor is bound to pay the amount to the sub-contractors on demand.
    A clause, in the following words, was contained in the contract between a building contractor and his sub-contractors: “ It is further understood and agreed that the sub-contractors shall assume all liabilities for damages to property or to life or limb, caused by, or resulting from, the prosecution of their work.”

      Held, that until the contractor had paid some damages, caused by the prosecution of the work of the sub-contractors, he had no cause of action against them, and if he had neither paid a claim, nor been sued for any, he had no claim against the sub-contractors, and had no right to retain any money due to them, but that, in a case in which the sub-contractors might become liable to the contractor, such contingent liability was sufficient to support an agreement that the contractor should retain certain money due the sub-contractors until they had settled with a person who claimed that his property had been injured.
    Appeal by the plaintiffs, Joseph B. Pennell and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 3d day of November, 1892, upon the verdict of a jury, rendered by direction of the court after a trial at the Westchester Circuit, dismissing the plaintiffs’ complaint upon the merits, as such judgment was amended by an order of the Supreme Court, made’ at the Westchester Special Term and entered in said clerk’s office on the 21st day of January, 1893.
    ' The action was brought to recover for work done by a sub-contractor, the contract for which provided, among other things, as follows:

      Third. It is mutually understood and agreed that the said engineer may at any time vary, alter, modify or amend the plans and specifications as in his judgment may be necessary or expedient, provided such variations, alterations, modifications or amendments shall not conflict with the provisions of the said proposal of Charles L. Bucki. and specification of Otis Bros. & Co., or with the provisions of this contract.

      Joseph F. Daly, for the appellants.

      Leopold Wallaoh, for the respondent.
   Brown, P. J.:

The defendant contracted with the Otis Elevating Railway Company to construct an elevating railroad in the Catskill mountains. The plaintiffs were sub-contractors 'with defendant for a part of the work. Under their contract they were to do “ the cle'. ring, grubbing, masonry and grading; also the drilling of holes for anchor bolts; in fact, all the work (except trestle, timber work and track laying) shown by drawings and specifications, and as directed by T. E. Brown. Jr.,” etc., for $47,500.

This action was brought to' recover a balance claimed to be due on the contract and for extra work. At the close of the testimony the court dismissed the complaint on the ground that there had been an accord and satisfaction proven between the parties.

So far as the claim for extra work is concerned we agree with the trial court that none was proven.

The plaintiffs undertook, by their contract, to do all the work that defendant had agreed to do by his contract with the company, with the exceptions already stated. It was not disputed that defendant told the plaintiffs that there must be no extra work. Defendant testified that he said that he would not pay for extra work unless he ©rdered it in writing. This was denied by plaintiffs, but it was conceded that lie said there must be no extra work and that he never directed any to be done.

It is very clear, we think, that defendant is not in any event liable for the grading done west of the station designated 0. If that work was included in defendant’s contract with the company, then it was within plaintiffs’ contract, and they were bound to do it. If it was not within defendant’s contract then, if the plaintiffs have any claim for it, it is against some other person than defendant.

All the other work, we think, was incidental to the performance of the contract. The engineer had the right to modify or amend the specifications, and unless the general character of the work was thereby altered, work done pursuant to such modifications was not extra work.

But as to all claims for extra work the plaintiffs are concluded by the settlement.

' The engineer gave his final certificate of the amount due the plaintiffs. No extra work was claimed by them, and from the amount of the engineer’s certificate certain deductions were made by defendant, and the balance paid and accepted by the plaintiffs. Excepting the items deducted in that settlement, the acceptance of the final payment bars any claim for extra work.

As to tlie claim for tlie balance due on tbe contract, we are of tbe opinion that the case was for the jury.

After the plaintiffs had completed their contract and the engineer had given his final certificate, the parties met at defendant’s office to effect a settlement. According to defendant’s testimony, the gross amount of the plaintiffs’ work was $41,492.50.

The defendant withheld $1,000 that he had paid for building a trestle over a part of the road where the original plan called for a fill; $2,650 for damages claimed to have been caused to the property of the Catskill Mountain Association, and $251-.40, the amount of a bill due from plaintiffs to Hairs & Lewis, other contractors on the road. He paid to plaintiffs a check for $1,291.10, the balance due on tlieir contract, after making such deductions, and delivered it with a letter, of which the following is a copy :

“'New York, August'lith, 1892.
“Messrs. Pennell, O’Hern & Co., Yonkers, N. Y. :
“ Gentlemen.— Enclosed I hand you a check for $1,291.10, being final payment on Otis Elevating Company’s work. It is understood that I am retaining the following money under the following conditions: $1,000 which I will pay you in case I am allowed my bill for extra work on the middle trestle; $251.40 being for the bill of Hairs & Lewis for work said to have been done for you, and which, if you can agree, J will pay you unless stopped by law. Also the sum of $2,650, being for bill for use of road and damage to property of the Catskill Mountain Association, which I will pay you as soon as you deliver to me the receipt in full of the Catskill Mountain Association for any damage done to their property, and for use of such other property, as you can agree upon between yourselves.
Y ours very truly,
“ CHARLES L. BUCKI.”

It is the defendant’s contention that this paper and the acceptance of the check constituted a compromise of disputed claims, and that it is a bar to the prosecution of this action.

We cannot concur in that view of the testimony. t

The amount paid.to the plaintiffs did not represent a compromise of any kind. Defendant was indebted to them in the sum of $5,192.50, and he claimed that they were liable to him in the sum of $3,901.40. There was no dispute about the difference between these two amounts. That was due to the plaintiffs in 'any event, and its payment could not constitute a consideration for an agreement by which the plaintiffs surrendered the right to the payment of the balance.

