text:
    The People, etc., ex rel. Rudolph Grancher, Relator, Appellant v. Charles F. MacLean, et al., Commissioners, etc., Respondents.

      Decided July 5, 1892.
    Appeal by writ of certiorari by relator from judgment of the board of police commissioners imposing upon relator a fine of five days’ pay.
    Louis J. Grant, for relator, appellant. William H. Clark, counsel to the corporation, for respondents.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Judgement of commissioners and writ dismissed, with $50 costs and disbursements.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Helena L. G. Asinari, Respondent v. Catharine Requa, impleaded with others, Appellant.
    Decided July 5, 1892.
    Appeal by defendant Requa from order her answer as frivolous and directing judgment in favor of plaintiff thereon.
    P. Van Alstine, for appellant. Gillender & Stoiber, for respondent.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Order affirmed, with $10. costs and disbursements.


text:
    William S. Vernam, et al., Appellants v. Edwin H. Baker, Respondent.
    Decided July 5, 1892.
    Appeal by plaintiffs from order staying the trial of the action.
    Robertsons & Harman, for appellants. Wing, Shoudy & Putnam, for respondent.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
   Per Curiam.

Order affirmed, with $10 costs, etc.


text:
    Daniel J. Sprague, Appellant v. The Bartholdi Hotel Company, Respondent.
    Decided October 24, 1892.
    Appeal plaintiff from so much of an order granting his motion to correct the judgment roll, as imposed as a condition the payment of the costs of the trial, which resulted in a dismissal of the complaint.
    J. Noble Hayes, for appellant. Nathaniel Myers, for respondent.
    Before Freedman, P. J., and McAdam J.
   Per Curiam.

Order affirmed,

with $10 costs and disbursements.


text:
    Worthington Company, et al., v. Robert Avery.
    Decided October 24, 1892.
    Before Freedman P. J., McAdam and Gildersleeve, JJ.
   Per Curiam.

Motion denied, without costs.


text:
    Frederick Seggerman v. Napoleon Valentine.
    Decided October 24, 1892.
    Before McAdam and Gildersleeve, JJ.
   Per Curiam.

Motion denied, without costs.


text:
    Frederick L. Degener, Respondent v. John T. Underwood, et al., Appellants.
    Decided December 5, 1892.
    Appeal by defendants from order granting plaintiff an extra allowance.
    James A. Hudson, for J. E. Ludden, for respondent.
    Before Freedman, P. J., Dugro and Gildersleeve, JJ.
   Opinion by Dugro, J., Freedman, P. J., and Gildersleeve, J., concurred. Order affirmed, with $10 costs.


text:
    Frederick L. Degener, Respondent v. John T. Underwood, et al., Appellants.
    Decided December 5, 1892.
    Appeal by defendants from order denying their motion to retax costs.
    James A. Hudson, for appellants. J. E. Ludden, for respondent.
    Before Dugro and Gildersleeve, JJ.
   Opinion by Dugro, J., Gildersleeve, J., concurred. Order affirmed, with $10 costs.


author: Dueb, J.

text:
    Robert A. Robertson & James S. Polhemus v. Eleazar S. Vaughn & David Vaughn.
    Transferred from Supreme Court .
    A contract for the purchase of articles deliverable on a future day, to be manufactured by the vendor, is a contract for work and labor, and therefore is not within the Statute of Frauds, even when all the materials are furnished by the manufacturer.
    The law was so settled by the decision of the Supreme Court in Jewett v. Fitch, 8 Cowen, 215 ; and if that decision is erroneous, the Court of Appeals is alone competent to correct the error.
    Semble.—That the law is otherwise settled in England and in Massachusetts.
    Ques.—Whether a new statute similar to a Geo. IV.,- c. 14, is not r.eq.uired?

    (Before Duer and Mason, J.J.)
    July 1;
    July 15, 1850.
    This was an. action of trespass on the case to recover for the non-delivery of one thousand molasses shocks and heads, under a contract between the plaintiffs and the defendants. The cause was tried before the Honorable Elisha P. Hurlbut, one of the justices of the Supreme Court, without a jury, on the 13th day of July, 1848, by agreement of parties.

