author: O’Brien, J.:

text:
    In the Matter of the Application of Theodor G. Lurman, Appellant, for a Peremptory Writ of Mandamus Directed to The Coffee Exchange of the City of New York, Respondent.

      Coffee Exchange — expulsion of a member because of a refusal to pay for adulterated coffee• — the question as to the alleged adulteration is one to be decided by the Exchange.
    Upon an application made by one Theodor G..Lurman for a peremptory mandamus compelling the Coffee Exchange of New York to restore him to full privileges as a member thereof, the following facts appeared : Lurman agreed to purchase coffee of a certain grade from W. H. Crossman & Bro., under a contract which stipulated that the coffee should bo graded by Mackey & Small, and that if tlieir grading were unsatisfactory to Lurman ho should appoint a grader, and, in the event of his average grading differing from that first made, the two graders should name a third who should act as arbitrator; and that the average grading named by him should be accepted as the basis for the sale price.
    Mackey & Small declared the coffee to be according to contract, but the vendee asserting that it w-as adulterated, and, therefore, not lawful to be dealt in, refused to appoint a grader, and appealed to the Exchange, whereupon adjudicators were appointed, one on each side, and these two selected a third, before whom Lurman claimed that the coffee was artificially colored.
    The decision of the adjudicators was not unanimous, the one appointed by Lurman declaring that the coffee was artificially colored, while the other two refused to examine the coffee, and decided that even if it were colored this was not a sufficient ground for Lurman’s refusal to have it graded; and that they had no jurisdiction of the grade, or of the condition of the coffee.
    Lurman appealed to the board of managers of the Exchange, stating that the adjudicators had refused to examine his objections, but the board decided the appeal against, him. Subsequently Lurman and W. H. Crossman & Bro. each appointed a grader, and, these being unable to agree, chose a third as arbitrator, a majority of whom decided not that the coffee was free from adulteration, but that it was of the grade prescribed by the contract.
    No appeal was taken by Lurman from this decision, there being no provision in the by-laws of the Exchange for such an appeal.
    Lurman still refusing to accept the coffee, W. H. Crossman & Bro. lodged a complaint with Hie adjudication committee of the Exchange, before which Lurmam appeared and filed a reply, in which'ho made the same objections, offered to make proof of them, and to show that the coffee was adulterated within the meaning of section 41, chapter 661 of the Laws of 1893. It was admitted that portions of the coffee were colored, but the committee held that as the arbitrators had decided that the coffee was fit to be tendered, the committee could not reopen the question of grade, quality or condition, and the cross-complaint made by Lurman was dismissed.

      The adjudication, committee made a report to the board of managers of the Exchange which appointed a hearing of the matter, but neither on this hearing nor on the hearing before the adjudicators was there any inquiry made as to the alleged adulteration, the only question considered being whether the coffee was of the grade required by the contract. The Exchange decided that Lunnan had violated its rules and by-laws, and that unless he settled with W. II. Grossman & Bro. before a certain date he should he suspended from membership. Upon his refusal to settle ho was suspended.

      Held, that, assuming that the coffee was up to grade, Lurman was still entitled to a decision, on the merits, of the question whether the coffee was adulterated; That, if it were adulterated within the meaning of section 41 of chapter 661 of the Laws of 1893, it was an article in which it was unlawful to deal, no matter what its grade might be;
    That, in view of the statute, the question of adulteration could not be delegated by the Exchange to graders;
    That the Exchange could not deprive of membership a person who refused to do an act, upon the ground of its illegality, without an investigation and a decision upon the question whether the position taken by the member was justifiable.
    Appeal by tbe petitioner, Tlieodor GL Lurman, from an order of tlie Supreme Court, made at tbe New York Special Term and entered in the office of the clerk of the comity of New York on the lltli day of July, 1895, denying his application for a peremptory writ of mandamus directed to The Coffee Exchange of the city of New York commanding it to reinstate him in his full privileges as a member thereof.
    In July, 1894, the petitioner’s firm entered into a contract with Messrs. W. II. Grossman & Bro. for the purchase of coffee of a cer tain average grade. The contract provided that the coffee should ho graded by Mackey & Small; that should their grading be unsatisfactory to tbe buyer the latter should appoint a grader, and, in the event of his average grading differing from that first submitted to the buyer, the two graders should name a third, who should act as arbitrator, and that the average grading named by him should be accepted by seller and buyer as tbe basis for tlie sale price. Both the petitioner and the members of the firm of Crossman & Bro. are members of tlie Coffee Exchange of the city of New York. By its charter it is provided that the purpose of tlie exchange shall he, among other things, “ to adjust controversies between its members ; to inculcate and establish just and equitable principles in the trade; to establish and maintain uniformity in its rules, regulations and usages; to adopt standards of classification.” Under tlie rules of the Exchange a tender of coffee is not good if the fact is shown that the coffee has been treated or manipulated with the result of concealing defects or of making it appear to be better or of greater value than it really is. This contract was not made within or upon the Exchange.
    On the arrival of the coffee it was graded by Mackey & Small and declared by them to accord with the contract. When it was tendered the vendees refused to accept' it on the ground that it was adulterated, and, therefore, not lawful tó be dealt in, and for the same reason they declined to appoint a grader, and appealed to the exchange to have this controversy determined under the rules of that body by adjudication. Adjudicators, members of the Exchange, were appointed, one by each side, and these two selected a third. The vendees claimed before them that the coffee was artificially colored, and that that fact of itself was sufficient ground for rejection of the coffee. The adjudicators were not unanimous in their decision. The one chosen by the petitioner stated that he had a chemist’s analysis of the coffee showing that it was artificially colored, but the other two refused to examine it, and decided that, even if it was adulterated, that fact did not justify a refusal to submit the coffee to -grading, and that they had no jurisdiction of the question of the grade or condition of the coffee! From this decision the petitioner appealed to the board of managers of the Exchange, making the same claims in regard to adulteration as before the adjudicators, and stating that the majority of the adjudicators had declined to consider them. A ballot taken by the board on the appeal resulted in a tie and the appeal was declared lost.
    The petitioner’s firm and Grossman. & Bro. thereupon each appointed a grader, who, being unable to agree in all respects, chose a third man as arbitrator. .The petitioner swears that the grader chosen by his firm refused to grade the adulterated coffee. The other grader and the arbitrator say that all three agreed as to the condition of some of the coffee, but neither of them says whether the coffee as to which there was a dispute was or was not adulterated. They both declare, in substance, that no evidence was produced before them as to the intent with which the coloring had been •effected, and that its effect was not to make the coffee appear to them better or of greater value than it really was; and one of them says he submitted a portion of it to a chemist, who reported to him orally, that it contained nothing deleterious. Crossman & Bro.’s grader and the arbitrator accordingly decided, not that the coffee was free from adulteration, but that it was of the grade prescribed in the contract. No appeal was taken from this decision to the Exchange, and it appears that if one had been taken it would not have been considered, the by-laws making no provision for such an appeal, and an appeal in a similar case, with respect to another portion of the same shipment, having been refused.
    As the petitioner’s firm still refused to accept delivery Crossman & Bro. lodged a complaint agaiust them with the adjudication committee of the Exchange. The petitioner appeared before this committee and filed a reply on behalf of his firm, making the same claims as they had theretofore made and offering proof by letter and telegram from their grader, and sworn certificate of chemical analysis, to show that the coffee was artificially colored or painted ; and also offering to prove by witnesses, unless the fact should be admitted on the record, that the coffees objected to were adulterated within the meaning of the statute, and his statement is uncontrovertcd, that “it was admitted by Mr. George W. Crossman, who appeared on behalf of his said firm, that portions of the coffee were polished and colored.” It further appears that the official record of the proceedings of the adjudication committee states that “ while the graders admitted that the coffee in question is colored, they nevertheless declared that it was a good delivery under the contract.” The committee decided that, as there was no dispute that the grade arbitrators had held that the coffee tendered was a valid fulfillment of the contract, they could not reopen the question of grade, quality or condition, and that the vendees in not receiving and paying for the coffee (portions of which the vendors had admitted before them were polished and colored) had violated the by-laws of the Exchange, and the complaint of the vendors was unanimously sustained.
    On the same day that Grossman & Bro.’s complaint was presented, the petitioner also presented complaints against Grossman & Bro. and others, covering this entire matter, and with them a written statement in relation thereto, together with a copy of the applicable portions of chapter 661 of the Laws of 1893 and of the Penal Code, all of which complaints were dismissed.
    The adjudication committee made their report to the board of managers of the Exchange with recommendations and suggestions, and a hearing before the latter board was appointed. The petitioner and his firm, who still refused to recei”e the' goods, did not personally attend, but were allowed instead to submit the same written statement which they had laid before the adjudication committee. On behalf of Crossman & Bro. a copy of a report of chemists and certificate of analysis was presented-. The report states that the “ analysis was directed especially to ascertain whether or not the eolfee had been artificially colored with any injurious coloring material. You will note that we find no such adulterant present.” And the certificate of analysis says : “We * * * are unable to find any deleterious foreign matter present, either mineral or. organic. We have to-report that the coffee is free from any such adulteration.” The president of the Exchange in his affidavit says that the hearings before the board of managers and the adjudication committee were not hearings upon the ultimate controversy as to the alleged adulteration of the coffee. The decision of the board of managers was “that Mr. Theo. G. Lurman be and hereby is censured by this Board for having violated the by-laws and rules of this Exchange, and that unless he settles with Messrs. W. LI. Grossman & Bro. in full before twelve m. on Friday, the 19th inst., Mr. Theodor G. Lurman shall stand suspended from all the privileges of the Exchange for the period of one year.”
    Against this decision the petitioner presented a protest in writing, going over the whole ground, and stating that for any pecuniary loss which the firm might suffer by reason thereof they would hold the president and board of managers responsible. Thereafter a further resolution was adopted by said board extending the time for the petitioner to accept and pay for the goods under pain of suspension, to Monday, October 22, 1894, and as he has ever since refused to receive and accept the goods, he has remained from that time suspended from said Exchange.