The items named in the paper are not connected together, either in the paper itself or by the oral testimony. Each stands upon its own facts. The paper is evidence of an agreement only, and the utmost effect that cati be claimed for it is that it tends to corroborate the defendant’s testimony that an agreement was entered into with reference to the items named in it, by which plaintiffs surrendered the right to present payment upon conditions which, at the time of the commencement of this action, had not been fulfilled.

"With reference to the item of $251.40, we are of the opinion that defendant was bound to pay that sum to the plaintiffs on demand. That was a claim held by Mairs & Lewis, other contractors on the road, against the plaintiffs. Defendant had nothing to do with it. He had no power to cpllect or withhold it for Hairs & Lewis. His sole right to retain it was the consent of the plaintiffs, and that consent, assuming it to have been given, as defendant testified, was revocable, and defendant was bound to pay it' to plaintiffs on demand. For that amount, therefore, plaintiffs were entitled to a judgment in this action.

As to the other two items there was a dispiite, and the question presented with reference to them was one of fact for the jury. It is unnecessary for us to refer with any particularity to the testimony. It is sufficient to say that the plaintiffs denied that they had agreed that their liability for the construction of the trestle was made dependent on the result of an action to be brought against the railway company by the defendant, and, if the jury had adopted that view, then the question whether the plaintiffs were bound under the contract with defendant to construct the trestle, or, if not, whether the contract price was subject to reduction, from the fact that the amount of their work was lessened by the construction of the tresne, and, if so, liow much, were all questions that should have been determined in this action.

With reference to the other item, there was a claim against the plaintiffs of liability only, and a liability that it is apparent was contingent on many facts and circumstances. Tlie defendant liad no enforcible cause of action against them for damages. The plaintiffs’ contract contained the following provision:

“ Sixth. It is further understood and agreed that the contractors shall assume all liabilities for damages to property or to life or limb caused by or resulting from the prosecution of .their work.” And a similar provision was contained in defendant’s contract with the railway company.

Until the defendant had paid some damages caused by the prosecution of the work by the plaintiffs, lie had no cause of action against them. lie had paid none, nor had he been sued for any. He, therefore, had no claim against the plaintiffs and no right to retain the money.

But plaintiffs might become liable to the defendant, and that contingent liability was sufficient to support an agreement that he should retain the money until plaintiffs had settled with the Mountain Association. Whether such an agreement was made or not was in dispute, and the jury should have been permitted to determine the fact.

The judgment must be reversed and a new trial granted, costs to abide the event.

Pratt, J., concurred; Dykman, J., not sitting.

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


author: Dykman, J.:

text:
    Emma Roberts, Respondent, v. The Union Elevated Railroad Company, Appellant.

      Satisfaction of a judgment without the attorneys knowledge — set aside to the extent of the costs.

    When, pending an appeal from a judgment recovered in an action in favor ot tlie plaintiff, a settlement is made and the - judgment is satisfied without the knowledge of the attorney for the plaintiff, a motion made by the plaintiff’s attorney to set aside the satisfaction of the judgment is properly granted to the extent of the amount of the costs included therein.

    Appeal by the defendant, The Union Elevated Railroad Company, from an order of tlie Supreme Court, made at the Kings County Special Term and. entered in tlie office of tlie cleric of tbe county of Kings on tbe 12th day of July, 1893, granting tlie plaintiff’s motion to set aside tlie satisfaction of judgment entered in tlie action to tlie extent of tbe taxable costs, and also from an order entered in said cleric’s office on tbe 7th day of September, 1893, denying the defendant’s motion for an order for leave to reargue tbe plaintiff’s motion to set aside the satisfaction of the judgment.

      Wm. N. Gohen and Alfred Lmderbaeh, for tbe appellant.

      Stephen M. Hoye and Frameis IiusseTl Whitney, for the despondent.
   Dykman, J.:

Tbe plaintiff recovered a judgment against tbe defendant in this action for $175 damages and $73.11 costs, which made together $248.11.

The defendant appealed from the judgment, and pending tlie appeal a settlement was reached between the parties without the knowledge of the attorney for the plaintiff, through the intervention of William R. Grace.

The sum paid upon such settlement was $225, of which Grace received $50 and the plaintiff $175, the amount of her verdict.

Thereupon a motion was made by the plaintiff’s attorney to set aside the satisfaction of the judgment; that motion was argued and an order was made setting aside the satisfaction of the judgment to the extent of $73.11, the costs of the plaintiff’s attorney, which he was allowed to collect.

The defendant appealed from that order, and while the appeal was pending the defendant made a motion for a reargument of the original motion; that motion was denied, and the defendant has appealed from that order also.

These orders are so obviously right and just that argument or authority in their support are unnecessary, although the orders are well sustained by both. Both orders should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred; Cullen,- J., not sitting.

Orders affirmed, with ten dollars costs and disbursements.


text:
    Margaret E. Purcell, Appellant, v. Long Island City, Respondent.

      Damages for malicious prosecution by a school trustee — evidence insufficient ta charge the defendant, a municipal corporation, therewith.

    Upon tlie trial of an action brought against a municipal corporation to recover damages for false imprisonment it was shown that the complainant in the criminal prosecution was one of the school trustees of such municipality; that he, as such trustee, charged the plaintiff with feloniously stealing certain property belonging to such municipality; that its corporation counsel appeared on the trial and that the prosecution of such action was conducted by him; that the arrest of the plaintiff and the proceedings on her trial were published in the daily newspapers of such municipality; that her trial was adjourned from time to time and the corporation counsel of such municipality appeared on each of the adjourned hearings and prosecuted the criminal charge against the plaintiff which charge was finally dismissed and the plaintiff discharged from arrest.

      Held, that such evidence was insufficient to connect the municipality with the prosecution of such criminal charge.
    Appeal by tlie plaintiff, Margaret E. Purcell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 6th day of October, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Queens County Circuit,

      I. Newton Williams, for the appellant.

      William E. Stewart, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages for malicious prosecution.

