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    Charles H. Reynolds, plaintiff and respondent, vs. Jackson S. Schultz et al. defendants and appellants.
    1. For any abuse by the Metropolitan Board of Health of their authority, if they cxk judicially, as stated in the first subdivision of section 14 of the statute by which they were created, (Zaibs of 1866, eh. 74,) such as making an order for the abatement of an alleged nuisance, without evidence, or perhaps for refusing to revoke it on overwhelming or uncontradicted evidence of its being erroneous, a writ of certiorari would afford a remedy. For refusing to fix a day for hearing of the party affected, a mandamus would lie. And for the usurpation of jurisdiction in cases where not warranted by the statute, a writ of prohibition would furnish a corrective.
    2. It may be considered a matter of grave doubt whether the legislature can constitutionally authorize any person or body, either upon their private opinion, or ex parte evidence, to destroy property, even under the pretext of the public good, without providing either for a hearing, before condemnation, or for compensation, Ter Robertsojt, Oh. J.
    3. The authority and duties of the Metropolitan Board of Health, under the first subdivision of the 14th section of the act creating them, differ so widely from those created under the 2d subdivision, that the former may be constitutional, even if the latter are not.
    4. Such board of health are by the statute vested with the preliminary right "of determining their jurisdiction ex parte for the purpose of a hearing and final adjudication, as to an alleged nuisance; and their decision upon- such jurisdiction is final, if there is any evidence before them tending to sustain it.
    5. A provisional order made by the board for the abatement, removal or melioration of a nuisance, may become final by the failure of the parties interested, and notified, to demand a hearing.
    6. Abundant means being provided, by the statute, for obtaining the sufficient proof which the board are to take, without leaving their office, or uttering a word of accusation, themselves, such a notice of accusation, or obtaining evidence in advance, with an opportunity of being heard, with evidence,- and such a notice of final determination, as the statute prescribes, is an exercise of judicial power, and binding, unless prevented by some positive constitutional prohibition.
    7. The following objections to the constitutionality of the exercise of power by the board of health, under the 1st subdivision of the statute, because such proceedings violate “the law of the land” required to be observed by section 1, article 1, of the constitution of this state, and are not “ due process of law ” under the 6th section of the same article, are Untenable, viz : That the functions of accuser and judge are blended in the same body; that no process is served, or notice of the proceedings given to parties interested; that the judgment precedes the trial; that the accused is not confronted with witnesses against him; that the testimony is not under oath, nor the ordinary rules of evidence observed; that no means are afforded to the accused to compel the attendance of witnesses; and that no trial by jury is allowed, under the statute.
    (Before Robertson, Ch. X, and Garvin, J.)
    Heard November 15,1866;
    decided January 16, 1867.
    Appeal from an order made at a special term, restraining the defendants from enforcing an order made hy them as the Metropolitan Board of Health, directing the suspension of the business of manufacturing shell lime conducted hy the plaintiff on certain premises in the city of New York, in East Fifteenth street, (between Avenues A and B,) until the mode of conducting such business should be altered so that no odors could escape into the open air; that certain materials, consisting of shells and other substances, should be removed and such premises cleaned. The order so made by the defendants was a modification of a prior order made by them directing absolutely such business to be suspended, shells and other matters removed, and the premises thoroughly cleaned, and declaring that “ such premises and business were in a condition and in effect dangerous to life and health; and a nuisance.” Such last mentioned order was so modified, after a service of a copy of it on the plaintiff, and his failure to demand a hearing within the time allowed by law for him to do so.
    The order appealed from was made upon an order to show cause why a temporary restraint, which had been granted'upon a complaint and accompanying affidavits, should hot be continued. And the motion was heard on the papers on which such order' to show cause was granted, and a sworn answer of the defendants with accompanying affidavits.
    The complaint sets forth the prosecution hy the plaintiff of “shell burning, or the manufacture of lime from shells,” on the premises in question, and his payment of a large rent and taxes therefor; that the kilns in which he burned such shells were fifty feet distant from the street, and had been built twenty years previously, and have constantly been used for that purpose ; that the neighborhood has always been, since he commenced such business, closely built upon and populous ; that the health of the neighbors is good, and no sickness has resulted, from, carrying on such business. It then state the places from which the materials used by the plaintiff in his manufacture are procured ; described the process of applying the lime in the course of the manufacture to the consumption of animal matter, so that no perceptible smell or exhalation arose, and of heat, so as to create an innocuous smell, and of water to the burned shells, so as to create a disinfecting, inoffensive, agreeable and healthful vapor. It further alleged that the product of such process was extensively used in building in this city, was a powerful disinfectant, destroying or modifying animal matter when brought in contact with it, and not injurious to the health of persons residing in the vicinity of such kilns.
    Such complaint also alleged that one of the defendants,, who is .president of such board (Schultz) after reading a report in writing, made by one of its inspectors, a physician of standing, and residing in the neighborhood of such kilns, favorable to the safety and healthfulness of the plaintiff’s business and premises, declared his intetion to compel the plaintiff to discontinue his business and remove the shells he had accumulated, and directed another inspector residing at a distance, and not familiar with such neighborhood, to examine the premises and make a report, who did so in writing, and thereupon the defendants, as such hoard, made the first order already alluded to, in which there was a recital that the board had “ taken and filed among its records what it regarded as sufficient proof to authorize its declaration” that the premises and business in question “were a nuisance” and it therefore “entered them on its records as a nuisance;” that application was thereupon made to the defendant Schultz for a hearing before said board upon such order, their opinion therein, and the general condition of the plaintiff’s premises. That said Schultz, in reply to such application, declared emphatically “ that no evidence would satisfy him that shell burning was not a nuisance, and the business should be stopped at all events, and a hearing would be productive of no change in the order of the defendants.” That about a month and a half afterward an officer of such board, by direction of the defendants, took charge of the plaintiff’s premises and compelled him to suspend his business.
    The complaint further alleged that many kilns at which large amounts of shells are converted into lime by the same process as that used by the plaintiff exist in the city of New York. That the defendants made a somewhat similar order in regard to another similar but larger establishment; but that neither it nor any other establishment, except the plaintiff’s, have been placed in charge of an officer.
    It further alleged that the plaintiff has a large quantity of shells on such premises, (60,000 bushels,) procured at great expense, ready to be converted into lime ; that he had a number of men-(12) to whom he paid large wages, and á number of horses (7) in use in such business ; was under large daily expenses, and manufactured a large quantity (600 bushels) of lime every day ; that he had no means independent of such business, and-if it was suspended he would be entirely ruined ; that the cost of removing such shells would be enormous ; that he had no means, and could procure none to remove the same. It denied that such premises, or the business carried on therein, were a nuisance or detrimental to life or health, and offered to establish that fact before any tribunal “ acting according to the ordinary course of the law” in any way. the court might require.
    The relief demanded by such complaint was for the restraint of the defendants, which was afterwards granted by the order-appealed from, and for further or other relief.
    The answer of the defendants denied the allegations in the complaint of the health of the neighbors of the plaintiff’s establishment, of the absence of all sickness therefrom, its present and past cleanliness and good order. Also, the allegations in it respecting the process employed by the plaintiff, the effect of the lime, use of heat and application of water to the materials and their products at such manufactory; also the statement in such complaint of the contents of the report of the first inspector contained in it of the declaration of the president of the hoard on its receipt, and any formal application for a hearing. It further alleged the intention of the defendants to treat all lime kilns, which they are satisfied are a nuisance, in the same way ; and that as to the special establishment mentioned in the complaint, the'only reason a similar order was not made, was the prior engagements of the defendants and the lapse of time not being such as is required by law. It controverted the statements of the complaint as to the extent of the plaintiff's business, except as to the quantity of oyster shells on hand, his means, the expense of removal and its effect on the plaintiff as alleged in the complaint.
    Such answer claimed that the defendants were the regularly constituted “Metropolitan Board of Health,” alleged that they took and filed, “ among its records what it regarded as sufficient proof as to the premises and business in question to authorize its declaration that the same was in a condition and in effect dangerous to life and health, and a public nuisance,” and thereupon- it entered on its records the same as a nuisance, and made the order before mentioned. That they caused such order to be served on the plaintiff before its execution, and the time fixed by law having elapsed without application for a hearing or to have such order stayed or modified by the plaintiff or any person interested in such premises or business, upon proof of such service no such bearing, stay or modification having been applied for, made a final order, whereby they modified such first order, directing “ such business to be discontinued until the mode of conducting it be so altered that no odors could escape into the external air, and until the shells are removed and the premises are thoroughly cleaned,” and ordered it to be carried into execution.
    Such answer also averred that such premises, and the business conducted therein, as it was carried on, were a nuisance, dangerous to life and health, and were in a condition and effect so dangerous at the time of making such orders, and at the commencement of this action. It takes the objection that the court had no jurisdiction to restrain the proceedings of such board, or grant the relief demanded in the complaint.
    The allegation in the complaint that an inspector of the defendants’ was requested by the defendants to make a report, and reported favorably on the plaintiff’s establishment, was sustained by the affidavit of such inspector, but denied by the defendant Schultz qualifiedly, upon belief. The allegation that such defendant, on receipt of such report, peremptorily pronounced the business in question a nuisance, and declared his intention to have such business abated, was also sustained by the affidavit of the same inspector, but denied by that of the same defendant, except that he admitted stating at some time that in his opinion shell burning, as conducted in lime kilns on the east side of the town, between Fourteenth .and Fifteenth streets, was a nuisance in those localities, and as then conducted ought to be changed or abated, and that it was to correct such evils the board was established.
    The affidavit of the defendant Schultz further denied any prejudice or predetermination on the part of the defendants against the plaintiff’s premises or-business ; alleged that the opinion which they formed, and upon which they acted, was derived from the evidence before them ; and that although it convinced them when presented, nothing prevented them from giving a fair and impartial consideration to any counteracting testimony produced., That before any action was taken by such board a petition had been presented by a large number of residents of the vicinity complaining of the plaintiff’s establishment as a nuisance and begging its intervention. That the first order was made upon the written report of one of the inspectors of such board, (Dr. Jones,) and other evidence satisfactory to them. That the board was always ready and willing to give the plaintiff “ a reasonable and’fair opportunity ” to be heard before such board. That the plaintiff came to the office of the board with another person, when such defendant told him he was entitled to a hearing. Such other person “ then asked what he thought the chances were on a hearing ? ” and such defendant replied “ he did not believe that the hoard would change its decision ; that he for one had lived too long in the vicinity of the premises and had experienced too often and too strongly the had odor proceeding from it to he readily convinced that it was not a nuisance.” The reports of the inspector, upon which the defendants acted in making the order in question, stated that the manufacturing of lime from shells, the presence of unhurned shells with animal matter adhering thereto, the refuse and filthy condition of the premises were detrimental to health ; that the burning of the shells caused a most foul and unhealthy odor, compelling the closing of doors and windows in the neighborhood.
    The other affidavits were principally directed to the questions of fact, whether the plaintiff’s establishment was or not a nuisance. Other facts appear in the opinion of the court.