      Charles Stewart Davison, for the appellant.

      Edward M. Shepard, for the respondent.
   O’Brien, J.:

From the outset of the controversy which resulted in the suspension of the petitioner, he consistently took the position that he could not be required to accept a delivery of the coffee because it was artificially colored or adulterated. If this position could be maintained, then, notwithstanding any by-law or rule of the Exchange to the contrary, he could not be forced to accept a delivery of such coffees, for the reason that the trading in such contravenes the express statute of this’ State (Chap. 661 of the Laws of 1893, § él), which provides: “No person shall within the State * * * have, sell or offer for sale any adulterated food or drug. An article shall be deemed to.be adulterated within the meaning of this act * * * in the case of food * * * if it be colored or coated or polished or powdered, whereby damage is concealed, or it is made to appear better than it really is, or of greater value.”

Although the Exchange, through its various committees, as shown, was appealed to, and though graders were appointed pursuant to the terms of the contract, it is insisted by the petitioner that this claim was never considered or heard upon the merits, the position taken by the Exchange being that the contract between the parties called for a grading by arbitration, and that such graders having decided that the coffee tendered was up to the grade fixed by the contract, the petitioner should accept and pay for the coffee The petitioner appealed originally to the Exchange; they refused to consider the question of whether the coffee was adulterated or not, and compelled the petitioner to name a grader, and thereafter persisted in refusing to make any examination of the question of fact as to the adulteration on its merits, taking the stand that they would not review the original decision of the graders. As contended by the petitioner, therefore, the practical result is, that the vendeefe named a grader under compulsion; that they have attempted by every method of procedure open under the by-laws of the Exchange, to get a review of the decision of the graders, but that they have failed ; and that this failure has been in the face of the uncontroverted fact of artificial coloration.

If we assume, as did the Exchange, that the coffee was up to grade, the question remains whether or not the petitioner was entitled to have a determination on the merits upon his claim that the coffee was adulterated ; and if he was entitled to such a hearing upon the merits, whether it was extended or had, in any of the methods of procedure adopted.

• We think it requires a mere reference to the statute quoted from to sustain the proposition that neither the Exchange nor its members could engage in trading in adulterated coffee, and that such coffee, though it might be equal to the grade of that called for by a contract, could not be made the subject of a lawful delivery. This is but another way of stating that the penal statutes of the State cannot be disregarded either by individuals or corporations. That this coffee or some portion of it was colored is conceded by all who examined it, but whether this was a natural or artificial coloring underlies the question as to whether it was adulterated. If a suit had been brought after tender against the vendees to recover damages for refusal to accept, it would have been a good defense, if proven, to show that the coffee tendered was adulterated. If, instead of suing, a vendor sets in motion the machinery of an Exchange, and the question whether one of its members has made a tender of goods which it is unlawful to trade in is submitted to them, there must in such exchange be some hearing on the merits at some point, before a person is deprived of rights within a private corporation to which jyrima facie he is entitled. Nor do we think that such Exchange could relegate tlie determination of such a question to a lay tribunal called graders, and because of their report that the goods are not unlawful, refuse to give one of its members the benefit of a review or a hearing on the merits before depriving him of his membership.

We are thus to determine the second question suggested as to whether there was a hearing, either by the graders or by any committee of the Exchange, or by the Exchange itself, upon the merits as to whether this coffee was or was not adulterated. We do not think it is claimed that before any committee of the Exchange or in any of the proceedings that were taken by that body the merits of the controversy as to the adulteration were inquired into, the whole machinery of the Exchange being seemingly brought to support the proposition that it would allow no investigation of any kind of an official character upon the question of fact as to whether the coffees tendered to the petitioner, for his refusal to receive which he was suspended, were or were not, as alleged by him, adulterated — in other words, were or were not goods contravening the express statute of the State. As shown by the affidavit of the superintendent of the Exchange, the adjudicators did not consider any evidence of the unlawful coloring of the coffee, “ because it was .expressly provided by the contract that the question of the grade of coffee should be considered by another tribunal.” -It will thus be seen that the Exchange begged and overlooked the real question, and because the graders had decided that the coffee was up to grade they refused to enter upon an examination of the question as to whether it was or was not adulterated, or to assume the obligation and responsibility which rested upon it or its board of managers of determining whether one of their members was right in refusing to do what the law says he should not do, viz., trade in adulterated coffees. Throughout, the Exchange and its different committees and managers place themselves upon the technical regularity of 'the proceedings which remitted to the persons who had the right to pass upon the grade the question whether the coffees tendered were coffees which the petitioner should receive under his contract ¡ and upon their conclusion that the coffee was up to grade, the Exchange set in motion its whole machinery, even to suspending the jjetitioner, in order to enforce the decision thus made by such outside tribunal.

In this connection it must not be overlooked that, apart from the money involved, the petitioner had at stake his membership in the exchange, and because he would not give up an amount of money which, if he were right, he could not legally be required to do, he was, without any hearing by the Exchange itself, deprived of his membership. Thinking as we do, that, regardless of what may have been done by the graders, the Exchange could not deprive one of its members of his membership for refusing to do what he claimed to be an unlawful act without inquiry, investigation and decision as to whether this claim was justified, this of itself would be sufficient to warrant a reversal of the. order and a reinstatement of the member and a remission of the whole question again to the Exchange, to the end that the member should have a hearing'upon the merits.

It is doubtful, to say the least, if even the graders, upon whose decision so much reliance was placed by the Exchange, ever considered the petitioner’s claim as to adulteration, they seemingly being as anxious to avoid this question as the Exchange itself, and as shown hy their affidavits they confined their attention to determining whether or not, the coffee was of was not up to grade. Just what they considered to be their duty and their view of the controversy, and what questions they considered, are well set forth in the affidavit of one of the graders, who states: “ In grading coffee, the graders and grade arbitrators consider the grade, quality and condition of the coffee. I'f the coffee contain black beans or imperfect beans, an allowance for such is made; so, if the coffee contain stones or sticks or foreign substauce . of any kind, a proper allowance for that defect is made; so, if there be .any foreign substance adhering to or contained in the beaus of coffee, whether coloring it or not, or if it appear that the coffee has been manipulated or treated in any wajq that is an element which the graders and grade arbitrators must consider. Indeed, it is the duty of the (graders and grade arbitrators to consider every element of grade, quality or condition.” It will thus be seen that they were giving little or no attention to the'question of whether the coffee was adulterated, and were confining their attention, as they deemed it their duty to do, to a consideration of whether it was or was not up to grade.

That this particular lot had coloring matter upon it is conceded by all who saw the coffee, thus raising at least a fair presumption that the claim advanced hy the petitioner was based upon some foundation and was made in apparent good faith. Notwithstanding this, the record shows that the graders and the Exchange were seemingly fearful of the issue and studiously avoided ever giving a hearing on the merits to the claim advanced, and devoted their time to a consideration of the question as to whether the tender of the coffees was according to the contract, and regardless of whether it was adulterated or not, and as to whether it was unlawful or not, and the Exchange endeavored, by the strongest means within its power, by the act of suspension, to compel the petitioner to do what, if his claim is right, would he a criminal act and subject him to the penalties prescribed by the statute. It is unnecessary to say that this the Exchange has no power to do, because it requires no array of legal authorities to support the proposition that, neither by private contract nor by the by-laws of any Exchange, can the laws of a State be abrogated or disregarded.