      On the trial the plaintiffs' counsel called as a witness,

      Robert A. Weydale, who being sworn, testified: I know the plaintiffs in this suit, know one of the defendants, think Mr. E. S. Yaughn. I am the plaintiffs’ book-keeper. Mr. Yaughn was at our office on the 5th day of December, 1846. He made a contract with the plaintiffs to make and deliver to the plaintiffs one thousand molasses sho.oks and heads ; they were to be delivered to the plaintiffs in the city of New York, as soon after the opening of the navigation as they could conveniently be brought down, at one dollar twelve-and-a-half cents for each shook and head, to be paid for by plaintiffs on delivery, one-half in cash, and one-half in the note of the plaintiffs at four months after delivery. The defendants live at Glenn’s Falls, in this state. The defendant said the shooks were to be made. Witness afterwards saw the same defendant in New York, in the latter part of June, 1847, he had shooks and heads with him. Witness, at the request of plaintiffs, made a demand for the delivery to the plaintiffs of the one thousand shooks and heads, on the 80th of June, 1847, and at the same time offered to pay for them one-half in cash and the note of the plaintiffs at four months for the other half. The defendant refused to deliver them.
    On cross-examination, witness testified, shooks afterwards went up twenty-five to thirty-seven-and-a-ha.lf cents, when I applied to Mr. Yaughn to deliver the shooks, he denied ever having made any contract. The defendant made the contract with Mr. Robertson. I think Mr. Polhemus was present.
    The plaintiffs’ counsel then called as a witness,

      William R. Graham, who being sworn, testified that he knew the defendant E. S. Yaughn. Defendant called on him in the latter part of June, 1847, said he had 900 or 1000 molasses shooks and heads to dispose of, and wanted witness to assist him in selling them. Witness was a dealer in them. Told defendant he would assist him. Witness mentioned names of several parties, dealers in the articles, to whom he would apply.. Among others, named the plaintiffs. Defendant then told witness not to go to plaintiffs, as he had made a contract with them formerly for this lot of shooks, but that owing to some difficulty or misunderstanding he did not wish me to call on them to make the sale to them. I afterwards sold the shocks for the defendant.
    These shooks were of a superior quality, made better than ordinarily, as if made to order. The hoops were larger and better finished ; were worth more than the ordinary kind in the market. The fair market price of shooks and heads was, at this time, from $1 40 to $1 45, each.
    On cross-examination, witness said, the defendant said he had a contract with the plaintiffs for these shooks.
    The counsel for the defendant admitted that the navigation alluded to in the plaintiffs’ declaration was open at the time specified therein; and also admitted the partnership of plaintiffs and defendants.
    The plaintiffs’ counsel then rested his case.
    The counsel for the defendants then moved for a nonsuit, on the grounds,
    That the contract, if any, alleged in the plaintiffs’ declaration, was void by the statute of frauds.
    I. There being no note or memorandum in writing of the contract, and signed by the party to be charged thereby.
    II. That no money was paid by the purchasers nor was any part of the goods delivered by the defendants.
    The court denied the motion, and the counsel for the defendants excepted.
    The defendants’ counsel then offered and read in evidence the following letter from the plaintiffs to the defendants, to show that no contract had ever been made between the parties. (The signature to which was admitted by the counsel for the plaintiffs to be in the handwriting of Mr. Polhemus, one of the plaintiffs.)
    Mess. E. S. & D. Vaughn,
    Gentlemen.—We have been expecting to hear from you for some time back, in answer to an inquiry as to what you have been making in the way of cooperage this winter, and what you would have on hand to sell at the opening of navigation; hoping to hear from you in reply, we are yours, truly.
    Troy, April 27,1847. Robertson & Polhemvs,
    281 Pearl St., New York.
    To Messrs. E. S. & D. Vaughn,
    Glenn’s Falls, Saratoga Co., N. Y.
    Postmarked, (Troy, N. Y. Apr. 28.)
    The defendants’ counsel then rested.
    The. plaintiffs’ counsel then recalled Robert A. Weydale, who further testified, that at the time Mr. Vaughn made the contract with the plaintiffs in December, 1846, there was some, talk about sugar shoolcs also, but there was no contract for any sugar shooks, as Vaughn stated that" he had never made them, and did not know what they would cost until he went home and enquired.
    The judge gave a judgment for the plaintiffs for $300, and a new trial was now moved for upon a case made by the defendants, with leave to either party to turn the same into a bill of exceptions.