The case came on for trial at the Circuit, and after the jury had been impanelled and sworn the counsel for the defendant moved to dismiss the complaint because it was apparent that the plaintiff had no cause of action.

Thereupon the trial judge said to the counsel for the plaintiff “We will take your statements of the facts connecting the city with the prosecution.”

“ Plaintiff’s counsel states that he would offer proof to sustain the allegation connecting defendant with the acts of the trustees, and he will show as follows: That the complainant in the criminal prosecution mentioned in the complaint was one of the school trustees of the fifth ward of Long Island City; that he was duly elected as such under the charter of the city and served in such capacity, and that he charged the plaintiff here as such trustee with feloniously stealing the property mentioned in the complaint, and, further, that the said property belonged to the defendant under the charter of Long Island City; that the corporation counsel of defendant appeared on the trial, and the |>rosecutibn of the action was conducted by the corporation counsel, and plaintiff offers proof of the other allegations of the complaint.

The Court.— The Court holds that evidence, if proved, insufficient to connect the defendant, a municipal corporation, so as to render it liable.

“ Plaintiee’s Counsel. — We offer to prove that the plaintiff’s arrest and Court proceedings of the trial referred to were published in the daily papers of Long Island City and New York City'-; that the trial was adjourned from time to time before the Police Justice before whom the trial was had, and the Corporation Counsel appeared on each of the adjourned hearings and prosecuted tire criminal charge against plaintiff, which charge was dismissed and the plaintiff discharged from arrest, and that ended the proceedings.

“ The Court. — I hold that it is insufficient to connect the municipality, assuming for the argument that every part of your cause of action would be established.

Plaintiff’s counsel excepts.

“ Complaint dismissed.

“ Exception by plaintiff.”

It is not necessary, upon this appeal, to decide whether an action for malicious prosecution can be maintained against ■ a municipal corporation, because the facts fail to connect the defendant with the prosecution in this case.

It is a case of failure of proof to sustain an alleged cause of action.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Cullen, J., not sitting.

Judgment affirmed, with costs.


author: Dyicman, J".:

text:
    The People of the State of New York ex rel. Richard M. Cunningham, Appellant, v. William H. Osborn and Others, as Commissioners of Highways of the Town of Tuxedo, Orange County, New York, Respondents.
    Use)— not alone sufficient to constitute a public highway by prescription — cha/pter 568 of 1890.
    In order that a road should become a public highway its use must be associated with some act, showing such use to be claimed as a right hostile to and independent of the will of the owner, such as reparation or the assumption of control of the road in some ostensible manner; and a private road opened by the owners of land, through which it passes, for their own use, does not become a public highway merely because the public are also permitted, for many years, to travel over it.
    Chapter 068 of the Laws of 1890 has wrought no chango in the law relating to highways by prescription.
    The mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must bo more. The user must be like that of highways generally. The road must not only be traveled upon but must be kept in repair or taken in charge and adopted by the public authorities.
    Aureal by tlie relator, Richard M. Cunningham, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Orange on the 24th day of December, 1892, upon the decision of the court, rendered at the Orange Special Term, dismissing the alternative writ of mandamus granted the relator, requiring the respondents to remove obstructions in a certain road.

      William JD. JDichey, for the appellant.

      Ettgene JD. Stolcem and M. II. Wirschberg, for the respondents.
   Dyicman, J".:

This proceeding was instituted for the procurement of a peremptory writ of mandamus which should command the commissioners of highways of the town of Tuxedo to remove the obstructions from .a certain road in. that town which begins on the easterly side of a road leading from Arden to Bailytown and terminates at a road leading from Dunderburg to Cedar Pond.

An alternative writ was granted, to which the commissioners made a return, in which they stated that the road had not been used by the general public for twenty years and that they should not be required to remove the obstructions therein.

It appears from the papers used upon the application that the road in question runs through a wild gorge of the Orange mountains and was opened at first by the Greenwood Iron Company for its own use in carting charcoal to the furnace of the company. It was never laid out or opened as a public highway.

There was a trial before a judge of this court without a jury, and he decided against the relator.

It appeared upon the trial that the road in question runs through a wild mountainous region which is sparsely inhabited ; that it is an ordinary wood road, and that there are from 50 to 100 miles of roads similar to this road in a tract of mountain land of about 10,000 acres.

The entire tract of land, including that over which this road passes, belongs to E. II. Iiarrirnan, who has owned it since 1886, and in the summer of 1892 he closed the road by placing a wire fence across it, and that is the obstruction of which the relator complains.

There is no claim on the part of the relator that the public authorities of the town ever adopted or recognized this road as a highway or made any highway assessments, or did any work upon it.

"When Harriman acquired the property this road was impassable in many places, and he improved it, and in June, 1892, put up notices along the same warning the public against traveling thereon.

The trial judge found that the road had been used continuously for more than twenty years by people having occasion to travel between points reached thereby.

The evidence justifies the finding, and such use is all there is to clothe the road with a public character. That use alone is entirely insufficient to convert the road into a public highway by prescription, and there is no claim on the part of the relator that this road ever became a highway in any other manner.

The character of one of the mountain roads upon the same tract of mountain land was involved in the case of Harriman v. Howe (78 Hun, 280). That was an action brought by Harriman against the commissioners of highways to determine the character of the road, aud the proof of nse there was substantially the same as it is here, and it was there decided by this coxirt that proof of user alone of a road was insufficient to show it to be a public highway ; that such use must be associated with some act showing such use to be claimed as a right, hostile to and independent of the will of the owner, such as reparation or the assumption of control of the road in some ostensible manner; that a private way opened by the owners of land through which it passes for their own use dqes not become a public highway merely because the public are also permitted for many years to travel over it. The case of Speir v. Town of New Utrecht (121 N. Y. 420) is an authority for these conclusions.