      Charles Tracy and Geo. Bliss Jr. for the appellants, defendants.
    I. The law creating the Metropolitan Board of Health, and conferring upon it the power exercised in this case, is constitutional, and has been so held by several courts. (Laws of 1866, vol. 1, pp. 114, 125; 2 id., pp. 1462, 1468, 9. Reynolds v. Schultz, per Barbour, J. Westheimer v. Schultz, per McCunn, J. Cooper v. Schultz, N. Y. Com. Pleas. Mayor of N. Y. v. Board of Health, 31 How. Pr. 385. Seguine v. Schultz, Id. 398. Stewart v. Schultz, Sup. Ct. Sp. Tr. N. Y. Van Wormer v. Mayor of Albany, 15 Wend. 262; 18 id. 169.)
    II. The terms of the act are plain, and present no difficulties of interpretation. By section 14, the board is invested with authority to determine as well as to order and .direct. The power and duty of the hoard to make and enforce its orders, does not depend on the fact of the thing complained of being a nuisance or dangerous to life or health, but on its own decision, and on its taking what it regards as sufficient proof of such fact. The intention of the law was to provide a proper and skillful hoard, to take and weigh proof, and form opinions in such cases, and to apply appropriate and direct remedies. The like feature appears in some previous health laws. (Laws

      of 1801, 1 Webst. 373, § 32. Sess. Laws 1823, p. 69, § 11; p. 79, § 39. N. Y. City Health Law of 1850. Sess. Laws 1850, p. 607.)
    In this respect the former act of 1850, (ch. 324.) for the preservation of public health in all parts of the state, (except the cities of New York and Brooklyn,) (Sess. Laws 1850, pp. 690, 693; 1 R. S., 4±h ed. 852 ;) was different, as it only gave power to make regulations for the suppression of nuisances, but none to determine as to their existence. Hence the decision of Rogers v. Barker, (31 Barb. 447.)
    III. The Metropolitan Board of Health having exercised its legal power in making the order in question, the court have no jurisdiction to restrain the execution of the order by injunction, nor in any manner to control the order or its execution collaterally. Unless the determination and order be removed by writ of certiorari, and be reversed on such writ, and until such reversal, they are in full force and must be obeyed. (Ex parte Mayor of Albany, 23 Wend, 277. Simpson v. Rhinelander, 20 id. 103. Birdsall v. Philips, 17 id. 464. Allyn v. Com. of Schodack, 19 id. 342, McLaren v. Mayor of N. Y., 1 Daly, 243, 250, 251, 252. Van Wormer v. Mayor of Albany, 15 Wend. 262. People v. Board of Health, 33 Barb. 344. Belcher v. Farrar, 8 Allen, 325, 327, 329. Leigh v. Westervelt, 2 Duer, 618. License Cases, 5 How. U. S. Rep. 581. Ex parte Persons, 1 Hill, 655. Hyatt v. Bates, 35 Barb. 308, 314, 317, 318. Hartwell v. Armstrong, 19 id. 166. Woodruff v. Fisher, 17 id. 224, 234, 236. Mayor v. Meserole, 26 Wend. 132. Wiggin v. Mayor N. Y., 9 Paige, 16. Walker v. Devereaux, 4 id. 229. Philips v. Wickham, 1 id. 590.)
    IV. The plaintiff’s case presents no ground for equitable interference. ’
    1. If the board had not legal power to clear the premises, or stop the operations of the plaintiff, their acts would be merely a trespass, to prevent which no injunction lies. (Albany &c. N. R. R. Co. v. Brownell, 24 N. Y. Rep. 345, 348. Mayor of N. Y. v. Conover, 5 Abb. 171.)

      2. Any injury thus done, is remediable by common law action.
    3. There is no trace of either of the elementary grounds of chancery jurisdiction—fraud, mistake or trust — m any part1 of this case ; and no statute extending equity jurisdiction over this trade or these premises, the action cannot be sustained.
    Y. There is every presumption in favor of the correctness of the decision of the board. If there was any occasion to look into the state of facts appearing by the present ease, the court would find the weight of evidence greatly against the plaintiff. The plaintiff, three physicians, and twelve other persons, represent the kiln as not injurious to health. .The president of the board of health, four physicians, and seventeen other persons, represent it as very offensive and injurious to it.
    YI. Upon the state of things existing in this case, and after receiving many complaints, the board of health made the order complained of. The plaintiff, refusing to avail himself of the right of investigation before the board, allowed to him by law, sought to try the matter by an equity action, by denying the authority of the board itself. The order of which he complains does not destroy his property or his business, but properly regulates the business. It requires him merely to discontinue the business until the foul mass of shells is removed and the premises are cleaned, and the mode of conducting the business is so altered that the odors shall not escape into the external air. If he will not at once clear his premises and clean them up, and will not make his business consistent with public health, his case deserves no favorable consideration. If the board of health should tolerate such an establishment, so carried on and producing such results, it would justly incur the guilt of being accessory to this grevious public wrong.