We think, upon an examination of the entire record, that the petitioner is entitled to a hearing upon the merits, which he has never obtained, and to that end, that he should be restored to his membership, and that then the whole subject should be referred to the Exchange, who should in some appropriate manner, before suspending or expelling the petitioner, give him a hearing upon the merits of his claim to which by law he is entitled.

Order reversed accordingly, with costs and disbursements.

Van Brunt, P. J., and Parker, J., concurred.

Order reversed, with costs and disbursements.'


source: Caselaw Access Project

author: O’Brien, J.: Yan Brunt, P. J.

license: Public Domain

text:
    In the Matter of the Application of The New York and Long Island Bridge Company, Respondent, against Patrick Skelly, Defendant, and Lenox Smith, Appellant, Relating to Acquiring Title to Certain Real Property.

      Neto York and Long Island Bridge Go. has a right to condemn lands for bridge purposes• — constitutionality of the acts of incorporation, waiver of forfeiture cmd conferring increased %lowers■ — legislative vote required — evidence thereof.

    Upon a trial lmd in proceedings taken by the New York and Long Island Bridge Company to condemn certain lands for the purpose of constructing a bridge over the East river, it appeared that the company was a corporation created by chapter 395 of the Laws of 1867, as amended by chapter 437 of the Laws of 1871; chapter 426 of the Laws of 1879; chapter 392 of the Laws of 1885; chapter 411 of the Laws of 1892, and chapter 212 of the Laws of 1894.
    A proceeding was taken in 1889 to condemn certain lands on Blackwell’s Island for the purposes of the company .and was dismissed on the ground that the corporation had failed to commence the construction of the bridge and to “ contract for the entire structure ” within two years from May 30, 1879, as provided for in the act of 1879, and that, because thereof, its charter was forfeited (under the conditions of the act of 1867 which attached themselves to the provisions of the act of 1879) when chapter 392 of the Laws of 1885 was passed; and on the ground that, although the Legislature could waive the forfeiture, it could not, as was attempted to be done in the act of 1885, under the guise of waiving the forfeiture, grant to the corporation the new right of completing the bridge for railway travel, since the right to lay down railway tracks, implied thereby, could not, under the State Constitution, be conferred by a private or local bill.

      This being the legal status oí the matter, the Legislature passed the act of 1892, which, among other things, provided that the bridge should be “ so constructed as to provide for the accommodation and transportation of passengers and vehicles of every description, for the transportation of freight, and for such other-purposes, and in such manner as shall in the judgment of the said company seem most desirable.” This act also required that the bridge should commence within one mile of the Grand Central Depot in New York city; and it gave tlie corporation power to build a northern arm ‘ ‘ either north or south of the Harlem river, with full authority to the said company to locate and build any other bridges necessary to such approach or approaches.” It further required that the bridge construction should be commenced prior to March 3, 1893.
    The act of 1894 added a new section to the act of 1892 and declared that nothing-in the act of 1894 should be construed as authorizing the laying- of railroad tracks in a street.
    By a general law (Chap. 225 of the Laws of 1893) the right to lay tracks and to operate a railway was conferred upon any company incorporated for the purpose of constructing a bridge connecting any city of more than 1,000,000 of inhabitants with any other city in this State.
    It further appeared, that in 1887 the Congress of the Uuited States passed an act authorizing the construction of tlie bridge, and that on March 14, 1894, it passed a further act modifying the requirement of tlie first act relative to the height of the bridge.
    The corporation, claiming under these laws tlie present right to build the bridge and lay down and operate a railway thereon, commenced a proceeding for tlie purpose of acquiring the title to certain land, in which a referee was appointed who found that the construction of the bridge was commenced in due season, that is to say, prior to March 3, 1893.

      Held, that under the statutes cited the corporation was still in existence and had a right to condemn lands which were necessary to its purposes. (Per O’Brien, J.; Yan Brunt, P. X, dissenting.)

      Semble, that tlie provisions of chapter 411 of the Laws of 1892, so far as it authorized indefinite lateral extensions, including bridges over the Harlem river, were in violation of section 16 of article 3 of the Constitution, as such matters were not embraced within its title; but that the whole act was not rendered void by the existence of these provisions therein. (Per O’Brien, J.)
    Whether a grant of a right to use the land under water in the East river for a bridge required a two-tliirds vote of the Legislature, considered.
    Eight of the court to consider other evidence than the certificates attached to the original bill, in deciding- whether an act received the required vote, considered.
    Appeal by tlie defendant, Lenox Smith, from a judgment of condemnation and an order appointing commissioners of appraisal, entered in tlie office of tlie clerk of tlie comity of New York on the 29th day of April, 1895, upon the decision of the court rendered after a trial at tlie New York Special Term.

      De Laneey Nicoll and Noel Gale, for the appellant.

      Julien T. Dmies and Charles F. Stone, for tlie respondent.
   O’Brien, J.:

Tlie order appealed from by' the defendant Smith was entered in this condemnation proceeding upon tlie decision of a referee in favor of the plaintiff petitioner, made upon the interposition of an answer by the defendant Smith, the other defendant, Skelly, having failed to answer.

The premises owned by the appiellant, which in this proceeding it is sought to appropriate, are on tlie easterly side of Third avenue, fifty feet north of Sixty-fourth street. The petition alleges the corporate creation and existence of petitioner, tlie approval of its plans by the Secretary of War under the act of Congress of March 3,1887 (24 U. S. Stat. at Large, 468), its object, viz., the construction and maintenance of a bridge over the East river between New York city and Long Island City, the necessity of the acquisition and use of appellant’s property for a terminal station of the railroad tracks, and that “ the preliminary steps required by law have been taken to entitle it to institute this piroceeding.” As defenses the answer alleges, first, a forfeiture of petitioner’s franchises by non-user; second, a forfeiture for failure to comply With tlie piro visions of the various acts of the Legislature ; third, a failure to compily with the act of Congress giving the right to construct the bridge as to the time of commencing work; fov/rth, that the appellant’s piremises were not necessary for the construction or suppiort of the bridge which the petitioner was authorized to build; and, fifth, that the petitioner is building- a bridge for railroad traffic without legal authority.

As shown by the petition, tlie bridge compiany is a corporation created by and existing under and by virtue of acts of the Legislature of the State of New York, being chapter 395 of the Laws of' 1867, and the acts amendatory thereof and supplemental thereto, namely, chapiter 437 of the Laws of 1871, chapiter 426 of the Laws of 1879, chapter 392 of the Laws of 1885, chapiter 411 of the Laws of 1892, and chapiter 212 of the Laws of 1894. In 1889 the company instituted condemnation proceedings to take certain lands of the city on Blackwell’s Island for its piurposes. The city defended, and the proceedings were dismissed at Spiecial Term, on tlie ground that the act of 1885 attempted to confer the power to lay down railroad tracks in violation of section 18 of article 3 of the Constitution, and that the grant'was, therefore, void. Upon appeal to this court that view was sustained, and the order dismissing the proceedings affirmed. (Matter of N. Y. & Long Island Bridge Co., 54 Hun, 400.) As the status and right of the company at that time to condemn -lands were then determined, we may profitably refer to what was therein held, as the necessity is thus avoided of considering the legislation which up to that time had been passed, and we obtain certain rules for our guidance in construing the subsequent legislation of 1892 and 1894.

It was therein held that-at the time the act of 1885 -was passed the petitioner’s charter had' been forfeited by its failure to comply with chapter 426 of the Laws of 1879, which provided that the construction of the bridge should be commenced “ under contract for the entire structure within two years” from May 30, 1879, before which time nothing was in fact done by the petitioner towards such construction. By the act of 1867 the penalty for a non-compliance therewith was declared to be that “ this act and all rights and privileges granted hereby shall be null and void.” It was held that the condition contained in the original act of 1867 extended and attached itself to the case of a non-compliance with the act of 1879, enlarging or extending the term of the first-mentioned act; that while the Legislature had power to waive the forfeiture, it had not the power, under the guise of this waiver and under the semblance of reviving the corporate existence, to confer distinctly new rights never before thought of, namely, the right to complete the bridge for railway travel; that the right conferred by the act of 1885 to build the bridge in question for railway travel plainly implied a grant of the right to lay' down railway tracks, and was thus a violation of the constitutional prohibition against the Legislature passing a private or local bill granting to any corporation the right to lay down railroad tracks, etc.