The reason and authority for our conclusion in that case are set forth with sufficient particularity and fullness, and the case is entirely decisive of this, with the exception of one point raised by the appellant, which we will now examine.

It is claimed in this case by the relator that section 100 of chapter 568 of the Laws of 1890, known as the General Highway Law, has wrought a change in the law of this State relating to highways by prescription, but we cannot yield our assent to this contention. We do not think that any such change was intended by the Legislature.

The language of the new section is this : Highways by use.— All lands which shall have been used by the public as a highway for a period of twenty years or more shall be a highway with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”

The old statute was this: “ All roads not recorded, which have been or shall have been used as public highways for twenty years or more shall be deemed public highways.” (1 R. S. 521, § 100.)

The words “ used as public highways,” as they are employed in the old statute, received a construction in the case of Speir v. Town of New Utrecht (121 N. Y. 420), and it was there held, as we have seen, that they required more than mere user.

The words in the new statute a're “ used by the public as a highway,” and they are of the same purport and meaning as the words of the old statute. The new statute requires the use to be by the public, and the old statute required the roads to be used as public highways, and they can be used as public highways only by the public, and, therefore, the use required by both statutes is the same.

It is. impossible to read the provisions of the two statutes in reference to the use of the roads which is necessary to create a right by prescription without observing the similarity between them down to the provision in the new statute for opening the roads. To that point the language in both has the same import and signification. Although the phraseology is slightly different, yet the requirements in relation to use by the public are the same in both.

But that does not exhaust the argument, and we must take a broader view of the subject. In the first place it is to be observed that wherever changes are made in the Highway Law of the State by the statute of 1890, they are all plainly specified, and if it had been the intention of the Legislature to make the radical change in the existing Highway Law for which the relator contends, such intention would have been expressed in unmistakable language.

A statute which would make mere user by the public of the mountain roads in this State by the few persons who have occasion to use them sufficient to constitute them public highwaj's, with all the rights and obligations pertaining thereto, would effect a fundamental change in the Highway Law, and involve important and serious consequences. It would convert wood roads which have been used by persons in the vicinity for their convenience into public highways without compensation to the owners of the land, and be thus violative of the Constitution of the State, and it would devolve upon the towns the duty of their reparation, and render them responsible for injuries to persons and property by reason of defects and obstructions therein.

In this very case such a construction of the statute would place fifty miles of mountain roads in such a category. If the Legislature intended to enact a law which would involve consequences so serious, language would be used which would plainly express such intention.

Instead of that we have language employed in the new statute which plainly indicates an intention to re-enact the old statute in relation to the use necessary to constitute a prescriptive right to land for a public highway.

The following rule prescribed in the case of Speir v. New Utrecht (supra) is applicable to this case :

“ But the mere fact that a portion of the public travel over a road -for twenty years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must he more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities.”

We think all this is implied in the words “used as public highways.”

The judgment should be affirmed, with costs.

Pratt and Cullen, JJ., concurred.

Judgment affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Joseph Wechsler, Respondent, v. William Harkness and Others, Constituting the Board of Assessors of the City of Brooklyn, Appellants. The People of the State of New York ex rel. William M. Brasher, Respondent, v. Same, Appellants. The People of the State of New York ex rel. Joseph Wuestl, Respondent, v. Same, Appellants. The People of the State of New York ex rel. Frederick Marx and Another, Respondents, v. Same, Appellants. The People of the State of New York ex rel. Jeremiah P. Robinson and Others, Respondents, v. Same, Appellants.

      Assessment — review thereof under chapter 369 0/I88O — necessary allegations of the petition.

    Chapter 369 of the Laws of 1880 was designed to furnish a remedy for illegality, inequality or error in assessments, and the petition in proceedings instituted thereunder stands in the place of a complaint.
    While it is only necessary to state therein resultant facts as contradistinguished from evidentiary facts, yet such facts must he stated in such a way as would justify the granting of the relief sought if the allegations were all admitted, and an allegation contained therein that the assessment upon the property oí the petitioner is erroneous, unequal and disproportionate because his property is not assessed at the same proportionate valuation as other real property on the same assessment roll, or an allegation that his property is assessed at a higher proportionate valuation than other property on the same roll, is insufficient.
    The petitioner must show a state .of facts from which a presumption j ustly arises that the inequality of which he complains will subject him to the payment of-more than his just proportion of the aggregate tax, and this presumption is not raised by proof that in a particular instance property is assessed at a proportionately lower valuation than his own.
    Appeal by the respondents, William Harkness and others, constituting the board of assessors of the -city of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings ons the 28th day of August, 1894, in the first above-entitled proceeding, denying the respondents’ motion to quash the writ of certiorari issued out of the Supreme Court and attested on the 27th day of August, 1894, upon the ground that the papers upon which the same was granted were insufficient, and that the writ was not in accord with the statute.
    Also like notices of appeal in each of the other above-entitled proceedings.

      Albert G. McDonald and Henry Honge, for the appellants.
    ■ J. Stewart Doss and Paul Grcmt, for the respondents.
   Dykman, J.:

Proceedings were instituted in all the above-entitled actions to review the action of, the board of assessors of the city of Brooklyn in the assessment of the property of the relators located in that city.

The proceedings in each case were based upon a petition which prayed for a writ of certiorari, and, after the issuance of the writ, the defendants in each case made a motion at Special Term to quash the same. The motion was denied in each case, and defendants have appealed in each.

The real question upon the motion and upon these appeals has reference to the petition which is challenged for insufficiency.

In the view we take of the question it will be only necessary'for us to examine the statement of the grievance of the relators. In. that respect the petitions are substantially the same, and the allegation in respect to inequality is tliat tlie action of the board of assessors in making the assessment of the property of the relators is erroneous, unequal and disproportionate, for the reason that such property is not assessed at tlie same proportionate valuation as other real property on the same assessment roll. In the case of "Wechsler the allegation is that such assessment has been made at a higher proportionate valuation than other real estate on the same assessment roll.