      J. C. Carter, for the respondent, plaintiff.
    I. The act in question is a thorough practical adoption of the absolute theory of government, and is in its nature and its whole substance in irreconcilable conflict not only with the constitution of this state, but with the principles of all constitutional government.
    1. It commits the whole subject matter of nuisances, and the public health to the “ board ” which it creates. The citizen is not instructed in the least as to his duties or his rights, but is turned over to the wisdom or the folly, as the case may be, of the “ board,” and is enjoined to obey whatever they may order.
    2. It abandons the notion of a distribution of power among the three great departments, and concentrates all legislative, executive and judicial functions in one body.
    3. An act which utterly ignores the principle of the distribution of supreme power and bestows it without limitation or restraint upon one body, cannot be, in any of its parts, in harmony with a constitution which exists mainly for the purpose of securing such distribution.
    4. The act in question withdraws the whole question of nuisance or no nuisance away from ordinary judicial tribunals and commits it exclusively to the judgment of a “board.” Such was, beyond all question, the intention of the authors of the measure. Distrust of judicial tribunals is apparent on the face of the act. If we could ignore the private intent of the omthors of the measure and confine our scrutiny to the legislature which enacted it, certain maxims of legal construction might justify the conclusion that the legislative intent was less sweeping; it being a rule of statutory interpretation that superior courts are not to be considered as deprived of their ordinary jurisdiction without express words indicative of that intent. But in that case the action of the board in the present instance could not be pleaded as a bar to the relief sought in the present action.
    5. It is one of the multitude of absurd crudities in this law that it declares all the acts, proceedings and orders of the “board” to be judicial when the larger part of them are plainly and certainly ministerial. (§ 31.)
    II. On the supposition that the “board” is not, in fact, erected into a court competent to pass judgment upon the question of nuisance, the act in question is an unlimited license" to this board to take and destroy private property, without “due process of law,” contrary to the provisions of article 1, section 6 of the-constitution of this state.
    1. Under the power given by the 14th section of the act,' any building may be. torn down, personal property to an unlimited amount may be taken from the possession of the owner and even destroyed. Indeed, it is difficult to say what in the way of the taking and destruction of property may not be done without any other warrant than the mere act of the legislature. Hothing is better settled than that this is not “ due process of law,” (Story on the Constitution, vol. 3, § 1783. Taylor v. Porter, 4 Hill, 140. The People v. Wynehamer, 3 Kern. 378. Fisher v, McGirr, 1 Gray, 1. Greene v. Briggs, 1 Curtis C. C. 311. Hoke v. Henderson, 4 Dev. 1. Murray’s Lessee v. The Hoboken Land and Imp. Co., 18 How. U. S. Rep. 278.)
    2. A nuisance may not be property, or, at all events, the abatement of it may not be an infringement upon any right of property, but this legislative license to take property is not limited to what is, in faot, a nuisance, or detrimental to life or healthy but extends to every thing which is such, “ in the opinion of said board.” (§ 14.) A legislative declaration that every thing is in fact a nuisance, which is such in the opinion of the board, is utterly void, as being wholly beyond the legislative power. It is a plain attempt by the legislature to exercise judicial power. (The People v. Wynehamer, supra. Rogers v. Barker, 31 Barb. 447. Clark v. The Mayor of Syracuse, 13 id. 32. Fisher v. McGirr, 1 Gray, 1. Hoke v. Henderson, 4 Dev. 1. Walker v. The Board of Public Works, 16 Ohio Rep, 540. De Chartellux v. Fairchild, 15 Penn. Rep. 18. Lewis v. Webb, 3 Greenleaf, 326. Greenough v. Greenough, 11 Penn. Rep. 489.) A legislative declaration that the business now carried on by A. B. is a nuisance, and authorizing its abatement, is utterly void, as a usurpation of judicial power. It does not help the matter at all, if the legislature, instead of directly declaring a specified existing thing to be a nuisance, declares.that every thing which, in the opinion of certain persons, is a nuisance, is so in fact. If this board tears down the house of A. B. as being, in their opinion, a nuisance, and he sues them in trespass on the assumption that the “ board ” is not a court, its opinion is. not a good plea by way of res adjudicata in bar of the action. The suit is tried upon the merits, and it is judicially determined that the house was not a nuisance. But it has been pulled down and destroyed. Was this by “ due process of law ?”

    3. A nuisance, in fact, may be lawfully abated by private force, and what any private citizen may rightfully do, the legislature may make it the duty of a public officer to do. In either case the person undertaking to abate the supposed nuisance, acts at the peril of being able to prove, when called upon in some appropriate judicial proceeding, that the thing abated was in fact a nuisance. It may be thought to be a severe rule which subjects a public officer to personal liability when he has acted according to his best judgment in a case in which it was made his duty to exercise his discretion. But the instances of this are familiar. Magistrates issuing warrants are personally liable, when acting even in good faith without jurisdiction, although the question whether they have jurisdiction or not may be a very difficult one. So also are officers executing such warrants, if they have notice upon the face of the warrants of the want of such jurisdiction.
    4. The legislature cannot protect public officers from responsibility for their acts by investing them with a discretion to decide questions essentially judicial, and then charging them with the duty of such discretion. (Murray’s Lessee v. The Hoboken Land and Imp. Co., 18 How. U. S. Rep. 284.)
    5. From the earliest period a public nuisance has been indictable at common law, and the existence of such nuisance or of a private nuisance has always been deemed a judicial question, triable before a court and jury on a public indictment or in a private suit. In the whole range of English and American jurisprudence, no judgment, or even dictum can be found to the effect that the decision of any public officer or body, not being a judge or a court, was of any binding force whatever touching the question of what is a nuisance.
    III. If the act in question undertakes to erect the board of health into a court, or quasi judicial body, competent to pass upon the question of nuisance, it appears still more clearly, if that be possible, that it gives a mere “ legislative license to take property without due. process of law.”
    1. It is to be observed that the security of property is placed by our state constitution upon the same high ground as the security of life. Both are protected by the same clauses and in the same words. (Const, art 1, §§ 1 and 6.) It follows, therefore, by the strictest sequence, that if property can be taken by such pretended judicial proceedings as are provided in this act, life could be taken by an act framed in the same general manner for the suppression of crime. Even the right of trial by jury, “ in all cases where it has been heretofore used,” is not more sacredly preserved in cases where life is at stake, than in those where property only" is involved.
    2. An act authorizing certain persons therein named, when “in their opinion” any person had committed the crime of murder, to “take and file among their records what they should regard as sufficient proof” thereof, and thereupon make an order that the guilty party should be hanged on a given day, and then providing that the execution of the order should be suspended on the application of the criminal, in order that he might have a hearing before the same judges who had thus convicted him, would sound rather strange to a constitutional lawyer. But there is absolutely no constitutional objection to such a law, which would not apply with equal force to the act now Under discussion.
    3. What sort of a court, and what forms of proceeding will satisfy the requirements contained in the phrases, “ due process of law ” and “ law of the land ” (for they are synonymous in meaning) has been the subject of much discussion. Some points may be still unsettled, but it is believed that the following requirements are clearly essential;

      (a.) The court must be impartially constituted, and there must be a prosecutor, a defendant and a judge—actor, reus and judex—and one person cannot fill any two of these characters. (3 Blackstone’s Com. p. 25. Murray’s Lessee v. The Hoboken Land and Imp. Co., supra.)

    (6..) Jurisdiction must be acquired by the due service of some form of process, or notice of the proceeding, and this process or notice must give the party his day in court. (Fisher v. McGirr, 1 Gray, 1. Marshall Ch. J. in the Mary, 9 Cranch, 144.)
    (c.) The trial must precede the judgment. (Fisher v. McGirr, supra.)

      (d.) In all cases where “ trial by jury has been heretofore used,” it must still be preserved. . Const. of N. Y. art. 1, § 2. 2 Kern. 198.)

      (e.) The defendant must have the opportunity of being confronted with the witnesses who are produced against him. (Fisher v. McGirr, supra. Greene v. Briggs, 1 Curtis C. C. 312.)
    (f.) The ordinary rules of evidence must be observed, and the testimony must be upon oath. (Fisher v. McGirr and Greene v. Briggs, supra.)

      (g.) The accused, or defendant, must have compulsory process to procure the attendance of his witnesses. (Fisher v. McGirr, supra.)

    4. It would be a vital blow at the validity of this act if it could be shown to disregard either of the above requirements. We aver that it utterly violates each and all of them.

    .(a.) The court is not impartially constituted. The board of health is the prosecuting party and also the judge. It is the validity of their own proceedings and conduct which is called in question. (§ 14.)

      (b.) The service of notice of the proceeding upon the party to be affected by it is not secured, but is left contingent. By the very language of the act, three contingencies must happen, in order to secure service of the notice of the proceeding. 1st. The party must be within the district. 2d. It must be practicable to find him. 3d. It must be convenient to make such Service. And in case of the failure of any one of these contingencies, no provision is made for any substituted mode of service, such as by publication or posting. (§ 14.) A pretended judgment pronounced in the absence of the party to be affected by it, and without his having had his day in court, is not an exercise of judicicd power, but is a mere arbitrary edict. (Mullin, J. in Oakley v. Aspinwall, 4 Comst, 514.)
    (c.) But supposing the order to be served in the manner directed by the act, still it mentions no time or place for a hearing ; and whether the party obtains a hearing or not, even then, depends upon his ability to find the board and obtain from them the permission to be heard. (Fisher v. McGirr, supra.) It is a thing which may occur under the provisions of this act, that a man’s house may be ordered to be torn to the ground, and the first that the owner knows of it is that the order is being executed ; then it is too late to apply for a hearing. (§ 14.)

      {d.) The judgment of this pretended court, after the most approved fashion of arbitrary proceedings, precedes the hearing ; “ castigatque auditque.” The only chance given the defendant is to endeavor to annul or modify a judgment of confiscation already passed against him. It would be a sufficient ground of challenge in an ordinary suit, that a juror had formed an opinion unfavorable to one of the parties. By the very language of this act the judges of this anomalous court are required to have an opinion adverse to the defendant before he can have a hearing.
    (e.) The question whether a party has a constitutional right to a trial by jury, is historical, turning upon the inquiry whether, at the time of the adoption of the constitution, a jury trial was the only one employed in cases .similar to the given one. Ho instance can be shown prior to the adoption of our constitution, in which the question of nuisance or no nuisance was, or could be judicially determined without the intervention of a jury, so far as questions of fact were concerned.
    (/.) The party is allowed no opportunity to be confronted with the witnesses. The first he knows of the proceeding is a judgment against Mm, founded upon ex parte evidence, and ex parte testimony of witnesses whom he is not allowed to cross-examine. The subsequent proofs produced against Mm may be all of them ex parte. The law of evidence is thus revolutionized. (Fisher v. McGirr, supra.)