      Brady for defendants, made and argued the following points :
    I. If any contract was ever made between the parties, the letter of the plaintiffs of the 27th April, 1847, is evidence to show that it had been rescinded by the parties prior to the commencement of the suit.
    II. The contract, if any existed, was void by the statute of frauds.
    1st. Being a contract for the sale of goods of the value of more than fifty dollars.
    2d. No note or memorandum in writing being made thereof at the time and subscribed by. the parties to be charged thereby.
    3d. No part of the goods were delivered by the vendors, or received by the purchasers.
    4. No part of the purchase money paid by the purchasers. 2 R. S. 2d Ed. 136, Sec. 3.
    III. It was a contract for the sale of goods and chattels and not for work and labor : the subject matter being ordinary articles of merchandise. The work and labor to have been performed, if any, was work and labor for the defendants and for their benefit, and not work and labor for the plaintiffs. Downs v. Ross, 23 Wend. 270 ; Shindler v. Houston, 1 Com. 251 ; Smith v. Surman, 9 Barn. & Cress. 561 ; Garbutt v. Watson, 5 Barn. & Ald. 613 ; Gardner v. Joy, 9 Met. 177 ; 9 Geo. IV., ch. 14.
    IV. The Judge erred in not nonsuiting the plaintiff, upon the grounds stated by the defendants’ counsel.

      Woodward for plaintiffs,
    relied upon Sewell v. Fitch, 8 Cow. 215, as a decisive authority.

      This and the three following eases were accidentally omitted in the last vot of these Reports.

   Br the Coübt.

Dueb, J.

We certainly think that this case is within the mischief that the statute of frauds was designed to prevent, and that the contract between the parties was substantially a contract for the sale of goods and merchandise, and not for work and labor ; but we cannot shut our eyes to the fact, that the case of Sewell v. Fitch (8 Cowen 215), as the counsel for the defendant found himself under the necessity of admitting, is not distinguishable from the present; and that no conflicting decisions are to be found in our own Reports. The contract, which the Supreme Court, in that case, held to be not within the statute, bore an entire analogy to that between the parties now before us, with the single exception, that it related to nails instead of shooks. It is true, that it would not be easy to reconcile Sewell v. Fitch with the cases in England and in Massachusetts, to which we were referred ; but for more than twenty years, it has been considered as evidence of the law in this state, and as such, has doubtless been followed in numerous instances by inferior tribunals. Under these circumstances, we think that it belongs only to the Court of ultimate jurisdiction to set aside the authority of the decision, and correct the error which it probably involves. - If all contracts between merchants and manufacturers for the purchase of goods, to be thereafter manufactured, are to be excepted from the statute of frauds, there seems to be little reason for retaining at all those provisions of the statute which relate to the sale of goods to be delivered on a future day, since it is hardly possible to imagine an exception more arbitrary in its 'nature, and more contrary to the policy upon which the statute 'is admitted to be founded. Such an exception, embracing as it does a very large class of cases, frequently of great amount in value, is, in its principle, equivalent to a repeal; and either the law itself should be abolished, as imposing a needless restraint upon the transactions of business, or, if the sound policy of the law must be admitted, an exception, repugnant to its spirit and destructive of its utility, should no longer be permitted to exist. A new statute, similar to 9 Geo. IV., c. 14, seems to be required, and should the attention of the Legislature be directed to the subject, would probably be passed ; hut we are not legislators, and as judges, must administer the law as we find it established.

Looking only to the effect of our decision upon the immediate parties in this suit, we do not at all regret the necessity of making it. From the most unworthy motives, the defendants deliberately broke a contract which they were in a condition to fulfil; they brought to this city the goods which they had manufactured under their contract with the plaintiffs, and yielding to the temptation of a higher price, sold them to another house : morally they had no right to the gains which they thus acquired, and the judgment which compels them to pay them over to the plaintiffs and punishes them with costs, is eminently just. The allegation that the contract was rescinded by the parties, the judge upon the trial rightly decided to he groundless.

The motion to set aside the judgment is denied with costs.