These proceedings are prosecuted under and in pursuance of chap- . ter 269 of the Laws of 1880.

The 1st section of that act provides for the allowance of certiorari upon a duly verified petition to review an assessment of property when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and that the petitioner is or will be injured by such alleged illegal, erroneous or unequal assessment. The statute, therefore, was designed to furnish a remedy for illegality, inequality or error. These relators complain of inequality, and base their claim for relief upon that ground.

The proceeding is initiated by a petition which thus stands in the place of a complaint, and, while it is necessary only to state resultant facts, as contradistinguished from evidentiary facts, yet such facts must be stated in such a way as would justify the granting of the relief sought if the allegations were all admitted.

These relators, except Wechsler, all complain that their assessments are unequal and disproportionate, because their property is not assessed in the same proportionate valuation as other real property on the saíne assessment roll; that,- however, is not an allegation that their property is assessed at a higher proportionate valuation than other property on tlie same roll, and such an averment is made essential by the 1st section of the statute.

"Weclisler, as we have seen, charges that his assessment has been made at a higher proportionate valuation than other pro¡ierty on the same roll, and that may be true if one piece of property is lower in proportion than his property.

It is noticeable that none of these relators allege that their property is assessed at an overvaluation, or that it is assessed at a higher proportionate rate than property is generally assessed on the same roll, and unless such is the fact, they have sustained no injury and are entitled to no relief. (People ex rel. Allen v. Badgley, 138 N. Y. 314.)

The best exposition of the scope and design of the statute under consideration which has been given by the courts was rendered by Judge Andrews in the case of The People ex rel. Warren v. Carter (109 N. Y. 576), where he said: “ The petitioner must show a state of facts from which a presumption justly arises that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax, and this presumption is not raised by proof that in a particular instance property is assessed at a proportionately lower valuation than his own.”

Tested by this rule and the decision of the court in that case and the case of People ex rel. Allen v. Badgley (138 N. Y. 317), we deem all the petitions in these cases defective and insufficient.

That conclusion renders the examination of the other questions raised unnecessary, and the orders appealed from should all be reversed, with ten dollars costs and disbursements in each case.

Prátt, J., concurred; Cullen, J., not sitting.

Orders reversed, with ten dollars costs and disbursements.


author: Cullen, ,T.:

text:
    The People of the State of New York ex rel. John P. Wilson, Relator, v. The Medical Society of Dutchess County, Respondent.

      Ge/rtiorm'i — action of a medical society in expelling one of its members not reviewable tk&i'eby • — statutory remedy by appeal.

    The action of a corporation in removing or suspending a member is in one sense judicial, or quasi-judicial, but it cannot be treated as a judgment of a legal tribunal, and cannot be reviewed as such by a writ of certiorari.
    Where a person suspended by the medical society of a county is given by statute (Chap. 445 of 1866) an appeal to the medical society of the State, he should invoke such appeal for redress before resorting to the courts for relief.
    Certiorari issued out of the Supreme Court and attested on the 21st day of July, 1894, directed to the Medical Society of the county of Dutchess, commanding said society to certify and return' to the office of the clerk of the comity of Dutchess all its proceedings, decisions and actions in relation to the charges preferred against, and the suspension of, the relator.

      J. F. Barnard, for the relator.

      Frank B. Lown, for the respondent.
   Cullen, ,T.:

This is a certiorari to review the action of the respondent, which suspended the relator from membership for one year.

We are met at the threshold of the case by the objection that certiorari will not lie. The action of a corporation in removing or suspending a member is doubtless in one sense judicial, or quasi-judicial. But we know of no authority for the proposition that the act of expulsion is to be treated as a judgment of a legal tribunal to be reviewed as such by a certiorari. ' There are many cases where members have been expelled from corporations, but the remedy taken has always been mandamus or action. (Angell & Ames on Corp. § 704; People ex rel. Deverell v. Musical M. P. Union, 118 N. Y. 101; Loubat v. Le Roy, 40 Hun, 546.) This is also true of amotion from medical societies.' The People ex rel. Gray v. Medical Society of the County of Erie (24 Barb. 570) and People ex rel. Bartlett v. Medical Society (32 N. Y. 187) were cases of mandamus. I can find no reported case where certiorari had been issued to review the action of a corporation expelling or suspending a member. The nearest approach to it is an old case (Groenvelt v. Burwell, 1 Ld. Raym. 454), where it was held that certiorari would lie to review the action of medical censors in disciplining the plaintiff. The censors seem to have been granted some special statutory power, and under it they fined the relator and committed him to jail. That certainly partook of the nature of a legal judgment.

The power of amotion exists in corporations of the character of this respondent. The power must doubtless be exercised according to the by-laws of a corporation and the rules of natural justice, and the grounds for such action must be reasonable and lawful. The member proceeded against must have a fair hearing. But there is no power in the corporation to take legal testimony, nor are any particular formalities to be observed other than those required by the by-laws of a corporation. Such proceedings can hardly have sufficient semblance of judicial form or present a. sufficient record for the courts to review on certiorari.

A further objection to the issuance of the writ is that the relator is given by statute (Chap. 445, Laws 1866) an appeal to the Medical Society of the State of New York. The relator should have invoked such an appeal for redress before resorting to the courts. (Thomas v. Musical M. P. Union, 121 N. Y. 45.)

The writ should be quashed, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Writ of certiorari quashed, with ten dollars costs and disbursements.


text:
    Charles E. Maxfield, Respondent, v. Oliver L. Carpenter, Appellant.

      Broker — ordina/rily he is without cmthority to receive a payment — when so cmtlwrized.