      (g.) The party, in the outset, finds a judgment against him, founded upon testimony which may not even have been taken under oath. The board is allowed to proceed to judgment, and is not required to proceed upon what the law denominates evidence or proof, but upon what “ it may regard as sufficient proof.” (§ 14.) This may be nothing but unsworn ebullitions of private and personal malice. And yet this judgment stands unless the party can remove it.

      (Ji.) But, even with this artificial and illegal presumption and judgment against him, which he is required to take the burden of removing, he is not allowed the benefit of compulsory process to procure the attendance of his witnesses ! This privilege is reserved only to the board which is pursuing him, and, even in that case, the defendant has no right of cross-examination secured to him !
    5. The enumeration of the imperfections of this pretended court might be multiplied, but it has been overwhelmingly demonstrated that the pretended opportunity for a trial afforded by this act, is the merest sham, and tramples upon every requirement involved in the phrases, “ law of the land,” or “ due process of law.”
    6. The second subdivision of section 14 gives the board the power to remove anything “ which said board may regard as dangerous or detrimental to life or health ” from any building or place, public or private, to any place which may please them. This gives them the power to remove any thing they may deem a nuisance, and, in a proceeding under this clause, no hearing whatever is allowed. . (§ 14.) Here is the clearest possible instance of an unlimited license to take property without due process of law. (See authorities above cited.) And, what makes the. case a grosser one, the board can recover, from the party despoiled of Ms property, the expenses attending the act of plunder ! (§ 14.) Under this clause, the warehouse of a merchant may be emptied of its valuable eon-t tents, and removed to some place where they will be speedily ruined, and the expense of the removal be recovered of him by the board, by suit, judgment and execution.
    1Y. The act in question aims a blow at vested rights, to protect which is the leading purpose of the constitutional provisions already invoked.
    1. The right to regulate the future uses of property is admitted, and when this is done, by a law distinct in its requirements, so that the citizen may know beforehand what he may or may not do, no constitutional provision may be invaded. But a practical taking or destruction of property cannot be defended on the ground that it is a regulation. The distinction between the two cases is radical.
    2. If the public good require it, property may be taken for the public use; but the law which permits the taking must, also, provide for compensation, otherwise it is unconstitutional and void.
    3. By the carefully elaborated and stringent health act of England, no trade or manufactory already established can be interfered with. And this is where there are no constitutional limitations upon the authority of the legislature.
    Y. The framers of this act never imagined that its provisions-could stand the test of constitutional criticism. It is more than probable that they entertained the view that a power resided in the legislature in reference to such subjects as the public health, to do, without limit or restraint, whatever was necessary for the public good, and that this power rested upon imperative considerations touching the public safety, and was unaffected by constitutional provisions. But there is no foundation for this view.
    1. The first answer to this notion that the legislature, in framing this act, was exercising, legitimately, power not subject to constitutional restraint, is that the constitution speaks for itself. It contains no clause allowing its provisions to be suspended on any such emergency. None, even, if affecting the public health, have ever been regarded as occasions for suspending the operations of the fundamental law. (1 Black. Com. 139.)
    2. The second answer is, that the public health can be vastly better secured by observing the requirements of the constitution, than by overriding them.
    3. In England the parliament is omnipotent, and there is no written constitution ; yet there a man would scarcely be deemed sane who should propose, in parliament, a law like the one we are discussing. Their health laws are stringent, but private rights are studiously protected under them. (See “ Nuisances Removal” act of England, Statutes at Large, 18 and 19 Victoria, chap. 121, and in particular sections 8 and 12.)
    4. There is but one necessity, under our government, which suspends or overrides the ordinary functions of the law, and that is the presence of a foreign enemy or a domestic foe. The justification of this is, that the very existence of the state is threatened, and, when that is imperilled, all else must be sacrificed in the effort to save it. You may cut away the masts, or throw over the cargo, in order to save the ship.
    5. Even an impending pestilence constitues no such emergency. That does not threaten the life of the state; at the worst, it is but a public calamity. To sacrifice the fundamental law, in order to avert it, would be to accept a great and permanent calamity, in order to escape one infinitely smaller. As between the two calamities, a pestilence, and the creation of a board of inferior magistrates, clothed with unlimited powers, and'not subject even - to the fundamental law of the land, wise and free men cannot hesitate.
    6. What is called the police power is not something over and above the constitution, but strictly subordinate to it.
    7. The maxim salus populi suprema lex, is admitted. It is the principle which, by a bold paradox, is sometimes called the law of necessity. Undoubtedly, in great and sudden emergencies, the citizen may do things which, on ordinary occasions, would not be justifiable. A building may be torn down to prevent the spread of a conflagration. Human laws never undertake to provide for these unforeseen emergencies, for the reason that they cannot be foreseen. What necessity may require, in cases which it is impossible to foresee, cannot be reduced to law. Any endeavor in this direction would be fruitless. There must still be left, outside of' the legal enactment, a large margin for the operation of the so called law of necessity. (Nelson, J. in The People v. The Corporation of Albany, 11 Wend. 539.)
    8.' If the defendants claim that this act is, in part, a codification of the so called law of necessity, and that, by it, they are invested with the power of doing, in order to preserve the public health, whatever they deem necessary; and that, in virtue of this authority, they may take property without “due process of law,” and, when called to account for their conduct, it will be a sufficient defense to plead and prove the exercise, in good faith, of their discretion, they may, equally well and consistently, claim that they have the power to prevent the spread of disease by killing infected human beings, as is done in the case of cattle affected with the rinderpest. If, in the choice of the means by which they are to accomplish the purpose of their organization, they are not restrained by the constitution, then, certainly, there is no power which can restrain them.
    VI. We claim to have established, upon principle and by authority, that the act in question is unconstitutional. The court will certainly restrain this board from proceeding to enforce its order in the present case, for the following conclusive reasons :
    1. The business has been established and carried on for many years without public interference or complaint. The entire capital of the plaintiff is invested in it, and it constitutes his sole means of obtaining a livelihood. The damage he would sustain by having his entire establishment broken up, and by being thrown upon the world without an occupation, and without anything in the shape of property but a law suit against the members of this board, is what the law regards as
      irreparable. Equity interferes where the remedy in damages is not adequate. To say that in this case the plaintiff would have an adequate remedy at law would be a mockery.
    2. It may be conceded, for the sake of the argument, that equity would not interfere to restrain a private person from abating an alleged nuisance by private force, even if the party to be affected by it could demonstrate that the thing was not a nuisance, although this proposition might well be contested. But the case of a public body or public officer claiming to act under the authority of law is widely different. Private individuals have not the control of public remedies against nuisances. The party maintaining an alleged nuisance has the same right and power to defend himself as another has to assail him ; they both act at their peril, and neither have the advantage of the other. But a public officer acting colore officii carries with him the apparent authority and majesty of the law. It is an unseemly thing for a private individual to resist him. Equity will not permit such a public officer under cover of this advantage and authority to make a sweeping invasion of the rights of property. If the case is a fair one for judicial investigation beforehand, equity will require that course to be pursued.
    3. This jurisdiction of the superior courts of law and equity over the action of inferior tribunals and magistrates is familiar. In courts of common law it is exercised according to the nature of the case, through the medium of the great writs of certiorari, mandamus, and prohibition. Similar relief in proper cases is afforded by courts of equity through the process of injunction. There is nothing in the nature or purposes of boards of health, exempting them from the exercise of such supervisory jurisdiction. (Frewin v. Lewis, 4 Mylne & Craig, 249. Clark v. The Mayor of Syracuse, 13 Barb. 32. Rogers v. Barker, 31 id. 447.)
    VII. As to the question of fact, that the burning of oyster and clam shells is a public nuisance per se will not be claimed. Whether in this case the mode in which the business is conducted makes it such, is a judicial question. And if a case,
      even of serious doubt is made, the court' will suspend the action of the board,' until by a trial before some competent tribunal, the question is determined. (Rogers v. Barker, supra.)

    1. The court would so act, even if satisfied that the law was constitutional. Such action is necessary, in order to prevent the most palpable injustice and oppression.
    2. It must be manifest that any trial by this board of the question of nuisance, would be the merest sham. Their desire and determination to carry out their preconceived schemes in relation to the public health, would make it idle to suggest before them considerations based upon legal rights. To send a man claiming legal rights before a body of officers, who claim that they are, and think that they ought to be, despots, is a piece of cruelty from which a court of equity recoils.
    3. These views' are reinforced by the consideration that there is no pretense of a tendency proceeding from this business to excite contagion, and therefore no necessity for immediate action, and also that the consequences to the unfortunate victim of the action of the board, are so fatal and so irreparable.
   By the Court,

Robertson, Ch. J.