       The provisions in 9 Geo. IV., c. 14, are, that when the materials are to be furnished by the manufacturer and amount in value to £10sterling, the contract must be in writing, and be signed by the party to be charged.


author: Duer, J.

text:
    Francis S. Lathrop & Dwight Lathrop v. Martin Morris, Theodore A. Meyer & Edward Leon.
    A payee or endorsee of an accommodation Bill or Note is not bound, to prove that he parted with value as the consideration of its transfer.
    He is entitled to recover against an accommodation maker, acceptor, or endorser,, in cases exempt from fraud, by proving that the paper was received by him either in satisfaction of an existing debt or as a collateral security for its payment.
    (Before Duer, Mason, and Campbell, J. J.)
    Jan. 8, 1851;
    Jan. 24.
    This was an action by the plaintiffs as endorsers against the: defendants as acceptors, by their partnership name of M. Morris & Co., of two inland bills of exchange. Each bill was drawn by J. Ereedlander upon the defendants, in favor of E. W. Bancroft; was payable 90 days after date,. and was endorsed by Bancroft -to the plaintiffs. The first was dated Oct. 12, 1847, and was for the sum of $324TYo ; the second' was dated Nov. 3, 1847, for the sum of $5326t2óV The defendants in their answer admitted the making, acceptance, and protest of the drafts, but set up as their defence that they, had accepted them, without consideration, for the sole accommodation of Freed-lander and Bancroft—that they were not transferred to the plaintiffs until after they became due, and that the only consideration for the transfer was a precedent debt. The facts, as they appeared in evidence upon the trial, were as follows :—
    J. Ereedlander, the drawer of the bills, a merchant, residing at Charleston, S. C., being indebted to Bancroft, the payee, for merchandise sold, had .given him his promissory note for the debt, which fell due on the 3d Nov. 1847. Freedlander was unable to meet, and Bancroft refused to renew, the note or extend its payment, but consented to receive the acceptances of the defendants in satisfaction of the debt. The drafts in suit were accordingly made, accepted, and delivered to. him, and he gave up the note.. After the drafts were due Bancroft endorsed them to the plaintiffs, who gave him credit in account for the face of them. The Judge who tried the cause directed the jury to find a verdict for the defendants. The counsel for the plaintiffs excepted to his decision, and the cause was before the court upon an appeal from the judgment rendered upon the verdict.

      E. Merrill for plaintiffs.
    The payee of a draft who receives it before it becomes due, and pays full value for it to the drawer, is entitled to recover in an action against the acceptor, although there was no consideration for the draft as between the drawer and acceptor. In this case Bancroft paid full value by the surrender of Freed-lander’s note, and the plaintiffs, as the endorsees of Bancroft, have succeeded to all his rights. If he would have been entitled to recover, they must be. He cited, Brown v. Mott, 7 John. 361 ; Grant v. Ellicott, 7 Wend. R. 227 ; Commercial Bank v. Morton, 1 Hill 501 ; Chitty on Bills, p. 80, notes (ed. 1849).

      H. E. Davies for defendants.
    The surrender by Bancroft of Freedlander’s note' was not a parting with value, in the sense of the rule which in cases like the present makes it the duty of the plaintiff to prove a valuable consideration. Although the note was surrendered, the bill for which it was given remained, nor has it been yet extinguished, so that the drafts in the hands of Bancroft were nothing more than collateral security for its payment. The decision of the court of errors in Strother v. McDonald (6 Hill 93), has settled the law that when there is no consideration for a bill or note, as between the immediate parties, a precedent debt is not a valid consideration for its transfer, even when the debt is meant to be satisfied, á fortiori not when the transfer can only operate as a collateral security. As Bancroft, not being a holder for value, could not have maintained this action, the plaintiffs, to whom he transferred the drafts when over-due, must be equally barred. They must have been so, even had they paid value to Bancroft, which they did not.
   By the Court.

Duer, J.

It is not pretended in this case that there was any fraud in putting the drafts in suit into circulation. On the contrary, it distinctly appears that they were applied to the very use for which they were intended by the parties. They were drawn and accepted for the sole purpose of talcing up the note held by Bancroft; hence the question whether they were received by him in satisfaction of his original debt, resulting from the sale of goods, or merely as a collateral security for its payment, is not at all necessary to be decided. It is wholly immaterial. It is fully settled that, where there is no fraud, the holder of an accommodation note or draft, which was delivered to him merely as a security for an antecedent debt, has the same title to maintain an action for its recovery against the accommodation drawer, acceptor, or endorser,- as if he had paid, in consideration of its transfer, its full amount in cash. It is not necessary that he'should have parted with value to render the transfer valid. It is sufficient that it was founded upon a good consideration, as between the parties, and this consideration is proved by proving the existence of a debt that was meant to be secured.