    Ordinarily a broker has no authority to receive payment for goods sold by him for the owner; his only authority is to find a purchaser; but where a person is ' apparently clothed with full authority to sell and deliver, a payment tc such person is good as against the owner.
    Appeal by the defendant, Oliver L. Carpenter, from a judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 27th day of -Tuly, 1894, upon the decision of the court reversing the judgment of a justice of the peace of the city of Newburgh, Orange county, and also from an order made on the 26th day of Sejitember, 1894, and entered in said clerk’s office, reversing said judgment.

      Wilton Bennet, for the appellant.

      A. II. F. Seeger, for the respondent.
   Pratt, J.:

This is an appeal from a judgment of a county judge reversing a judgment entered by a justice of the peace upon a verdict in favor of the defendant for no cause of action.

The complaint was for the price of goods sold and delivered by plaintiff to defendant, and the principal question was whether an agent who received the pay for the goods was authorized to receive it. The jury found that the person had such authority as a matter of fact, and under such circumstances it was error for the county judge to reverse the judgment. (Biglow v. Sanders, 22 Barb. 141; Wiley v. Slater, Id. 506.)

Much has been written upon the subject of implied agency to receive pay upon the part of brokers and factors, and the rule is that a broker has no authority to receive pay except in exceptional cases. The broker generally has no authority except to find a purchaser, but where a person is clothed with a good and an apparent authority to sell and deliver, a payment to such person is good against the owner. There can be no doubt in this case that the plaintiff employed the broker or agent to sell. The broker was not only authorized to sell, but his act of selling was ratified by the plaintiff by his sending the goods.

The defendant testifies that he never had any notice that the agent was not the owner of the goods, and that he (the agent) delivered the goods in my market himself.” The defendant could well have inferred that the agent was the owner of the goods or part owner, as he did not disclose the fact that he was acting for any other party, and common honesty, it seems to me, required that plaintiff should have given notice when he sent the goods, upon the bill sent with them, that the purchaser should pay to no one but himself.

The plaintiff testified that he had since he had been in business given such a notice on his bills. The plaintiff employed the agent; he knew the relations that existed between them. He neglected to apprise the defendant of the agent’s want of power to collect, and it was through his act of employing a dishonest agent that the loss occurred.

It may be that the weight of evidence is in favor of the plaintiff, but that is not sufficient to justify a reversal of the judgment. The agent when he went into defendant’s store made the remark “ we deal lieavily in foreign fruits,” giving the defendant every reason to believe he was the principal, and defendant said lie never had notice to the contrary. Under all the circumstances we think the defendant was justified in making the payment. At all events the jury so thought, and its verdict ought to stand.

Judgment of County Court reversed and judgment of justice affirmed, with costs.

Dxicman and Cullen, J"J., concurred.

Judgment of the County Court reversed, with costs, and the judgment of the justice of the jioace affirmed, with costs.


text:
    Abraham Simon and Others, Respondents, v. John H. Vanderveer, Appellant.

      Contract for the sale of land — action to recover the money paid — objections to title must be stated and proved — proof of a hostile claim and of a Us pendens not alone sufficient.

    In an action brought against a vendor to recover the amount paid on account of the purchase price of real property and the expense of the examination of the title thereto by a vendee who refuses to take title to the real estate which he has agreed to purchase, upon the ground that the title thereto of the vendor is defective, the vendee must point out the objection, and give proof tending to establish it, or give proof which creates such doubt in respect to the title as to render it unmarketable.
    If the defect is disclosed upon the face of the record title he need go no further, but if the defect depends upon some extrinsic fact not disclosed by the record, he must show the fact which justifies his refusal to accept the title tendered.

      A. pending action, brought to establish the title of a third person to or his lien upon the land in question, does not of itself, nor does a duly recorded notice of the pendency of such action, make the vendor’s title defective or create a lien upon the land, and the burden rests upon the vendee to prove the alleged cause of action of such third person, and if, when he rests his case, he has only shown that the plaintiff in such action asserts some claim to the land, and he has not shown that such claim is founded on fact, or raises a question of such doubt as to make the title of the vendor unmarketable, ho has failed to establish his cause of action.
    Appeal by the- defendant, John II. Aanderveer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rings on the 26th day of June, 1894, upon the verdict of a jury rendered by direction of the court, after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 27th day of July, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Herbert T. Ketcham and Albert G. McDonald, for the appellant.

      Jacob Manheim, for the respondents.
   Brown, P. J.:

The respondents are vendees of real estate in the city of Brooklyn, under five contracts of sale, and this action was brought against their vendor to recover the amount paid on the purchase, with interest, together with expenses of the examination of the title.

At the close of the testimony, both parties having moved for a direction, the court directed a verdict in favor of the respondents for the amount claimed.

The ground of the action is that the defendant’s title was defective or sufficiently doubtful to be unmarketable.

The contracts of sale were all executed and bear date in June and July, 1891. The deeds were to be delivered and the purchase money paid on October «5, 1891, and this time was subsequently extended by agreement to October 5, 1892. On that day defendant tendered deeds for the land, proper and sufficient in form, and plaintiffs were ready and willing to fulfill their part of the contract, but objected to the title on the sole ground that it was defective and incumbered by reason of a certain action then pending between one George W. Dalton and the appellant, in which action a lis pendens and complaint had been filed in the clerk’s office of Kings county on September 29, 1892. The answer denied that the appellant’s title was defective or incumbered, and averred that he was ready and willing to carry out the contract and convey a good title to the respondents.

It is unquestioned that prior to February 25, 1891, the appellant’s title was good. On that day he entered into a written contract with Dalton, which, after reciting that appellant was the owner of sixty-five acres of land in the twenty-sixth ward of Brooklyn, set forth the following agreement of the parties :

Dalton was to act as agent for the appellant in the surveying of said property, opening streets through the same, laying out lots and for the sale thereof.