Presumably to cure the defects and overcome the objections-pointed out by this decision, the petitioner again applied to the Legislature and obtained (Chap. 411 of the Laws of 1892) an amendment-of section 10 of the original act, which provided that the bridge-should be “so constructed as to provide for the accommodation and. transportation of passengers and vehicles of every description, for the transportation of freight, and for such other purposes and in •such manner as shall in the judgment of the' said company seem most desirable.” By this act the bridge was to commence east of Park avenue, within one mile of the Grand Central Depot as to its .southern arm or approach, with a northern arm “either north or south of the Harlem river, with full authority to the said company to locate and build any other bridges necessary to such approach or approaches.” The act required that the construction of the bridge should be commenced before March 3, 1893, to which date the time for the commencement of the construction was extended in terms by the language of' the act. It was also provided that the bridge should bo completed before March 3,1900. Section 6 permitted the company to extend the approaches “ from its central termination in New York * * * along, over, through and across First or Second avenues for the southerly arm,” and also “ along, over, through and across First or Second avenues to and across the Harlem river •and beyond, so as to connect all existing roads of whatsoever nature, including the location and construction of any bridge over the said river such as may be necessary to its purposes.” The act of 1894 (Chap. 212) added a new section to the act of 1892, declaring that •nothing in the act should be construed as authorizing the laying of railroad tracks in the streets, and requiring that all openings made by the corporation in the streets be done under the supervision of .the department of public works.

In 1881 Congress passed an act authorizing the construction of the bridge, and on March 14, 1894 (28 U. S. Stat. at Large, 44), another act of Congress was passed modifying the requirement of the original act as to the height of the bridge.

By chapter 225 of the Laws of 1893, which' was a general law, the right to lay tracks and operate a railway by any company incorporated for the purpose of constructing a bridge connecting :any city of more than 1,000,000 of inhabitants with any other city in this State was conferred. -

Claiming under these laws the present right to build the bridge .•and lay down and operate a railway thereon, the respondent commenced this proceeding to acquire the appellant’s land for its purposes.

As to work upon the bridge, the first actual construction was. claimed to have been done in the latter part of May, 1888, consisting of the purchase of a schooner load of stone, which was placed as part of the foundation for one of the piers within fifty feet of the wall across tlie west side of Blackwell’s Island. What was further done is thus testified to by one of the witnesses: “After the stone was deposited on May 28th, I went on, and within a year after that spent a very considerable amount of money on the bridge in engineering and surveying and printing, publishing, engraving, traveling, for engineers and others. I estimate that tlie money I had spent from the beginning up to the end of the first year after commencing in 1888, was something like $117,000.” One of tlie defendant’s witnesses testified that in the month of June, 1888, he had gone to the place indicated and that he did not see tlie stone claimed to have been deposited in May. It is contended that this court in the former opinion (54 Hun, 400) decided that the placing of the- cargo of stone in position was not a commencement of the work. How far this is sustained is to be determined from the language of the opinion, which, upon this point, says : “ The petitioner’s own proofs fail to show anything more than preparation prior to the 30th of May, 1888, while tlie affidavits read on behalf of the city give the 7th of June, 1888, as the precise date when the first cargo of stone was placed upon Blackwell’s Island by any representative of the petitioner.” It will thus be seen that the court did not hold that the placing of the stone was not the commencement of the work, but merely decided that the proof' did not establish that the stone was placed prior to the 30th day of May, 1888. Such proof was then in the form of affidavits, while here it is by the oral testimony of witnesses, and we see no reason for disturbing the conclusion of the referee, who upon the evidence before him held that the construction of the bridge “ was commenced in due season.”

That the Legislature could extend the time for the commencement of the work and waive tlie forfeiture, was in the former proceeding distinctly held by this court, and by the very language of the act of 1892, as said, such time was in terms so extended, so that we now have the further proof before the court that, on the 1st, '2d and 3d days of March, 1893, certain engineers and laborers in charge of a contractor went on land at the foot of East Sixty-fourth street, situated on what is known as the proposed exterior street, and commenced work. At that time the petitioner had paid to the commissioners, of the sinking fund of the city of New York the sum of $5,000 on account, and thereby purchased from the city the land and the land under water necessary to the location of its New York piers. The piers had been previously located by engineers, and on that day they completed their lines and designated to the workmen the location of the piers; the workmen stripped off the earth within the lines designated down to the rock, preparatory to placing the stone for the foundation of the piers. The space cleared was about fifteen by thirty feet. Thereafter the company continued to work at construction and built three large coffer dams at the places where its piers are to be placed. It has all the necessary laud for the location of its pier on the Long Island side and has paid the additional amount due the city for the land, namely, $10,300, and is in possession of these four parcels of property, and is proceeding with the actual construction of the necessary piers.

Regarding what lias been done, therefore, in the light of the legislation in favor of this company as evidenced by the acts of 1892 and 1894, the case of People v. Manhattan Co. (9 Wend. 351) is in point: “ If (the requirements were) not complied with, then it could not be at all. The forfeiture, or the right of the State to enforce, the forfeiture, was then complete, and the argument is that, as they have since in repeated instances, in solemn and formal acts of the Legislature, recognized the defendants as an existing corporation, they are now estopped from setting up the forfeiture. The doctrine upon which this argument is founded is a familiar one in the law.”

It is claimed by appellant that the vice inherent in the act of 1885 granting to the petitioner the right to lay down railroad tracks is present in the act of 1892 ; that the terms of the act providing that the bridge “ shall be so constructed as to provide for the accommodation and transportation of passengers and vehicles of every description, for the transportation of freight, and for such other purposes and in such manner as shall in the judgment of the said c'ompany seem most desirable,” confer the same power to lay down railroad tracks as was found in the act of 1885. In the latter act it was provided that the bridge should be “ built for railway, carriage and foot travel.” As shown, the language of the act of 1892 is entirely different, and as it was undoubtedly passed for the purpose of meeting the very objection which was made to the act of 1885, unless it appears that such power to lay railroad tracks was conferred, it should not be implied from inapt or doubtful language, nor should a construction be placed upon it, if it can be avoided, which would render it unconstitutional. In other words, it is not disputed that the act of 1892 should receive an interpretation which, if consistent with the intent of the Legislature, would conform it to the Constitution, while it is equally true that the inteut of the Legislature is first to be determined from a consideration of the whole act and such other facts as properly may be referred to; and if it then appears that such intent is obnoxious to the constitutional inhibition, the act must fail, the rule being that where there is room for two constructions, both equally obvious and reasonable, the court must, in deference to the Legislature of the State, assume that it did not overlook the provisions of the Constitution and designed the act * * * to take effect. Our duty, therefore, is to adopt that construction which, without doing violence to the fair meaning of the, words used, brings the statute into harmony with the provisions of the Constitution.” (Grenada County Supervisors v. Brogden, 112 U. S. 268. See, also, People ex rel. Burrows v. Supervisors, 17 N. Y. 241; People ex rel. Bolton v. Albertson, 55 id. 54.) We think, therefore, that the law of 1892 does not give authority to the petitioner to lay down railroad tracks upon its bridge.

Another objection made to the act of 1892 is that it offends against section 16 of article 3 of the Constitution, which provides 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.” Chapter 111 of the Laws of 1892 is entitled “ An act to further amend chapter 395 of the Laws of 1861, entitled ‘ An act to incorporate the New York and Long Island Bridge Company for the purpose of constructing and maintaining a bridge over the East river between the city of New York and Long Island.’ ” On turning to the act, however, Ave find provisions, not alone for a bridge over the East river, hut for a most extensive system of so-called approaches reaching many miles to the north, and also for connections with certain- railroads, which necessarily implies the power to build approaches in other directions, and express authority is given for the construction and maintenance of a bridge or bridges across the Harlem river.

We think that such provisions in the act are unconstitutional, because the only subject designated either by the title itself, or by a reference to the act of 1867, is the construction and maintenance of a bridge across the East river within a certain locality, and it is that alone which, by a reading of the title, would be suggested to the members of the Legislature or to the public generally. And, while the necessary approaches are authorized, it cannot be successfully contended that indefinite lateral extensions, including bridges over the Harlem river, are a part of such necessary approaches. The constitutional prohibition was directed against this very thing: that is, a private or local bill with a title embracing one subject, and under that guise conferring other and different grants. These, however, are entirely separable and severable from the main and express purpose of plaintiff’s incorporation, and can be declared void without impairing the right which has been conferred upon the petitioner to build abridge across the East river. As said by Judge Cooley in his work on Constitutional Limitations (oth ed. 178): “ If by striking from the act all that relates to the object not indicated in the title that which is left is complete in itself, sensible, capable of being executed and wholly independent of that which is rejected, it must be sustained as constitutional. The principal questions in each case will, therefore, be whether the act is in truth truly broader than the title, and, if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected and leave a complete and sensible enactment which is capable of being executed.” (People ex rel. Rochester v. Briggs, 50 N. Y. 555 ; Matter of Van Antwerp, 56 id. 261 ; Matter of Improvement of Sackett Street, 74 id. 95.) Construed in the light of this rule it will be seen that the provisions relating to the northern approach, Avhich include, among other things the right to build Other bridges over the Harlem river, are not interdependent upon or inseparable from or connected with the subject mentioned in the title, namely, the building of a bridge across the East river. That this is so is shown by a reference to the original act of 1867, in which there is nothing said about such an approach, but authority is given to build a bridge over the East river, and the plans which form the “ Plaintiffs Exhibit Profile and. Location,” approved by the Secretary of War in 188Y, are the plans for the bridge which it would appear the petitioner is now seeking to construct, whole, entire and independent, and providing for no northern arm or approach. While, therefore, we think that the power lias not been conferred to build a northern arm with bridges over the Harlem river, and that that portion of the act is unconstitutional, it does not follow that the whole act is thereby rendered invalid, but as the two subjects are entirely separable, and are not inter-dependent, the one which is valid and constitutional, and which was concededly the subject referred to in the title, should be upheld.