The circumstances of the present case do not call for such sympathy with the plaintiff, or indignation against the defendants for unjust oppression of him by them under cloak of legal authority, as to prevent a dispassionate examination of the legality or unconstitutionality of their acts, as a board of health, under the recent statute creating them such. (N. Y. Sess. Laws, 1866, ch. 74.) Twenty-five persons residing in the immediate vicinity of the plaintiff’s lime kilns, in addition to inspectors sent by the defendants for the purpose of examination, testify to the emission of fetid and deleterious odors from the materials out of which the plaintiff manufactured lime, during the course of their submission to great heat. Only nine neighbors testify to a failure to perceive any such odors, in addition to some experts,casual visitors or passers by. The existence of fragments of decayed fish., bivalves and other animal matter among such materials is not denied; so that it would be difficult to believe that unless some powerful chemical agent was applied to them, they could be submitted to heat without the emission of a pestilential stench. The preponderance of the affirmative over the negative evidence is, therefore, so great that we would be compelled to hold on this appeal that the plaintiff’s business, as conducted, was a nuisance, if the question turned on that alone.

The defendants, moreover, do not appear to have exerted the authority conferred on them by the statute in question, in an arbitrary or more summary manner than it authorizes, provided they have constitutionally a right under it to prevent the plaintiff from condúcting his business in the same way in which he had theretofore conducted it, and to require his materials to be removed and his premises cleansed. A formal complaint seems to have been presented to them of the character of the plaintiff's operations. The result of a personal investigation into the charge by some of the officers of such board, who were medical men, and other evidence, was presented to them, upon which they decided that the plaintiff’s business and premises were a nuisance, and they thereupon made the order complained of. After personal service of such order and the lapse of the time fixed by the statute, after service of it, for demanding a hearing, they made a final order modifying and meliorating the first. Ho proper demand to fix a time for hearing the plaintiff upon the question of executing, modifying or rescinding such order, seems to have been made on his behalf, and it became absolute except so far as it was modified. The existence of predetermined hostility or disinclination to be governed by evidence at all, charged on one of the defendants, is not established, although the declaration of perhaps some prejudice on his part against the business in question as carried on, is admitted. Ho excuse is offered for not applying for a hearing, nor is there any pretense of any inability on the part of the plaintiff to procure all the evidence he might need on such hearing. Eor any abuse by the defendants of their authority, if they act judicially, as stated in the first section of such statute, such as making the order originally without evidence, or perhaps for refusing to revoke it on overwhelming or uncontradicted evidence of its being erroneous, a writ of certiorari would afford a remedy. For refusing to fix a day for hearing of the party affected, a mandamus would lie. And for the usurpation of jurisdiction, in cases where not warranted by the statute, a writ of prohibition would furnish a correction.

It will be presently seen that the decision of this case will not require any opinion to be expressed upon the constitutional power of the legislature to delegate legislative authority to third persons, or to authorize them to destroy property, whenever in their opinion prejudicial to the community in any way, without hearing the owner of the property, or allowing him compensation for its destruction. Such questions arise more properly in the cases of orders made under the second subdivision of the fourteenth section of this statute.

An examination of the extent to which orders under that subdivision can constitutionally be enforced, has been rendered unnecessary in this case by the modification of the order as originally made by the defendant by striking out all, which required any removal of the plaintiff’s materials for making lime from the premises in question. When that becomes necessary to be examined, it may be considered a matter of grave doubt whether the legislature can constitutionally authorize any person or body, either upon their private opinion or ea? parte evidence, to destroy property even under the pretext of the public good, without either providing for a hearing before condemnation or compensation. Even in the case of a conflagration raging so as to threaten to destroy property not yet on fire, it has been deemed necessary, in order to protect public officers, authorized to blow up intermediate buildings to prevent its spread, from the burden of establishing its necessity, to provide compensation for the owners of the property destroyed. (2 R. L. 368.) The only case relied upon in our courts to sustain the doctrine, (Van Wormer v. Mayor, &c. of Albany, 15 Wend. 262; S. C. in error, 18 id. 168,) will be found on a rigid examination of it, not to sustain any such principle. From the nature of the pleadings in that case, (as they appear in the report of it in the Court of Errors,) stated by the late Chancellor Walworth, and a,s he clearly shows, the facts of the buildings destroyed being a nuisance, and the necessity of the use of means employed to abate it, were admitted on the record. The only question of fact not admitted, and which formed the subject of the trial, was whether the defendants destroyed such buildings by virtue of the ordinance under which they justified such destruction. That able judge declined to express any opinion upon any other question in the case, except those involved in the trial of that issue; but he noticed the fact, as did Chief Justice Savage in the court below, (15 Wend. 264,) that the plaintiff admitted the fact of the nuisance, when heard before the board of health, and only objected to paying the expense of removing it. Of course the mere absence of any subsequent question of the decision in that case would not sanction the doctrine alluded to ; nor does the conferring of similar powers by various statutes on boards of health, (1 R. L. 1801, R. and K. 373, §32; 2 R. L. 1813, p. 54, § 25; 1 B. S. 441, § 3,) argue any thing in favor of their constitutionality, as they may have never been exercised except in cases of admitted nuisances, which any one is authorized to abate at common law. (3 Black. Com. 6.)

But the authority and duties of the defendants as a board of health under the first subdivision- of such 14th section of the statute creating them, (N. Y. Sess. Laws, 1866, ch. 74,) differ so widely from those created under the second of such subdivisions as to justify the constitutionality of the former, even if the latter were defective. “Such first subdivision authorizes the board to enter “ any business, pursuit, matter or thing," of or belonging to any one, on their records as a nuisance, and order it specially to be abated or suspended or otherwise improved or purified ;" but not until they have taken and filed among their records what they “ shall regard as sufficient proof to authorize such declaration." It provides for a service of such order on parties interested in the business or thing declared a nuisance, and permits them to apply within three days afterwards, or at any time before the execution of such order, to the defendants or their president for the modification or suspension of such order until a hearing which they are bound to allow, (except in case of a pestilence raging,) and give such applicant “ a reasonable and fair opportunity to be heard before them,” and present facts and proofs against such “ declaration ” and the execution of such order, or in favor of its modification. They are further required to enter upon their minutes “ the facts and proofs ” received by them, their “ proceedings upon such hearing, and any other proof” they may take, “ and are thereupon empowered to rescind, modify or reaffirm ” such “ declaration or order and require execution of the first or any new or modified order to be made.” An amendment of such statute by another, passed at the same session, (N. Y. Sess, Laws, 1866, ch. 386, § 6,) gave the president, in the absence of the board, power to suspend or modify such order or its execution, and permitted such board “to change or modify any order made under such first subdivision, but not to increase its stringency where no hearing was asked for by the party affectedalthough no provision is made in the amendatory statute for serving notice of such modified order.

Such second subdivision authorizes the board to order, or cause any premises, ground, matter or thing, regarded by it as in a condition dangerous or detrimental to life or health, to be “ purified, cleaned, disinfected, altered or improved,” and any substance so either dangerous or detrimental to be removed to some proper place. It also provides for the service of such order upon one or more of the owners, occupants, lessees or tenants of the offending premises or subject, or upon one or more of those who are bound to do what such order requires to be done. But such order and service of it is only required to be made to give the party served an opportunity to do personally what is required of him, so as to prevent its being done by such board at his expense. No provision is made for any hearing of the parties affected by such order, or taking or preserving any evidence upon which the decision of such board, as to the danger or detriment of such premises or substance, is to be founded. The right of such board, therefore, to cause premises to be cleaned or offensive substances to be removed, rests entirely on the power of the legislature to give unlimited power to such a body to decide without hearing parties interested, and perhaps by inspection only, as to the necessity of purifying premises or removing offensive matter. That night I do not propose to discuss on this occasion, particularly as such powers do not involve the absolute destruction of property.