The cases of the Portland Bank v. Buck (5 Wend. 66) and Grandin v. Le Roy (2 Paige 509) are express, and we think decisive authorities , and the rule which they follow is stated by the text writers as the established law, and especially by those of the highest authority, Justices Bayley and Story. The case is not altered by the fact that the drafts, when taken by the plaintiffs, were over-due. The plaintiffs, doubtless, took them subject to any equities between Bancroft and the defendants. But no such equity has been shown to exist. For aught that appears, there could have been no defence to the suit had it been brought in the name of Bancroft.

The learned counsel for the defendants, we think, has misapprehended the import and effect of the decision of the Court of Errors in Strother v. McDonald. That case has no reference to accommodation paper, nor, in reference to any negotiable paper, does it establish the doctrine for which the learned counsel eon--tended. Our own views as to its proper construction have been given in White v. Springfield Bank (3 Sand. p. 222), and to those we adhere.

The judgment at special term is reversed. There must be a new trial, with costs to abide the event.

       Vide also Hall v. Clark, 2 Sand. S. C. R. p. 105.


author: Oakley, Ch. J.

text:
    The Sun Mutual Ins. Co., Appellants v. The Mayor, Aldermen, and Commonalty of the City of New York, Harvey Hart, and Joseph Jenkins, Respondents.
    The accumulated profits of a Mutual Insurance Company, which are retained as a fund for the’payment of losses, are a capital stock, upon which the company is liable to taxation as a monied corporation.
    An act of the Legislature, directing a sum certain, arising from the proceeds of .a local tax, otherwise legally imposed, to he applied to the payment of contingent expenses, is not in conflict with the provisions of the constitution.
    (Before Oakley, Ch. J., Doer and Paine, J. J.)
    May 10, 1851.
    This was an appeal from a judgment at special term .dismissing the complaint. " The question to he determined arose entirely upon the pleadings.
    The complaint set forth inter alia that the plaintiffs (the appellants) are a corporation, incorporated and existing under and by virtue of three successive acts of the Legislature, passed respectively May 22,1841 ; April 6,1842 ; and March 19,1844; and prayed that those acts might be taken as part of -the complaint. That the Company transacts and has always transacted its whole business with a fund created and arising out of the moneys paid or agreed to be paid to it for premiums of insurance against fire and marine risks, and that all its property, assets, and effects consisted of moneys invested and uninvested, so paid or agreed to be paid for premiums, of interest upon portions of such moneys as were temporarily invested, and of articles of office furniture of small value. That the net profits of the Company, that is the. surplus annually remaining- after the payment of losses and expenses, have always been invested in the manner directed by the several acts above mentioned, and certificates annually issued therefor to the several persons or parties entitled, and averred that such net profits were the personal property of the persons to whom such certificates Avere issued, and Avere liable to taxation in their hands. That the Company had not and nev-er had any capital stock, and that all the property it held, belonged, subject to the payment of losses and expenses, to those who had effected insurance with the Company or their representatives or assigns.
    That the defendant Jenkins, a constable of the city, had lately demanded from the Company the sum of $10,806.25, with interest, as due for a corporation ta.x for the year 1850, and that in making such demand, he acted under color of an authority purporting to be derived from a warrant or Avarrants, issued by the defendant, Hart, as Receiver of taxes for the city. That in issuing such Avarrant or warrants, the said Receiver acted under an authority purporting to be conferred upon him by a warrant in due form under the hands and seals of five of the Supervisors of the city, including the Mayor, and Recorder ■ that this last mentioned warrant Avas annexed to the Assessment Roll of the first Avard of the city for 1850, and in substance commanded the Receiver to collect, from each of the persons or parties named on the roll, the sums of money set opposite his, her, or their name in the last column of the roll. That the name of the plaintiffs was contained in the roll as that of a taxable person or persons, and that on‘the last có’lumn of the roll, opposite their name, Avas set down the sum of money, the payment of which had been demanded from the company in the manner above stated.
    The complaint then averred that the only authority under which the Supervisors claimed the power of raising and collecting a tax within the city and county of Nbav York, was derived from an act of the Legislature, passed March 28, 1850, entitled “ an Act to enable the Supervisors of the city and county of New York to raise money by tax,” and that this act, as contravening several provisions in the constitution of the state, Avas ■null and void.; that admitting the constitutionality of the act, the Company was not liable to. assessment or taxation, and that all the proceedings by which the sum demanded had been assessed and directed to be levied were illegal and void, and it concluded with a prayer, in the usual form, for a perpetual injunction.
    The- answer admitted the principal facts set forth in the complaint, but insisted upon the legality of the tax demanded from the Company, and of the proceedings to enforce its application, and averred that the accumulated profits of the Company were a capital within the meaning of the Revised Statutes, upon which it was liable to be taxed, and that it appeared from a statement published by the Company, that their profits amounted to more ' than $950,000, the sum upon which, as a capital, the tax demanded had been assessed.
    The questions of daw arising upon the pleadings were,
    First, Whether the surplus profits of the Company, which were accumulated and invested according to the provisions of the Acts constituting its charter, were a capital upon which it was liable to be taxed as a monied Corporation ? and
    Second, Whether the Act of March 23, 1850, was repugnant to any provisions in the Constitution of the S tctte ?