Another objection taken is that the act of 1892 is obnoxious to section 20 of article 3 of the Constitution, which reads: “ The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.”

In the volume of Session Laws for the year 1892, issued under the certificate of the Secretary of State, this act is stated to have been “ approved by the Governor, May 2, 1892. Passed, three-fifths being present.” And the certificates of the presiding officers of the Senate and of the Assembly, attached to the original bill on file in the office of' the Secretary of State, also show that only three-fifths were present both in the Senate and in the Assembly. The act authorizes the corporation “ to use and occupy so much of the lands under water of the East river, not exceeding in parallel length of frontage on each shore of each channel two hundred and fifty feet, as may be necessary for the location and construction of piers and the anchorages of the bridge to be constructed by it according to the plans approved by the secretary of war, * * * provided that no such pier or anchorage shall extend into the said river beyond the established pier or bulkhead line.” Upon this the contention is based that, by a bill which has not received the assent of two-thirds of the members elected to each branch of the Legislature, the property of the State is given for private or local purposes. In the discussion it is assumed that the property referred to' belongs to the State; but in addition to the question whether the defendant can raise this point, the further question is presented as to whether or not the court will take judicial notice of the fact that the lands under water along the East river are the property of the State. There is no sufficient proof that the title to these particular parcels of land under water is in the State, the evidence being that the plaintiff corporation is in actual possession and occupation as to three of the piers by purchase of the right from the commissioners of the sinking fund, and holds the Long Island pier by purchase and a deed from the riparian owners. Unless, therefore, we assume without proof that the State owns such land, and that by the act it was granted for private or local purposes without the necessary vote of the members of the Legislature, the question is not presented. If, however, we assume that the State owns such lands, then the cases of People ex rel. Purdy v. Commrs. (54 N. Y. 276), People ex rel. Adsit v. Allen (42 id. 378) and People ex rel. Lee v. Board of Supervisors (43 id. 10) would be authorities against the validity of such a grant. On the other hand, we have the case of Saunders v. N. Y. Cen. & II. R. R. R. Co. (144 N. Y. 75), where it is said : “ While the State holds the title to lands under navigable waters in a certain sense as trustee for the public, it is competent for the supreme legislative power to authorize and regulate grants of the same for public or such other purposes as it may determine to be for the best interests of the State,” and that “ the land which a railroad corporation acquires in this State, though it may be technically called a fee, is for its use as a public highway and this is a use -for the benefit of the public, though perhaps the particular purpose for which the' grant was made is not very material.”

The distinction between the Saunders case and those relied upon by appellant would seemingly lie in the fact that while upland property belonging to the State could not be granted, it was competent for the Legislature by a three-fifths vote, instead of a two-thirds vote, to, give land under water to different railroad companies upon the ground, first, that such land underwater was not considered the property of the State, and, secondly, because the property so given was neither for a local nor a private purpose. It is unnecessary, however, for us to reconcile the attempted distinctions between these cases, because if there were nothing- else but the authorities, assuming that the proper foundation to present the question had been laid by showing that the lands under water were the property of the State, we should be inclined to the view taken in the cases relied upon by the appellant in holding that, being property of the State, it could not -be granted without the assent of two-thirds, of the members elected to each branch of the Legislature.

As a matter of fact it has been made to appear by proof that two-thirds of such members voted for the grant, and upon this head the question is presented as to whether the evidence was competent. As stated above, the statement in the Session Laws is to the effect that the act was “passed, three-fifths being present,” and a certified copy of the-certiiicates of the presiding officers of the Senate and the Assembly attached to the original bill on file in the office of the Secretary of State show only the fact that three-fifths were present. Against defendant’s objection the plaintiff offered certified copies of the journal of the Senate and Assembly containing the record o,f the final passage of the act, and a recital of the names of the members in each house voting aye and no. Such evidence, if competent, showed that the bill received the actual assent of more than two-thirds of the members of the Senate and Assembly. The question is whether suplí evidence was competent.. It is provided that “ no bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house unless so certified by the presiding officer of each house.” (1 R. S. 156 [8th ed.], p. 470. See, also, §§ 2 and 3 of chap. 306 of the Laws of 1842.) The act of 1892, amending the act to incorporate the bridge company, as it appears in the Session Laivs, as already said, has immediately under its title the statement, “ Approved by the Governor. May 2, 1892. Passed, threefiftlis being present.” In the case of Rumsey v. N. Y. & N. E. R. R. Co. (130 N. Y. 88) the certificate of the presiding officer of the Assembly was: This bill was read the third time and passed, twotliirds of all the members elected to the Assembly being present on its final passage.” It was said (head-note) that “it seems that under the provisions of the act of 1842 (Chap. 306, Laws of 1842), requiring the Secretary of State, when an act as published in-the Session Laws is certified as having been passed by the assent of two-tliirds of the members elected to each house,’ to state in connection with it as published in the Session Laws that it was passed £ by a two-tliirds vote,’ and that this statement shall be presumptive evidence that the bill was certified as having been so passed, the presumption thus created may be overcome by the production of the original certificate showing it was not so passed. But while under the Revised Statutes (1R. S. 156, § 3), no act shall be deemed to have been passed by a two-thirds vote unless so certified by the presiding officer of each house, a defective certificate which fails to state either way, i. <?., as to whether or not the act was passed by a two-thirds vote, is not conclusive to overcome the presumption created by the statement of the secretary in the Sessiou Laws. In such case the journal of the house whose presiding officer lia.s made the defective certificate may be resorted to for the purpose of determining the fact. It seems that it would not be proper to go back of the certificate, if in due form, for the purpose of impeaching it.” The provisions of the present law on this subject are contained in chapter 682 of the Laws of 1892 (Art. II, §§ 40, 44), and are as follows : “ Section 40. Certificate of presiding officer.— Upon the passage of a bill or concurrent resolution by either house the presiding officer thereof shall append to such bill or resolution a certificate of the date of its passage by the votes of two-thirds of. all the members selected to such house, or in the presence of tliree-fifths of such ipembers, as the case may be. No bill shall be deemed to have so passed unless certified by the presiding officer, which certificate to such effect shall be conclusive evidence thereof.”

“ Section 44. Statement in Session Laws as to passage of law.— In. the publication of every law the Secretary of State shall omit the certificate appended thereto, but shall cause to be inserted immediately under the title of the law a statement to the effect that it became a law upon the properly specified date with or without the approval of the Governor, or notwithstanding his objections, as the case may be, and adding the words : e Passed by a two-thirds vote,’ or Passed, three-fifths being present,’ in accordance with the certificates appended to the original bill. Such statement shall be presumptive evidence that the original law was certified by the presiding officer of each house accordingly.”

If it is competent for the Legislature to enact a rule .of evidence, it has seemingly prescribed one by section 40, by which the inquiry into the number of votes cast for any bill must be conducted, as declared, by resort to only one source of information, namely, the original act and certificates or the printed statute book when accotnpanied by the proper statement. Undoubtedly, where there is a defect in form, clerical error or irregularity, it leaves the matter open to inquiry; and in the ease of a defective certificate it would seem but reasonable to permit a resort to the journals of either house for the purpose of determining the vote by which a bill was passed. Were we called upon to determine the question here, where no defect, irregularity or error is shown in the statement in the Session Laws or the certificate of the presiding officers, we should be inclined to adopt the view contended for by appellant. But it is unnecessary for us to decide it, and, therefore, with this intimation, we leave it until it is directly presented.