In regard, however, to the stoppage of a person’s business, or the destruction of property under the first subdivision of such section, (§ 14,) the legislature have been more careful to place the exercise of such powers within the range of judicial functions. The 31st section of the act in question, declaring all powers exercised by the board judicial, it is true, would not necessarily make them so. But if there be any room for doubt as to the mode of exercising such powers, or the interpretation of directions as to such mode, the language used in prescribing such mode is to be construed 'as requiring them to be exercised in a judicial rather than an executive or ministerial manner, and such mode of exercising them is to be made, if possible, consistent with an interpretation of the words to conform thereto. Such board being bound by the 18th section of the statute to keep records of their acts and proceedings, is, by the 14th, bound to file among them the proof which it is authorized to take, justifying a declaration that the subject of examination is a nuisance, or detrimental to life or health, upon which it is to make a provisional order for its abatement, removal or melioration. They are thus vested with the preliminary right of determining their jurisdiction for the purpose of a hearing and final adjudication, and their decision upon such jurisdiction is final if there is any evidence before them tending to sustain it. (People ex rel Bodine v. Goodwin, 5 N. Y. Rep. 568.) Such provisional order may become final by the failure of the parties interested and notified to demand a hearing. And whatever objections may be made in cases where no service of notice of the order is made, it would not apply in this case, as the plaintiff was notified. The. statute requires the execution of the order to be suspended on demand of the party notified, and a hearing to be given him upon a fair and reasonable opportunity therefor, when he is to be allowed to give such proofs as he has to offer, and the board may also introduce new proofs. Upon such hearing they may modify or rescind such order in an action at law. The board were then required to cause the facts in regard to such complaint to be investigated and the appropriate remedy applied,” This resembles greatly the trial and decision of issues in an action. If private individuals failed to call to their notice peccant employments, premises or substances, such board had a staff of accusers, consisting of ten medical inspectors, to report twice a week on such facts as had come to their knowledge relative to the purposes of such act. So that abundant means were provided for obtaining the sufficient proof which the board were to take, without leaving their office, or uttering a word themselves, of accusation. I cannot come to any other conclusion than that such a mode of accusation, or obtaining evidence in advance, with such opportunity of being heard with evidence, and such a mode of final determination was an exercise of judicial powers, and binding, unless prevented by some positive constitutional prohibition. If the compulsory attendance of witnesses for the accused, if necessary, be required to make the proceedings judicial, the board would probably be bound to give him the aid of the power, they possess under the 24th section of the statute, to procure testimony. B ut in this case there is no pretense that any testimony has been lost by that means. If it had been set up, possibly this court might have exercised an equitable j urisdiction in obtaining such testimony, and perhaps also have thereby acquired jurisdiction over the whole subject. In order to enable such board to obtain proof sufficient for them to act upon, there was no necessity of their becoming active in hunting up testimony. The 21st section of the act requires them to keep a book open for public inspection, in which complaints of a sanitary character are to be recorded, signed by the accuser with his name, in which is to be entered the name of the accused, the date and the remedy suggested. This is not very unlike a complaint;

Possibly the decision upon the hearing is not a subject of review upon certiorari. Although statutes sometimes give the courts to which such writ is returnable that power, (Niblo v. Post, 25 Wend. 280, 311; Anderson v. Prindle, 23 id. 616; Morewood v. Hollister, 6 N. Y. Rep. 309; People ex rel. Rhoades v. Humphreys, 24 Barb. 521,) although even then they are bound, if there be some evidence before the inferior tribunal, to justify their decision. (Stryker v. Bergen, 15 Wend. 490.) The same rule is applicable to a review upon a like writ of the evidence upon which the inferior tribunal has passed in assuming jurisdiction. (Ex parte Mayor of Albany, 23 Wend. 277. People ex rel. Bodine v. Goodwin, ubi sup. People v. City of Rochester, 21 Barb. 656.) There can be no pretense therefore, that jurisdiction can be usurped by the defendants, without redress, if they are mistaken in its exercise.

The main objections to the constitutionality of the exercise of power under such first subdivision are, that such proceedings violate “ the laws of the land ” required to be observed by the second section of the article of the constitution of this state, and are not “due process of law” under the sixth section of the same article. The special points in which they are supposed to deviate therefrom are six in number, as follows :

1. That the functions of accuser and judge are blended in the same body. *
2. That no process is served, or notice of the proceedings given to parties interested.
3. That the judgment precedes the trial.
4. That the accused is not confronted with witnesses against him.
5. That the testimony is not under oath, nor the ordinary rules of evidence observed.
6. That no means are afforded to the accused to compel the attendance of witnesses.

The remarks already made dispose of the first and last of these objections. Indeed, I am not aware that there is any warrant for assuming that there must' be a public prosecutor, except in cases in which the constitution requires the presentment of a grand jury in order to make a conviction legal. Prosecuting officers are the creatures of statutes, and, however expedient, are not indispensably necessary to procure the punishment of offenders. The people of the state are the accusers and “ actors ” in all cases of public offenses.

The second and third of such objections are inapplicable to the case of an order, made absolute by the default of a' party notified to move to set it aside after notice, or confirmed after a hearing upon evidence on both sides. Indeed, they are founded upon the mistaken notion that the first order is the final adjudication, instead of being a conditional order, made absolute only after a hearing, or neglect to appear after notice and demand of such hearing. The seizure of chattels in an action of claim, and delivery, or the issuing of a preliminary injunction order, attachment or order of arrest, would be equally subject to such an objection.

As to being confronted with witnesses, if that applies to the hearing, the board are bound to allow it, if their proceedings would otherwise be unconstitutional, and any irregularity in that respect could be, corrected on certiorari. If oaths are necessary to be administered to witnesses, the same rule would prevail. Although I am not prepared to say that an adjuration of a witness,, the form of which may be varied by law, and is allowed according to the conscience of the party sworn, including the simple affirmation of a member of the society of friends, is a constitutional requisition to make a trial valid.

In regard to the attendance of witnesses, what I have already said as to that cause of complaint will suffice. And I am inclined to think that it will be found, on examination, that a power to compel the attendance of witnesses for the accused will not be found to be part of the law of the land,” at least that mentioned in Magna Charta,” and was given in more recent times.

There still remains an objection to be considered, to wit,' that no trial by jury is allowed under such statute. The words of the constitution upon that point are, (art. 1, § 2,) that “ the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate forever.” The term “ case,” in such provision has been held to mean the kind of action, prosecution or proceeding, and is not confined to the subject matter. Thus, in the case of the People v. Duffy, (6 Hill, 75,) it was held that a proceeding to compel a husband to support his wife, being a mere preventive proceeding, like giving security to keep the peace, did not require a trial by jury, and that preventive remedies for similar offenses having been used before the adoption of the constitution, obtaining them was not a case ” within the meaning of the constitution in which trials by jury had been used ; although it was held that the adjudication of the magistrate on the subject of the marriage of the parties, although sufficient to compel giving security, was not conclusive. But although the judgment for the abatement of a nuisance at common low, “ quod permittat prosternere,” may have required a trial by jury, when demanded, yet courts of equity could always restrain the conducting of any business which was one, without such jury. And that is all which the order, as ■ finally modified in this case, does. Such objection, therefore, falls to the ground.

These considerations render it unnecessary to pass on the question whether, if the powers of the defendants were constitutional, any irregularity in their exercise, and irreparable injury arising therefrom, required the interposition of the restraining power of this court.

The order appealed from must be reversed, and the injunction order discharged, with $10 costs of the motion at special term, but without costs on the appeal.


source: Caselaw Access Project

author: Garvin, J.

license: Public Domain

text:
    The Meriden Britannia Company, plaintiffs and respondents, vs. Godfrey N. Zingsen, defendant and appellant.
    1. Two cotemporary written undertakings, signed by the parties, by one of which the plaintiffs promised the defendant to “ give up ” a certain claim held by the former against a third person, upon the delivery by the latter, of a certain amount of a specified kind of goods “ as per agreement," and by the other the defendant promised to-deliver to the plaintiffs, such goods “to settle" such claim are to be construed together, as constituting a purchase by the defendant of such claim, and the undertaking signed by him is not to be construed alone as a promise to pay the debt of another'within the statute of frauds, and therefore void as not expressing a consideration.
    2. The agreement by the plaintiffs to sell such claim, was a sufficient consideration for the defendant’s promise to deliver such goods, and the delivery by the latter of part of the price would "have made the sale good within the statute of frauds, without any agreement in writing.
    8. Proof of the execution of such agreements and delivery of such goods only does not render the contract proved so far a variance from the contract set out in the complaint, which was one by the plaintiffs to sell their claim against the third party in question and release Mm from all liability to them therein, as to ' entitle the defendant to a dismissal of the complaint. Such an allegation of a release from all liability to the plaintiffs is a necessary consequence of a sale by them of the claim, and is not a variance as to the consideration proved.
    (Before Robertsok, Oh. J. and GUrvih, J.)
    Heard November 15,1866 ;
    decided February 11, 1867.
    This is an appeal from a judgment entered upon the report of a referee, in favor of the plaintiffs, against the defendant.
    The complaint alleged, that on the 31st of January, 18615 L. H. Mattison owed the plaintiffs $1625 for goods, when it was agreed between the plaintiffs and the defendant, that the plaintiffs would sell the said demand to the defendant and release Mattison from all liability to the plaintiffs thereon, and the defendant Would furnish and deliver to the plaintiffs, silver plated goods, consisting of plated' forks and spoons, of " a value and at a price agreed upon, per dozen, equal to the indebtedness ; said goods to he delivered in February and March, 1861; that said debt was sold and Mattison released and discharged from liability to the plaintiffs thereon ; that Mattison assented to the arrangement, and promised to pay the debt to the defendant, that goods to the amount of $1235.97 were delivered on said agreement, between the first of March and the first of July, 1861; no other goods were delivered ; demand has been frequently made for the balance of the goods, but the defendant neglected and refused to comply with the demand and deliver said goods; that goods amounting to $440 remained due, &c.
    The answer denied all the allegations contained in the complaint, except that it admitted the defendant did deliver to the plaintiffs, goods to the amount of $1235.97 to apply upon the alleged debt due from Mattison to the plaintiffs. The defendant further alleged therein that he did deliver to and for the plaintiffs more than sufficient in amount and value to pay the debt of Mattison, and denies that $440 is due the plaintiffs. It was shown, upon the trial, and the evidence establishes, that on the 31st of January, 1861, the plaintiffs had a debt against Mattison of about $1500, which they were desirous of securing, and were pressing him for payment; that Mattison was unable to meet the demand at once, and for the purpose of securing its payment to the satisfaction of the plaintiffs, he procured the defendant to assume and agree with Mattison and his father to assume his (Mattison’s) debt to the plaintiffs, for $1000 in cash, to be paid by the father to the defendant, and the notes of Mattison for the balance, which notes and money the defendant afterwards, received in full. In pursuance of this understanding between the defendants, Mattison and his father, and for this consideration, the defendant agreed with the plaintiffs, through Wilcox, the agent, to furnish and deliver to the plaintiffs, in the months of February and March, certain plated ware at a price agreed on, to settle and purchase the debt held against L. H. Mattison. The plaintiffs agreed to “ give up ” their claim against L. H. Mattison to the defendant, as soon as he delivered to the plaintiff the amount in the wares as per agreement. These two agreements were in writing, and dated on the same day. Mattison was released by the company from all liability to them, so far as such a paper not under seal could do so. The quantity of goods delivered to the plaintiffs, under this arrangement, amounted to $1225.19. Mattison, as was agreed with the defendant, was to receive from him and ship for him the goods to the plaintiffs. A demand was made for the balance of the goods, and the defendant neglected to deliver the remainder, whereupon this action was brought to recover their ■ value, and the referee to whom the issues were referred, gave judgment for the plaintiffs therefor.