      These questions were now very fully and ably argued by H. Ketchum and S. Jones for Appellants, and H. E. Davies for Respondents—who insisted that upon the first question the judgment of the Court of Appeals, in the case of the Mutual Insurance Company of Buffalo, and the Board of Supervisors of the County of Erie, was a controlling authority (now reported, 4 Comst.). He also cited upon the same question, Deraismes v. Mutual Insurance Company, 1 Comst. 371; Howland & Aspinwall v. Myer, 3 Comst. 290; and the Sun Mutual Insurance Company v. the Mayor, &c., 8 Barb. S. C. R. 450.
    The provisions in the Constitution, which the counsel for the appellants contended were violated by the Act of March 23, 1850, are § 16 Art. 3 and § 13 Art. 7. The first of which declares that, “ no private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title"—and the second, that, “ Every law which imposes, continues, or revives a tax, shall distinctly state the tax, and the object to which it is to be applied ; and it shall not be sufficient to refer to any other law to fix such tax or object.”

         The Act of March 23, 1850, is as follows:
      § 1. The Board of Supervisors of the City and County of New York is hereby empowered, as soon as conveniently may be after the passage of this Act, to order and cause to be raised by tax on the estates real and personal subject.to taxation according to law within the said City and County, and to be collected according to law, a sum not exceeding one million six hundred and six thousand six hundred and twenty-five dollars, to be applied towards defraying the various contingent expenses legally chargeable to the said city and county, and such expenses as the may..r, aldermen, and commonalty of the city of New York may in any manner sustain or be put to by law; such portion of the contingent expenses of the said city and county of New York as relates to repaving, repairing, and cleaning streets in that part of the city lying south of a line running through the centre of Thirty-fourth street, shall he assessed only on that part of the said city lying south of the said line; and also a further sum not exceeding four hundred and ninety-two thousand dollars, by tax on the estates real and personal subject to taxation according to law within the said city and county, and to be collected according to law, to be applied towards defraying the expenses of police in said city and county; and also a further sum of one hundred and eighty-five thousand dollars, by tax on the estates real and personal subject to taxation according to law within that part- of the city and county of New York, which is or may be designated by the common council of the city of New York, by resolution or ordinance, as the lamp district, to be collected according to law, and applied towards the expense of lighting such parts of the city last mentioned; and also the further sum of two hundred and ninety-five thousand three hundred and forty-four dollars, by tax on the estates real and personal subject to taxation according to law within the said city and county, to be collected according to law, and applied towards defraying the deficiency in taxation in said city and county for the year one thousand eight hundred and forty-nine.
      § 2 This act shall take effect immediately.

   By the Court.

Oakley, Ch. J.