Upon this question we prefer to rest our decision, upon the ground that by the act of 1892 there is no appropriation of public moneys or property for a local or private purpose. It is true that the act authorizes the use and occupation of lands under the water of the East river for the location and construction of piers. It is also provided that “the said bridge shall conform strictly as to * * * the location of its piers and anchorages ” to the plans approved by the Secretary of War. Of the four main piers of the bridge, three will rest entirely on land below the low-water mark of the East river, and the fourth will be partly above it. It is insisted that this land belongs to the State of New York in virtue of its sovereignty, and that it is appropriated by this act.

We have already called attention to the fact that there is no proof that this land belongs to the State, and that we cannot take judicial notice of that fact. We know that originally the land between high and low-water mark did belong to the State, but in respect to such land within the limits of the city of New York, the city has claimed and asserted the right to it, and we think we could show, if necessary, that the State has acquiesced in such claim. But it is urged that the grant goes to the extent of permitting the use of lands under water below the low-watermark, and thus, being under the navigable waters of a stream, such land is.the property of the State, the grant of which could not be given without the assent of the requisite two-thirds of the members of the Legislature. Our purpose in referring to this matter is to show that the question of title is one which does not lie in conjecture, and cannot be presumed or taken judicial notice of, but should be proved.

The question of whether the lands under water of the East river, either between high and low-water mark or below low-water mark, belong to the State or the city, in our view, is immaterial, because we do not consider the act of 1892 as a grant of any property rights. It certainly would not be seriously contended that in granting the right to place the bridge between certain streets and in certain localities, the intention was expressed on the part of the Legislature to grant the property within the limits fixed. So here, the authority “ to use and occupy so much of the lands under water of the East river,”. etc., is only the conferring of power to do what was necessary to he done in connection with the construction of the bridge, coupled with a restriction that the bridge corporation should not go beyond the exterior pier line, thus locating and defining the situation of the piers, leaving the corporation to proceed in the manner provided by statute for the obtaining of property, and whatever other rights are necessary and requisite for the location and construction of its piers.

It is further insisted by appellant that this corporation being subject to the law regulating the operation of street railroads, the grant of the power to extend the approaches between Eirst and Second avenues is void, because in conflict with that section of the Constitution (§ 18, art. Ill) which requires the consent of property owners and of the local authorities, and that it has also failed to comply with the requirements of section 38 of the Rapid Transit Act (added by Laws 1892, chap. 102), respecting the consent of the local authorities. This latter section in substance provides that if a company authorized to construct as part of its bridge an approach running in an easterly and westerly direction, should substitute in lien thereof an elevated railroad, it must comply with the provisions of the Rapid Transit Act by obtaining the consent of the local authorities and the property owners. Ye think it unnecessary to discuss these objections, because the petitioner is not amenable to the provisions of acts affecting other street or elevated railroads. It is true, as we have seen, that by a general and separate act (Chap. 225 of the Laws of 1893) any company incorporated for the purpose of constructing and maintaining a bridge or bridges over any river, etc., connecting any city containing more than a million of inhabitants with any other city in the State, is empowered to lay tracks and operate a railway on said bridge or bridges. If the petitioner lias not the right to lay down tracks and operate a railway upon the bridge, pursuant to this law, then it could not take the land of the defendant, which, as the proofs show, is needed for the purposes of the proposed railway. In its'original charter of 1867, the eastern terminus of the bridge did not rest upon or extend to land belonging to any other city, the municipality of Long Island City having been created by chapter 719 of the Laws of 1870. This we do not regard as 'fatal to plaintiff’s right to lay down railroad tracks upon its bridge; for, considering that since 1870 the bridge contemplated would necessarily connect the city of New York with Long Island City, 'the petitioner was brought within the provisions of the act of 1893, and obtained the right to lay down tracks upon its bridge.

We have gone over the record of this proceeding bristling with constitutional questions, which have been pressed upon our attention by the appellant with earnestness and ability, but, while some of them are serious, we do not regard any as fatal to the judgment and order appointing the commissioners. In addition, there were many subsidiary questions which we have not referred to because in our opinion they possess no merit. Where, as here, the Legislature has repeatedly expressed its intention of conferring the right upon the petitioner to construct a great public improvement, and this has been supplemented by acts of Congress, it is not the duty of the court to take microscopic views of the questions presented, to the end that it may find some means of destroying or impairing the validity of the grant which has been thus conferred, but it is our duty, in a broad and liberal spirit, to carry out, as far as the same can be done consistently with the Constitution and the laws, the legislative will; and where, as here, the forfeitures for failure to comply with certain conditions have been waived by subsequent legislative grants, we think that in the determination of the main question, upon the merits, as to the right to construct the bridge, the legislative intent should have great weight, and, if possible, should be given effect.

Having concluded, therefore, that the objectionable and unconstitutional clauses in the act can be separated so as not to destroy the main purpose, we see no valid reason for disturbing the conclusion reached by the referee in holding that the petitioner had the right to maintain this proceeding, and the order 'and judgment entered upon his decision accordingly should be affirmed, with costs.

Parker, J-, concurred in result.

Yan Brunt, P. J.

(dissenting):

I cannot concur in the conclusion arrived at by Mr. Justice O’Brien in the case at bar. There are, as it seems to me, many difficulties in the way of allowing the petitioner to exercise the right of eminent domain. It is, however, sufficient to advert to but one, and that is, the constitutionality of the act of 1892 (Chap. 411) amending chapter 395 of the Laws of 18G7. *

In 1889 the company commenced condemnation proceedings to take certain lands of the city on Blackwell’s Island. The city defended these proceedings, and it was held by both Special and General Terms that the act of 18S5 (Chap. 392), which amended the act of 1867, attempted to confer the power to lay down railway tracks in violation of section 18 of article 3 of the Constitution, and the grant was, therefore, void. The language of the act of 1885 was: “ Such bridge shall not be less than one hundred and fifty feet elevation above average mean tide at middle of each channel of the river and shall be built for railway, carriage and foot travel.” The language of the act of 1892 is : “ Such bridge shall be not less than one hundred and fifty feet elevation above mean high water at the middle of each channel of the river, and shall be so constructed as to provide for the accommodation and transportation of passengers and vehicles of every description, for the transportation of freight and for such other purposes and in such manner as shall in the judgment of the said company seem most desirable.” It seems to me that the language of the act of 1892 would not only authorize the doing of everything which could be done under the act of 1885, but everything in addition thereto which might seem to the company most desirable. It is difficult to conceive language which could have a broader scope than that which was employed in the act under consideration. The company is to build the bridge for the transportation of passengers and vehicles and . freight, and for such- other purposes and in such manner as in the judgment of said company may seem desirable. If the company did construct a railway bridge under the powers attempted to be conferred by this act, and its right so to do was sought to be questioned upon the ground that the language of the act did not confer such power, how is it possible that a court could determine that such power was not conferred ? It is manifest, if the question was presented to the court in that form, that there could be but one construction placed upon the act, namely, that the company had the authority to transport passengers and freight by means of a railroad across the bridge. It must build the bridge to transport vehicles of every description; and such .vehicles are to be transported in such manner as to the bridge com-j>any shall seem most desirable. A railway car is a vehicle of some description, and the transportation of such a vehicle upon rails or a railroad is the transportation of such vehicle in some manner, and if that manner is considered most desirable by the company, it is authorized by the terms of this act. Instead of the amendment of 1892 obviating the objections which were substantiated to the act of 1885, it seems to me it only aggravated such objections by the greater breadth of the language used.

In respect to the claim which is made that the act of 1893 has conferred upon this company the power to erect a railroad bridge, while such act seems to me clearly to be within the restrictions of the Constitution, although there are some decisions which have held to the contrary, yet that act cannot breathe constitutionality into the act of 1892. The sole authority to construct is derived from the act of 1892, the provisions of which act conferring this power are plainly within the constitutional prohibition. The petitioner, therefore, has no right to exercise the franchise attempted to be conferred by the act of 1892.

1 think the order appealed from should be reversed and the proceedings dismissed, with costs of this court and of the court below.

Judgment and order affirmed, with costs.


author: O’Brien, J. :

text:
    Caroline B. Van Bokkelen, Respondent, v. Massachusetts Benefit Association, Appellant.