      G. Bainbridge Smith, for the appellant, defendant.
    I. The complaint is unproved in its entire scope and meaning.
    1. The complaint alleges a sale and transfer, of a debt against one L. H. Mattison, and, on such sale and transfer, a promise to pay on the part of the defendant.
    2. The evidence shows that the whole transaction was on a written contract between the parties, as follows :

      “ This is to certify that we agree to give our claim against L. H. Mattison up to Gr. N. Zingsen as soon as he has delivered to us the amount, at 70 per cent discount, in spoons and forks, as per his agreement.
    Meriden Britannia Company,
    H. C. Wilcox.
    New York, Jan’y 31, 1861.”
    “ New York, Jan’y 31, 1861.
    I agree to furnish to the Meriden Britannia Company an assortment of plated forks and spoons, per L. H. Mattison’s list, at 70 per cent discount, to settle claim held against L. H. Mattison. To be delivered in the months of February and March. [Then follows the quality.]
    G-. N. Zingsen.”
    3. The facts do not sustain the complaint; and, besides, the action could not be maintained without averring in the complaint an offer to assign the debt of Mattison, and a readiness and willingness so to do. (Lester v. Jewett, 1 Kern.
      453.) The defendant moved to dismiss the complaint on that ground.
    4. Where the complaint is unproved in its entire scope and meaning, it should be dismissed. (Cottrell v. Conklin, 4 Duer, 45. Texier v. Gouin, 5 id. 389. Burgher v. Columbian Ins. Co. 17 Barb. 274. Hempstead v. N. Y. Central R. R. 28 id. 485. Gasper v. Adams, Id. 441. Saltus v. Genin, 3 Bosw. 250, 639. Moore v. McKibbin, 33 Barb. 246. Whittaker v. Merrill, 30 id. 389. Lyon v. Blossom, A Duer, 318. Code of Proced. §§ 170,. 171.)
    II. The contract between the plaintiffs and defendant is in writing; the two papers form part of one single transaction, and embrace one undivided contract. (Rawson v. Lampman, 1 Seld. 461;) and being clear and unambiguous, the referee erred by allowing it to be varied and contradicted by parol evidence. (2 Abbot’s Dig. pr 661.)

    1. The defendant requested the referee to disregard all testimony which in any manner varied or contradicted the written contract between the parties.
    2. The referee in his third finding, found, as matter of fact, that “ a verbal agreement was made between said Mattison and the defendant, Godfrey N. Zingsen, that if. said Zingsen would settle the said debt with said plaintiffs, so that said debt could be released, the said Mattison would pay Zingsen. the amount thereof, as follows, viz : one thousand dollars in cash, and the balance in notes without indorsement.” And in the referee’s fourth finding, he finds ; “An agreement was thereupon made in writing, between the said plaintiffs and said defendant, as follows : ” and then sets it forth ; being the two papers before referred to.
    3. The parol evidence was objected tó, and allowed under the defendant’s objection and exception.
    4. The parol evidence and finding of the referee, was untrue in point of fact. The father of Mattison was not called as a witness. The notes spoken of by Mattison were produced by him, and Mattison- thought they applied to the Meriden account. He would not be positive. Zingsen swore positively that they had no reference to that matter. The referee refused to allow the defendant rto show that Mattison was indebted before and since the 31st of January, 1861. The notes were dated on the 14th March, 1861, and it is not pretended they were antedated. The fifth finding is equally without foundation, in respect to the notes : and particularly as to -the time they were given. Whether the parol testimony was true or false, it should not have been admitted. A written ■ instrument can no more be varied or contradicted in respect to its legal effect, than it can he in respect to its express terms. (2 Abb. Dig. p. 661. Thompson v. Ketcham, 8 John. 189. Renard v. Sampson, 2 Duer, 285.) Nor can contemporaneous parol stipulations, contradicting or varying the legal effect of a written contract in evidence. (2 Abb. Dig. 661. Johnson v. McIntosh, 31 Barb. 267.) The parol evidence, was intended to be and was admitted by thé referee for the sole purpose and object of not only varying, but contradicting the written contract between the parties.
    1. The contract states that when the defendant shall have paid the'plaintiff the amount of Mattison’s debt, that debt shall be given up to the defendant.
    2. The complaint alleges, in consideration that -the plaintiffs would sell said demand to the defendant and release Mattison, the defendant agreed to furnish certain goqds therein mentioned ; and that the plaintiffs, then and there sold and assigned said demand against Mattison to the defendant.
    3. The parol evidence was to deprive the defendant of the very debt which he bought, and the sole consideration expressed in the contract for which he agreed to deliver' the goods to the plaintiffs. ■ ■
    It is -submitted that the foregoing proposition, of law is incontrovertible, and that the report of the referee must be set aside.
    III. The written contract between the parties falls within the statute of frauds, as it expresses no consideration.
    1; The defendant agrees to furnish to the plaintiffs- certain merchandise to settle the claim they have against one Mattison, and the plaintiffs, without consideration expressed in the contract, agree that as soon as the defendant shall have delivered the amount of such debt in merchandise, they will give up to him the debt against Mattison. This is the whole agreement.
    2. The debt against Mattison was not by the contract extinguished or impaired. There is no consideration of benefit nor hqrm, nor any shift of the indebtedness. (Kingsley v. Balcome, 4 Barb. 131. Stern v. Drinker, 2 E. D. Smith, 401. Fay v. Jones, 18 Barb. 340.)
    3. The statute declares that the promise to pay the debt of a third person must not only be in writing, but is absolutely void unless it expresses a consideration. (2 R. S. 135, § 2.) Mallory v. Gillett, 21 N. Y. Rep. 412.)

      (a.) The modification of the statute by the act of 1863, (see Sess. Laws, 1863, p. 802,) cannot affect the contract between the plaintiffs and defendant made in 1861. (Berley v. Rampacher, 5 Duer, 183. Calkins v. Collins, 3 Barb. 305.)

      (b.) Nor does it affect the question of the defendant’s liability that he paid part, as alleged, of Mattison’s debt to the plaintiffs. (Baldwin v. Palmer, 10 N. Y. Rep. 232.)
    4. Where the statute of frauds requires the consideration to be expressed, the omission to state it cannot be supplied by parol. (Brewster v. Silence, 8 N. Y. Rep. 207. Draper v. Snow, 20 id. 331. Hall v. Farmer, 5 Denio, 484. S. C. affirmed, 2 N. Y. Rep. 553.)
    5. The referee’s opinion is founded upon a false basis. He allows parol evidence to vary and contradict the written contract, and upon that evidence "reasons the case in favor of the plaintiffs.
    IY, If the contract in writing between the plaintiffs and defendant is to be regarded at all, the action cannot be maintained, upon another ground. The plaintiffs agreed, so soon as the defendant paid the amount of Mattison’s debt in merchandise, it was to be given up to him. The plaintiffs allege in their complaint it was an absolute sale and assignment of the debt against Mattison ; but its obvious purport is a sale and transfer of the Mattison debt so soon as the defendant shall have paid for it. In such case, the plaintiffs must not only aver in their complaint that they had assigned the debt, or offered to assign it, and of their being ready and willing to assign, but must prove that they had assigned or offered to assign it. The complaint contains no such allegation, and there was no proof offered in respect to it. (Dunham v. Pettee, 8 N. Y. Rep. 508. Lester v. Jewett, 1 Kern. 453. Payne v. Lansing, 2 Wend. 525. Johnson v. Wygant, 11 id. 48. Kelley v. Upton, 5 Duer, 336.)
    V. If the plaintiffs released Mattison from the debt, so that they could not perform their written contract with the defendant, then the defendant was entitled to recover the whole amount he actually paid under the contract.
    VI. It is submitted that the judgment should be reversed.