Appellant Avas to accept $3,000 per acre for the land, the number of acres to be determined by the survey. ITe Avas to pay the cost of the improvements, and the cost thereof Avas to be added to the aforesaid stated sum per acre. He Avas to accept in payment of said stated value of said property all purchase money paid, and purchase-money mortgages received under all sales to be made, until the total sum of money and mortgages received therefrom should equal the price of the total number of acres at said price of $3,000 ' per acre.

The fifth provision of the contract was as folloAAs :

“ 5th. It is hereby further agreed, by and between the Avithinnamed John IT. Vanderveer and George W. Dalton, that after said sales (as hereinbefore mentioned) of all or a portion of above-named premises the proceeds of said sales are to be paid out as follows, viz.: The said John II. Yanderveer is first to be paid the total sum of number of acres at the stated price of $3,000 per acre, the same to be determined by said survey to be made, Avith the further total sum paid out for all of said improvements as hereinbefore pro Added.
“ The remaining part of said plot of land, or profits thereof, after the above is fully complied Avith, to be paid out in manner folloAving, viz.:
“ The said John TI. Yanderveer is to receive three-quarters, that is, seventy-five (75) per cent thereof, and the said George W. Dalton is to receive the balance, one-quarter; that is, tAventy-five (25) per cent thereof.”

The contracts with the plaintiffs were made pursuant to this agreement. They Avere witnessed by Dalton and refer to lots by numbers upon a map made by him.

It is plain that under this contract Dalton did not acquire any title to or interest in the land.

The plain intent and agreement of the parties Avas that the land should be sold and appellant should receive $3,000 per acre, together with the cost of the improvements. After such sum had been paid in cash and purchase-money mortgages received from sales, the jiroceeds from the sale of the balance of the land was to be divided between Dalton and the appellant in the proportion specified in the fifth clause of the contract. It was not contemplated that Dalton should have any estate in or incumbrance upon the laud itself. The title was always to remain in the appellant, and was to pass from him to the purchasers of the lots. The contract did not, therefore, impair the appellant’s title, or create any incumbrance thereon, and no claim or assertion of an interest in the land by Dalton could, as a fact, create any defect therein.

It is the respondents’ claim that the} established their cause of action by proving- the pendency of the action between Dalton and the appellant and the filing of the Us pendens, and that they were not bound to introduce the contract between Dalton and tire appellant in evidence.

This claim amounts to nothing on this appeal, as the contract was put in evidence by the appellant, and the court’s final ruling in directing a verdict was based upon it and involves its construction.

In holding that the title was doubtful and unmarketable, we think the learned trial court erred. The burden rested upon the plaintiffs to prove their alleged cause of action. The gist of their claim was that the appellant’s title was defective by reason of some incumbrance thereon held by Dalton. The fact essential to plaintiffs’ case to be proven was not that Dalton claimed an interest in the land, but that he possessed such an interest, or that the claim which lie asserted was based upon suck facts that the result of the trial of an action in which the claim would be at issue would be doubtful.

A pending action brought to establish title to or lien upon land does not of itself, nor does a duly recorded notice of its pendency, make the title defective or create a lien on the land. (Hayes v. Nourse, 114 N. Y. 595.)

The introduction in evidence of the lis pendens and complaint, and proof of their filing in the clerk’s office, did not, therefore, show that the title was defective. It only showed that Dalton asserted some interest therein. The plaintiffs were hound to go further, and show the facts on which the claim rested.

“ A vendee who refuses to take title upon the ground of defect therein, must point out the objection, and give proof tending to establish it, or to create such a doubt in respect thereto as to render the title unmarketable. If the defect or doubt is disclosed on the face of the record title, he need go no further, but if it depends upon some extrinsic fact not disclosed by the record, he must show the fact which justifies his refusal to accept the title tendered.” (Greenblatt v. Hermann, 144 N. Y. 13.)

The defect alleged in the appellant’s title did not appear on the face of the record. It depended upon the contract which was alleged in Dalton’s complaint.

When the plaintiffs rested their case they had established no cause of action, as they had shown only that Dalton asserted some claim to the laxxd. They had not shown that it was foxuxded on fact, or raised a question of sixclx doubt as to xxxake the appellant’s title xxixmarketable.

When the coxxtx’act was introdxxced by the appellant it appeared conclusively that Dalton had no iixterest in the laud.

A vendee of real estate is not justified in refusing to accept the title teixdered upon the sole ground that a third pex-soxx asserts or claims some interest therein. His refxxsal xxxust rest upon some substantial grouixds, and the burdeix is cast xipon him to show the facts which rendex the title defective.

In Ferry v. Sampson (112 N. Y. 415) it was said, ixx speaking of axx objection to a title under a decree in partition, that “ the rule is not absolute that a disputable fact not determined by the judgment is in every case a bar to the enforcement of the sale. It depends ixx some degree on discretion. If jhe existence of the alleged fact which is supposed to cloud the title is a possibility merely, or the alleged outstanding right is a very improbable aixd remote contingency, which according to ox’dinary expex-iexxce has no probable basis, the coxxrt may, 1 suppose, compel the purchaser in such a case to complete his purchase.”

In that case an objection to the title was overruled, although there was no proof of the death of a former owner of the land, or, if dead, that he had not left a widow or heii’s at law surviving him.

Ixx Shriver v. Shriver (86 N. Y. 575) it was said: “Where the title depexids upon a matter of fact, such as is not capable of satisfactory proof, a purchaser cannot be compelled to take it.”

We are of the opinion that, under the contract with the appellant, Dalton acquired no interest in or lien upon the land, and that the trial court should have so ruled.

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

Pratt and Dykman, JJ., concurred.