      Insurance — foifeitures cure not favored— estoppel by a custom of business — notice of a change in the method of malting payments — who may maintain an action to reinstate a policy. '

    Forfeitures are not favored in the law and courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture oran agreement to do so, upon which the other party has relied and acted.
    Any agreement, declaration or course of action on the part of an insurance company which leads the party insured honestly to believe that by conforming to it a forfeiture of his policy will not be incurred, followed by due conformity upon his part, will estop the insurance company from insisting upon the forfeiture although such forfeiture might be claimed under the express letter of the contract.
    Where the absolute title to policies of insurance is in an assignee while she lives, and during that time no other person has any interest whatever in the policies, she is entitled to bring an action to reinstate the policies without joining the assured or other persons who in the event of the assignee’s death might have an interest.
    Upon the trial of an action brought to reinstate a policy of insurance issued by a benefit association, claimed by the association to have been forfeited through a failure of the assured to pay a mortuary call within the time prescribed, it appeared that the insured deposited a check in a New York post office letter box upon the day when file remittance became due, and that fora period of thirteen years the assured had been in the habit of paying premiums by depositing a check for such amounts in a New York post office letter box, although the contract of insurance required that payments should be made at the home office of the company in Boston.
    Some time prior to the last mortuary call the form of the notice was changed and a statement was placed in fine print upon a coupon attached to the notice, which coupon was to be returned to the company, that remittances must reach the home office on or before the expiration of the time limited in the notice, but the assured testified that he had no knowledge of the change in the form of the notice until the time of the trial of the action.

      Held, that the company having failed to give the assured proper notice of the change in its rule as to the method of making payments, was not justified in enforcing the forfeiture of the policy for a failure to pay the assessment in time.
    Appeal by the defendant, the Massachusetts Benefit Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2?d day of April, 1895, upon tlie decision of the court rendered after a trial at tlie New York Special Term.
    This action ivas brought by the assignee of one Spencer D. O. Van Bokkelen to compel the reinstatement of two policies of insurance upon the life of said Van Bokkelen claimed by the defendant, to have been forfeited by the assured through an alleged failure to-comply with the conditions of said policy.

      J. K. Hayward, for the appellant.

      Alexander 8. Bacon, for the respondent.
   O’Brien, J. :

The defendant, in 1881, issued two policies of insurance on the life-of Spencer D. C. Van Bokkelen. For thirteen years he continued to pay the premiums every two months on these policies. About the 1st of January, 1894, the defendant sent him a notice of a mortuary call to be paid on or before February 1, 1894. Although there is a dispute as to whether a check in payment thereof was. mailed on the first or second day of February, the learned trial judge, on conflicting evidence, concluded (and with such conclusion we see no reason to interfere) that on the first day of February a. check for the assessment was mailed by depositing such check in a. New York post office letter box, inclosed in a post-paid envelope, directed to the defendant in Boston. From time to time during the thirteen years payments had been thus made, although the contract required that they should be made at the home office in Boston.. It further appeared that at some time prior, but just how long-before does not appear, the form of notice was changed, and a statement was placed in fine print in the coupon which was part of the mortuary notice, and which coupon was to be returned to and retained by the defendant, that the remittances must reach the home office in Boston on or before the expiration of the time limit named in the notice. Such statement -was not contained in the body of the .notice which was to be retained by the insured as a receipt for his premium, and Mr. Van Bokkelen swears that he never knew of this, change in the form of notice until he heard of it in court on the day of the trial.

In disposing of this question the learned trial judge said : The> notice says that the call must be paid on or before February 1st, ■and the express notice is that it may be made by check. The course of dealing between the parties would settle what was meant by this notice, and, when it appears that the company was in the habit of accepting as a payment checks mailed upon the day that the amount was required to be paid, I think there muse be some express and explicit notice to the assured that it required a different method of payment before they could insist upon a forfeiture where the usual method had been adopted. And the mere fact that on a coupon annexed to the notice was printed, in small letters, a statement that the company would require that the remittances must reach the home office on or before the expiration of the time limit in the notice was not sufficient notice to the assured to justify the company in changing its method that had been adopted for making the payments. Good faith to the assured required that he should be distinctly informed that his policy would be forfeited unless he changed the method by which, with the assent of the company, he had been in the habit of making his payments. It appears in this case that the assured had paid promptly the calls under these policies for many years, and it is a harsh enforcement of a technical provision that would forfeit these policies after such payments, because of the difference of one day in the receipt of the premium, and I think there is presented a fair case for the interposition of a court of equity.”

We might well have affirmed this judgment upon the opinion of the court at Special Term; but it has been forcibly insisted that there is no legal warrant for the conclusion thus reached, and to show that in this the appellant is mistaken it is only necessary for us to refer to one or two decisions. In Life Ins. Co. v. Eggleston (96 U. S. 572) Judge Bradley said: “We have recently, in the case of Insurance Company v. Norton (supra, 234), shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture or an agreement to do so on which the party has relied and acted. Any agreement, declaration or course ■of action or. the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on-his part, will, and ought to, estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture.”

The rule thus stated was not only applied in the cases cited, but in our own State we have many similar instances of its application, from but one of which it will be necessary to quote, and that only because it is in many of its features analogous to the case at bar. We refer to the case of Kenyon et al. v. The K. T. & M. M. A. Association (122 N. Y. 247). The certificate of insurance there provided that if any assessment was not paid- within ten days after proper notice the certificate should cease and determine; there was indorsed upon it a by-law that any member failing to pay his assessment within ten days after notice would forfeit the certificate of membership and all benefits therefrom, but that he might be reinstated within thirty days after notice, if allowed, by paying all arrearages. On March 21, 1885, defendant’s secretary mailed to the assured a notice that an assessment was due and payable on or before April sixth; it also stated that assessments were payable at defendant’s office in cash, by sight draft or money order, payable to defendant’s secretary. Plaintiffs proved that on April 4, 1885, the assured “ sent by mail from Watertown his check drawn upon a bank there for the amount to the defendant’s secretary at Cincinnati payable to the order of the latter. It was sent sufficiently early to reach by due course its place of destination within the ten days mentioned in the notice, but it was not received by the defendant’s secretary. And if it had readied him within that time lie would not have been required to accept it in performance of the contract ae represented by its terms before mentioned ; but the course of dealing between the parties had been such that the member was at liberty to assume that his check upon the bank was receivable by the defendant because it had uniformly and without objection received his checks in payment for assessments upon the certificate. So far the defendant had waived strict performance and permitted the member to pay in his checks as a substitute for the method of payment mentioned in the notice. It appeared that wdthin a little more than a year and a half preceding the time of this assessment, Kenyon had sent to the secretary fifteen checks drawn by Iiim as this was, and upon the same bank at Watertown in payment of •assessments and that they were so received. But it is contended that the receipt at the home office of the defendant of that which the assured was permitted to deliver in payment was essential to accomplish it; that is the rule when nothing appears to the contrary (Ins. Co. v. Davis, 95 U. S. 425), and such was the effect of the contract in question, and, as we have seen, not modified by the terms of the •notice of assessment.” Upon these facts it was held that from the course of dealing adopted by the defendant in respect to the payments, the assured might fairly and in good faith have been led to ¡suppose that defendant’s requirement as to payments was satisfied by mailing the check. (See, also, Titus v. G. F. Ins. Co., 81 N. Y. 410; Roby v. A. C. Ins. Co., 120 id. 510; Miesell v. Globe Mutual Life Ins. Co., 76 id. 115; Palmer v. Phœnix Life Ins. Co., 84 id. 71.)

It appearing then that Mr. Yan Bokkelen mailed his check on the 1st day of February, 1894, tiie last day called for in the notice, a tiling that he had frequently done before, and notice not having ¡been projierly given, and, therefore, no knowledge having been brought to the assured of any change in its rule as to the methods ■of payment, it would be inequitable to permit the defendant to cancel the policies.

The only other question is as to the right of plaintiff to maintain this action. It was shown that by the assignment the absolute title to the policies was vested in the plaintiff while she lives, and during that time no other person has any interest therein ; and even if we assume what does not appear, that there are other parties who, in the event of her death, might have an interest in the policies, this would not require that they should be brought in. We think, therefore, that without joining either them or Mr. Yan Bokkelen, the plaintiff could maintain this action.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


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    Robert J. Dean and Others, Respondents, v. August Marschall and Others, Appellants.

      Stipulation — “final judgment,”'synonymous with “final determination of an action.”