      W. Gleason, for the respondent.
    I. The referee’s findings of fact are abundantly sustained by the evidence. The testimony of George R. Curtis shows that Mattison was indebted to the plaintiffs, on the 31st of January, 1861, in the sum of $1580.85. It is admitted that the defendant executed and delivered to the plaintiffs the agreement contained in the case. The plaintiffs, at the same time, released Mattison from his liability to them. Mattison agreed to pay the defendant $1000 cash,- and give his notes for the balance. The $1000 cash was paid. The notes were given to the defendant and paid by Mattison. The defendant delivered goods to the plaintiffs of the value of $1225.19, and no more. Demand was made for the balance, November 21, 1861. Upon these facts the plaintiffs were clearly entitled to recover the amount reported by the referee.
    II. The pretense of the defendant that Mattison acted as the agent of the plaintiffs, in receiving and shipping the goods, and that the defendant delivered to him, as such agent, goods sufficient to pay the debt, is entirely unsupported by the facts. The goods were sent to Mattison for the convenience of the defendant. The defendant instructed Mattison, in each instance, what goods to send to the plaintiffs.
    III. The promise of the defendant to pay the debt due from Mattison to the plaintiffs, was not void by the statute of frauds. There was no necessity for reducing the agreement to writing. The transaction, in brief, was this : Mattison, the original debtor of the plaintiffs, agreed to pay the defendant $1580.07 cash, in consideration of the defendant’s agreement to pay the plaintiffs the same amount in goods of his own manufacture. This agreement is clearly valid, within the cases of Mallory v. Gillett, (21 N. Y. Rep. 412,) and Skelton v. Brewster, (8 John. 376.), Mattison placed funds in the hands of the defendant to pay the debt, in consideration of which the defendant agreed to pay it. Such a promise was never held to be within the statute of frauds. The plaintiffs said to the defendant, in substance: “You shall have our claim against Mattison if you will deliver to us goods, at certain fixed prices, .to the amount of the debt.”
    IV. The referee committed no error in receiving or rejecting the evidence. But four objections were made during the trial, and the correctness of the referee’s rulings upon them is so obvious as to require no comment. The only question upon which there was any material conflict of testimony was, whether -the defendant had delivered sufficient goods to the plaintiffs to pay the debt. This branch of the defense rests entirely upon the testimony of the defendant; and, besides being contradicted by Mattison, Wilcox and Curtis, he fails to prove the delivery of more than $1200 worth of goods, after deducting the 70 per cent from Mattison’s list of prices.
    The referee’s findings of fact are sustained by the evidence, and are conclusive.
   By the Court,

Garvin, J.

It is contended, on the part of the defendant, that this arrangement with the plaintiffs is within the statute of frauds, and, therefore, void, and cannot be enforced. It cannot be disputed that the proof shows a new and distinct consideration was received by the defendant from Mattison, in money and notes, and a customer for his wares, at his own price, bringing the case within the principles laid down in the case of Mallory v. Gillett, (21 N. Y. Rep. 412,) clearly excluding a case, with such a consideration, from the effect of the statute. But it is contended that no consideration of any kind was expressed in the paper subscribed by the defendant, nor was any such consideration averred in the complaint. Upon these grounds, and also that the complaint contains a different contract from the one proved, and that the complaint is unproved in its entire scope and meaning, the defendant moved to dismiss the complaint.

It is quite clear that no consideration is stated in the agreement actually subscribed by the defendant; but, if we are to take the two papers, executed on the same day, as one agreement, and they are to be construed together, then it is plain that the plaintiffs were to give up their claim against L. H. Mattison to the defendant, when he delivered them the amount in certain wares described therein. It is, perhaps, fair to regard them as one contract, and this, for most purposes, is the legal rule. (Rawson v. Lampman, 5 N. Y. Rep. 461.)

The consideration moving from the father of Mattison, (the primary debtor,) to the defendant, cannot be relied upon to sustain the complaint as a consideration, within the statute of frauds, for the written contract, for two reasons : 1. That no new consideration can be imported into the agreement to sustain it; and 2. That it varies from the consideration set out in the complaint. If no consideration is expressed in a written promise, none can be supplied by parol, for the statute of frauds requires it to be expressed. (Brewster v. Silence, 8 N. Y. Rep. 207.) This new and outside consideration can-, not be inserted in the paper subscribed by the defendant, for no consideration is expressed therein ; nor can it be added to the consideration contained in the paper subscribed by the plaintiffs. In either view of the case, the consideration cannot, in any way, be resorted to to uphold the written agreement between the parties, if it is to be regarded as a promise to answer for the debt of Mattison, and, if so, neither can it be resorted to to uphold the complaint.

But there is another view of the case to be taken, which is, that the action in this case was not upon a promise, by the defendant, to pay Mattison's debt, but a purchase of the debt of Mattison from the plaintiff's by the defendant. If the defendant, in fact, bought the debt against Mattison, then the statute of frauds, (sub. 2 of § 2,) has no application to the case. Though the effect may ultimately be to pay the debt of another, the contract made created a new debt—the defendant’s own—which he was bound to pay. If not paid, it could be enforced against him by action, as well as if the consideration, instead of being Mattison’s debt, had been any other personal property, sold by the plaintiffs to him, to be delivered'on paying therefor at a future day.

The complaint proceeds on a contract of sale to the defendant of the debt against Mattison, and a release of Mattison from all liability to the plaintiffs thereon, and avers a promise by the defendant to pay in plated ware. The evidence discloses one writing signed by the company, promising to “ give up’’ the claim to the defendant on payment of the amount, and another signed by the defendant, in which he agreed to deliver within a certain time the goods in, payment to settle the claim against Mattison. The defendant did deliver goods in pursuance of, and upon, the contract, to the plaintiffs, to the amount of $1225.19. These facts are proved, and substantially conceded. It is also in proof that a demand was made for the balance of the goods. Was this a purchase by the defendant of the claim held by the plaintiff against Mattison ?' If so, the plaintiffs’ cause of action is made out. It must be conceded that any release growing out of such writing not being under seal, and without payment of the debt, was worthless and of no effect. It may, therefore, be regarded as out of the case, and is not necessary to sustain the action, provided the transaction between the parties was a sale of the debt to the defendant. It will be observed that the writing signed by the defendant, defines the object of the delivery of goods to the plaintiffs to be to settle a claim against L. H. Mattison ; and the other paper signed by the plaintiffs specifies what the plaintiffs are to do with the debt, in these terms : “We agree to give our claim against L. H. Mattison up to (the defendant) as soon as he has delivered to us the amount in spoons and forks as per his agreementnot that the plaintiffs will satisfy, receipt, or extinguish Mattison’s claim, but will give it up to the defendant, who can hold it as a voucher or evidence of Mattison’s indebtedness to the defendant, or, in case he does not pay, enforce it against him. I think the fair interpretation of this transaction is that the defendant agreed to buy this demand, and for it agreed to deliver merchandise to the amount of Mattison’s debt. It is true the word sell is not used, but the defendant does in effect sell by agreeing to deliver, at a certain time, and does deliver, a part of the property, which is accepted by the plaintiffs, and does in effect buy the debt of Mattison. This view of the case brings it within the complaint, without doing any violence to the evidence. If there was a sale of the debt to the defendant, that was a sufficient consideration for the promise, without the release of the debt to Mattison, to sustain the the action. One valid consideration is as good as two. The omission to prove both is not such a variance as to defeat the action.

Again, the transaction was in writing and subscribed by the parties and, as is contended for by the defendant, is one undivided contract, and made valid by the statute as reduced to writing. (2 R. S. 140, § 3, sub. 1.) There was a delivery and acceptance. (2 R. S. 140, § 3, sub. 2.) It was not necessary the delivery and acceptance should have been at the time the contract was made. (McKnight v. Dunlop, 1 Seld. 537.) It was sufficient if any part of the property was delivered and accepted in pursuance of the contract, even if the contract had been verbal, to have made the contract valid within the statute. It cannot be successfully contended that it was necessary to be given up to the defendant when he delivered the goods. This is entirely consistent with the complaint, which is that the plaintiffs would sell, and did sell and assign the demand against Mattison ; but there is no averment that they delivered. It is objected that much of the evidence received by the referee, contradicted the written agreement between the parties. I cannot see how. The evidence principally shows the consideration that moved the defendant to action, and induced him to purchase this demand, and that long before this action was brought, he -received the whole amount he agreed to pay for this demand in money, from the Mattisons, father and son. The one gave him $1000 in cash, and the other paid him the notes he gave for the balance.

The judgment should be affirmed, with costs.