It is not to be denied that there is much force in the arguments that have been addressed to us by the learned counsel for the appellants, upon the principal question in the cause, viz. the liability of the Company to be taxed, under the Revised Statutes, as a monied corporation, deriving an income or profit from its capital (1 R. S. Part 1, Chap. 13, Tit. iv.); and were we at liberty to consider that question as still open, we should, perhaps, find it difficult to escape from the conclusion that was pressed upon our adoption ; but we cannot regard the question as now open. We are unable to distinguish this case from that which the Court of Appeals has recently decided. The difference between them is merely circumstantial; in principle, there is none whatever ; and the judgment of the court of ultimate jurisdiction must therefore control our own. We are thus constrained to say that the annual profits of the Company, which are retained and invested as a fund for the payment of its debts, and yielding an income to its members, are a capital, within the meaning of the Revised Statutes, and upon which, as such, the disputed tax has been legally assessed.

Nor can wo exempt the appellants from the payment of this tax, upon the ground that the Act of the Legislature under the authority of whicn. it was imposed, is unconstitutional and void. The power of courts of justice to declare the nullity of Legislative Acts, which violate the provisions either of the Constitution of tlie United States or of the State, is undoubted ; but the power, for manifest reasons, is to be exercised in all cases, with extreme caution, and never, where a serious doubt exists as to the true interpretation of the provisions that are alleged to be repugnant. In the present case, we think, it may be seriously doubted, whether the clause in the Constitution upon which the appellants’ counsel mainly relied (Cons. § 13, Art. 7), ought not to be construed as relating, exclusively, to the imposition of a general tax for State purposes, and not, at all, to the imposition of a local tax for local objects, and the doubts we feel would alone preclude our positive adoption of a different construction.

Were we satisfied, however, that tlie clause in question must necessarily be construed as embracing every law by which a tax, local or general, is imposed, or an authority to impose such a tax, is given, we should still be unable to say that the intent of the provision is violated by the act of 1850, under which our Board of Supervisors has acted. Had the act failed to state the amount of the tax that the Supervisors are empowered to raise, or to direct the application of the money when raised, it would have been liable to the objections that have been urged ; but it is not thus defective, and neither of these sins of omission can be justly imputed. That the tax itself (that is, the amount to be raised, and the property upon which it is to be levied) is distinctly stated, is not denied, and we think that the object to which it is to be applied, is stated as distinctly as, from, the nature of the object, could be justly required, or, perhaps, was practicable. It is true, that a very large proportion of the whole amount of the tax is directed to be applied towards defraying the contingent expenses of the city, without any distribution ot those expenses, under different heads or branches of expenditure, and the appropriation to each of a definite sum. But if the expenses thus provided for were, as we are bound to "suppose, in reality contingent, that is casual, uncertain, and fluctuating, such a division and special appropriation were impracticable. Expenses are contingent, because it is not and cannot be known, under what head of expenditure they will fall, nor consequently what sum must be appropriated, under each head, in order to meet them. It is only their total amount that can be anticipated by an estimate approaching to certainty, and hence it is only by the appropriation of a sum, in gross, that the requisite provision for their payment can be made.

The Constitution of the United States contains a clause which bears a very exact analogy to that we are considering. It is that which declares that “ no money shall be' drawn from the treasury but in consequence of appropriations made by law ” (Const. U. S., Art. 1, Sec. 9, No. 6). The appropriation of money to a particular purpose means exactly the same, as the designation of the object to which the money is to be applied. The difference is only in the form of expression. We believe that every Act of Congress, providing for the annual expenses of an executive department of the government, appropriates a sum, in gross, as a provision for miscellaneous or contingent expenses, but, we apprehend, it has never been thought that upon this ground the validity of such a law, or appropriation, was liable to be questioned.

The objection to the validity of the Act of 1850, founded upon § 16 in Art. 3 of the Constitution, is still more untenable than that we have considered. The raising of a tax, and its collection and application, may, most reasonably, be considered as one subject, and this subject is therefore sufficiently expressed in the title of the act. This is emphatically true, if the clause in the Constitution which relates to the imposition of a tax, is applicable to a local act, since upon this supposition the law, which imposes the tax, must embrace its application.

It is not a light thing to set aside an Act of the Legislature, even when the objections to its validity are grave and weighty, but when they touch not the substance of the law, or of the authority of the Legislature to pass it, but are merely criticisms upon its form or phraseology, the exercise of such a power by the judiciary of the state would be prolific of evil, and would soon be universally condemned. We think the condemnation would be just, and are not at all disposed to incur it.

The judgment at special term is affirmed with costs.