J udgment reversed and complaint dismissed, with costs.


author:
Dykman, J.:
      Bartlett, J.:

text:
    In the Matter of the Application of Charles A. Walters, Appellant, for a Writ of Mandamus Compelling L. B. Hannaford, Respondent, to Admit Chester A. Walters and Another to Public School No. 22.

      Vaccination of school children— duties of principals of public schools, under section 200 of chapter 661 of 1898 — a common-school education a privilege not a right — • forcible vaccination an assault.

    Tiie principal of a public school is not an officer, but an employee, of the board of education and subject to its control and direction; he has no discretionary powers and can admit no child to the school in violation'of the miles and directions of his employer.
    A common-school education, under the Constitution of the State of New York, is a privilege rather than a right; it is created by tlie Legislature and is subject to legislative enactment, and the State can, in its discretion, debar from attendance at public schools swell persons as are unwilling to adopt a protection which, in the estimation of the Legislature, is essential to the preservation of the health of the scholars.
    To vaccinate a person against liis will, and without legal authority so to do, is an assault.
    Section 200 of chapter 661 of the Laws of 1898 is constitutional, and the trustees or other officers having- the charge, management or control of public schools may refuse to admit or receive unvaccinated children or persons into the public schools of the State.
    Appeal by the jietitioner, Charles A. Walters, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 19th day of September, 1894, denying the petitioner’s application for a peremptory writ of mandamus to compel the respondent to admit Chester A. Walters and another to Public School No. 22.

      Horace Grmes, for the appellant.

      Albert G. McDonald and Frank 8. Angelí, for the respondent.

      In force on September 19, 1894. — -[Hep.

   Dykman, J.:

This is an appeal from an order denying an application for a peremptory writ of mandamus requiring L. B. Hannaford to admit Chester A. Walters and Ada Walters to Public School No. 22.

The respondent Hannaford is the principal of the school, and the affidavit upon which the proceeding was based states that he had refused admission to the children on the ground that they had not been vaccinated.

The proceeding is against Hannaford individually, and no other parties are included as defendants or respondents.

Hannaford is not an officer ; he is an employee of the hoard of education and subject to its control and direction. Under the rules and regulations of that board, “ When a child is presented for admission- to a public school of this city', the principal shall require a physician’s certificate that he or she has been satisfactorily vaccinated, or has had the smallpox, or in default thereof shall exclude the child until such evidence is provided.”

The'principal of the school can exercise no discretion, and a mandamus directed to him would accomplish nothing. He Can admit no child in violation of the rules and directions of his employer, and the application might well have been denied upon that ground.

Instead of taking that course, however, the judge who heard the application considered the same upon the merits.

We are entirely satisfied with the disposition of the matter by the judge below and with the reasons which he has assigned therefor, and the order should be affirmed on the opinion of the judge who made it, with ten dollars costs and disbursements.

Pratt and Culukn, JJ\, concurred.

Order affirmed, with ten dollars costs and disbursements.

The opinion of the Special Term was as follows :

Bartlett, J.:

The avowed purpose of this application is to tést the constitutionality of section 200 of the Public Health Law of this State, which provides that zio child or persozi not vaccinated shall be admitted or received into any of the public schools of the State, and commands the trustees or other officers havizig the charge, management or control of such .schools to cause this prohibition to be enforced. (Laws of 1893, chap. 661, § 200.)

Hpon the oral argument I expressed the opinion that this enactment was a valid exercise of the police power of the Legislature; and that view has only been confirmed by azi examination . of the authorities cited in the briefs of counsel.

A common-school education under the existing Constitution of the State of New York is a privilege rather than a right. It. is created by legislation, and szzbject to legislative regulation. (Dallas. v. Fosdick, 40 How. Pr. 249; People ex rel. King v. Gallagher, 93 N. Y. 438.) In the case last cited, Ruger, Ch. J., delivering the opiziion of the Court of Appeals, declared it to be a plaizz deduction fz-onz the zazle in the Slaughter-House Cases (16 Wall. 36) that the privilege of receiving an education at the expense of the State,, being created and coziferred solely by the laws of the State, and always subject- to its discretionary regulatiozi, might be granted or refused to any individual or class at the pleasure of the State. It follows that the State can certainly exercise this discretion by debarring from attendance at the public schools such persons as are unwilling to adopt a precaution whicli, in the judgment of the Legislature, is essential to the preservation of the health of the large body of scholars.

In California there is a statute which provides for the exclusion of unvaccinated children from the public schools. The constitutionality of this law was questioned in the Supreme Court of that State in 1890, one of the objections being technical, and the other being that the subject of the act was ziot within the scope of a police regulation. Both objections were ovemded, the court declaring that, as vaccination was the most effective method known of preventing the spread of smallpox, it was for the Legislature to determine whether the scholars of the public schools should be subjected to it, and the Legislature was justified in deeming it a necessary and salutary burden to impose upon that general class. (Abeel v. Clark, 84 Cal. 226.)

To vaccinate a person against his will, without legal authority so to do, would 1)0 an assault; and it was suggested on the argument, by the learned counsel for the petitioner, that the statute of this State, providing for the compulsory attendance of truant children at the public schools, when construed in connection with the provisions of the Public Health Law relative to vaccination, would have the effect of obliging a child to submit to an assault at the hands of the school authorities. No such question as this, however, arises in the present case. The only effort here is to insist upon a condition, which the Legislature has made a precedent to the exercise of a privilege. It will be time enough to decide whether the State can force a child to attend school, and force him to be vaccinated as a prerequisite to such attendance, when any officer attempts such a proceeding. ■ •

I may add that the point upon which this case turns is very different from that which was before Mr. Justice Gaynor in the Matter of Smith Cummings, where the commissioner of health restrained the petitioners from their liberty until they consented to be vaccinated, although the Legislature had conferred no such express power upon him.

        This refers to the Constitution prior to the revision of 1894.