    In an action brought in 1893 to recover moneys alleged to be due under a stipulation, it appeared that certain casks of brandy were stored with the plaintiffs, comprising the firm of R. J. Dean & Co., and were claimed by them, and by the defendants, the firm of Marschall, Spellman & Co., and also by the defendant., the First National Bank of Chicago, which had begun a suit in 1890 in the Superior Court of the city of New York against R. J. Dean & Oo., to recover their value; that thereafter, in 1891, during the pendency of said last-mentioned action, the stipulation in question was entered into between R. J. Dean & Co. and Marschall, Spellman & Co., which provided, first, that the latter should at once pay the government tax upon the brandy, and, further, that if R. J. Dean & Co. were defeated at the first trial upon its merits of the action of tlio First National Bank of Chicago against them, Marschall, Spell-man & Oo. should have an election to pay the judgment and take possession of the brandy; but that if they did not so elect, and R. J. Dean & Co. appealed, the goods should then be sold for joint account, and the proceeds thereof (less the amount of the government tax, to be repaid to Marschall, Spellman & Co.), should be deposited in some trust company “ to await the final determination of the action.” That if the “final judgment” against R. J. Dean & Co. should be less than §1,750, Marschall, Spellman & Co. should pay the judgment, and take either the brandy or the proceeds. That if the “final judgment” was more than §1,750, and Marschall, Spellman &Co. elected not to pay it, R. J. Dean & Co. should refund the tax paid upon the brandy by Marschall, Spellman & Co., and that the latter should release and assign to R. J. Dean & Co. all tlieir right to the brandy, and also the warehouse receipts issued upon it.
    The action in the Superior Court resulted in a judgment against R. J. Dean & Co. for the sum of 81,742.38. Marschall, Spellman & Co. did not elect to take the brandy, but paid the lax thereon, and sold the brandy; the proceeds less the tax were deposited upon joint account in a trust company. R. J. Dean & Co. appealed from the judgment, and upon a remittitur from the Court of Appeals a judgment of affirmance ivas entered against R. J. Dean & Co. for §1 984.21.
    R. ,J. Dean & Co., claiming that the judgment entered upon the trial of the action in the Superior Court for §1,742.38, ivas the “ final judgment” referred to in the stipulation, demanded of Marschall, Spellman & Co. payment of the original judgment, and of one-half of the counsel fees and expenses of the trial, Which the latter refused to pay, claiming that the judgment entered upon . the remittitur, and which was for more than §1,750, was the “final judgment.”
    Upon an appeal from a judgment in favor of the plaintiSs,

      Held, that the expression “final judgment,” as used in the stipulation, was synonymous with the expression “final determination of theaction,” occurring-earlier in the stipulation, and that such determination was not reached until the matter was finally decided in the Court of Appeals.
    Appeal by the defendants, August Marsehall and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of April, 1895, upon the decision of the court rendered after a trial at the New York Circuit before the court without a jury.
    The plaintiffs and defendants both being interested in certain casks of brandy stored in bonded warehouse, and the brandy being also claimed by the First National Bank of Chicago, which had begun a suit for the value thereof in the Superior Court, the following stipulation was entered into :

      “ Wi-iereas, R. J. Dean & Company and Marsehall, Spellman & Company are both interested in the result of the above-entitled action, and are also interested that the twenty barrels of brandy involved herein should not be forfeited to the government for nonpayment of tax, and that the United States government have threatened to forfeit said brandy unless said tax is paid immediately.
    “ Now, therefore, in consideration of the foregoing recital and one dollar ($1) in hand paid by each of the parties to the other, it is understood, agreed and promised by and between the subscribers, hereto as follows:
    “ First. That Marsehall, Spellman & Co.' will pay the United States government tax on the twenty barrels of brandy stored with R. J. Dean & Co., in bonded warehouse, promptly on the execution of this agreement.
    “ Second. That in the event that R. J. Dean & Co. are defeated at the first trial of this action on its merits, then, and in that event, Marsehall, Spellman & Co. shall have the election to pay the judgment and have possession of the brandy.

      “ That in the event that Marscliall, Spellman & Co. shall not elect to pay said judgment and take said brandy, and R. J. Dean & Co. shall elect to take an appeal, that then, and in that event, the goods shall be sold on joint account and consent by both parties, and the proceeds thereof, less the amount paid for government tax, shall be deposited in some trust company to await the final determination of the action, and the amount of said government tax shall be repaid to Marscliall, Spellman & Co.
    “ That in the event that the final judgment against R. J. Dean & Co. shall be less than seventeen hundred and fifty dollars ($1,750), that Marscliall, Spellman & Co. shall pay the judgment and take either the brandy or the proceeds.
    “ That in the event that final judgment shall be more than seventeen hundred and fifty dollars! ($1,750), and Marscliall, Spellman & Co. shall elect not to pay said judgment as aforesaid, that then, and in that event, R. J. Dean & Co. shall refund the tax paid by Marschall, Spellman & Co., and Marscliall, Spellman & Co. shall release to R. J. Dean & Co. and assign all their right, title and interest in and to the brandy, and the warehouse receipts issued by R. J. Dean & Co.
    “ If R. J. Dean & Co. are finally successful in this action, that then, and in that event, they shall deliver to Marscliall, Spellman & Co. the brandy upon receipt of bond of indemnity against damage by reason of the outstanding negotiable receipts.

      “ In witness whereof , we have hereunto set our seals and subscribed our names this sixth day of April, 1891.
    “ R. J. DEAN & CO. (l. s.)
    “ MARSCHALL, SPELLMAN & CO. (l. s.)”
    The action in the Superior Court resulted in a judgment against Dean & Co. for the sum of $1,712.38. Defendants did not elect to pay the judgment and take the brandy, but paid the government tax thereon and sold the brandy, and after deducting from the proceeds the amount of the tax, deposited the balance in a trust company to the joint order of themselves and Dean & Co. The plaintiffs appealed from the judgment to the G-eneral Term and subsequently to the Court of Appeals, in both of which the judgment was affirmed, and upon the remittitur from the latter court a judgment was entered, which made the entire amount, $1,984.21. The jilaintiffs, claiming that the judgment entered on the trial of the action was the “final judgment” referred to in the stipulation, which was for less than $1,750, demanded the payment of one-half of the counsel fees and expanses of the trial and of the amount of the original judgment entered thereafter. The defendants, claiming that the judgment entered upon the 'remittitur of the Court of Appeals was the “final judgment” referred to in the stipulation, refused to pay or accede to plaintiffs’ demands.. Upon the trial the court construed the stipulation in accordance with the plaintiffs’ contention and rendered a decision ,up>on which the judgment was entered from which this appeal is taken,

      Gibson Butzel and Henry Heoarsulmer, for the appellants.

      J. W. Bootliby, for the respondents.
   O’Brien, J.:

The question is, what is the meaning of the term “ final judgment ” as used in the stipulation ?

The Code of Civil Procedure provides for two forms of judgment, one interlocutory and one final; but as the action in the Superior Court was to recover a sum of money, in which no interlocutory judgment could be entered, it is evident that the term “final judgment” was not used in the stipulation to distinguish it from such interlocutory judgment: The term is susceptible of two other significations : One, which in a strict legal sense is its true meaning, viz., a determination of the rights of the parties after a trial, whether such is the subject of review or not; and the other, its colloquial use or signification, which makes it synonymous with decisive, or a judgment that cannot be appealed from and which is perfectly conclusive upon the matter adjudicated.

In Kinney’s Law Dictionary and Glossary (P. 318) a final judgment is defined as “ a judgment which puts an end to an amion by declaring that the plaintiff either has or has not entitled himself to recover a judgment from which there is no appeal.” In Abbott’s Law Dictionary (Yol. 1, p. 497), where quotations from cases are given showing the two meanings of the term, it is said, in speaking of “final adjudication, decree, judgment, order or sentence:” “ These expressions may, indeed, signify a judicial decision which is superior to review, one which conclusively determines the questions involved.” And in Black’s Law Dictionary (P. 493) it is thus defined: “ A judgment which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. (3 Bl. Comm. 398.) So distinguished from interlocutory judgments, which merely establish the right of the plaintiff to recover in general terms. (Id. 397.) A judgment which determines a particular cause. A judgment which cannot be appealed from, which is perfectly conclusive upon the matter adjudicated. (24 Pick. 300.) A judgment which terminates all litigation on the same right. ..The term ‘final judgment’ in the judiciary act of 1789 (§ 25) includes both species of judgments as just defined. (2 Pet. 494; 1 Kent Comm. 316; 6 How. 201, 209.) A judgment is final and conclusive between the parties when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but also as to all facts necessarily involved in the issue.” (See, also, Bouv. Law Diet. [15th ed. p. 661].)

The question is, in which of these senses was the term used in the stipulation? Does it mean the judgment entered after the trial of the Superior Court action, or a judgment finally settling the rights of the parties to that action beyond all appeal ? Prom a reading of the stipulation itself, we think the meaning and intent of the parties clear. It will be noticed that in the clause numbered second it is provided that should jfiaintiffs be defeated at the first trial of the action on its merits then defendants should have the election to pay the judgment and take possession of the brandy ; if the latter should not so elect, then the goods were to be sold on joint account and the proceeds deposited “ to await the final determination of the action.” And this language is followed by the clause in dispute which provides what is to happen in the event that the “final judgment” shall be more or less than $1,750. When we recall that express provision was made as to what was to happen in the event of the first trial going against the plaintiffs on the merits, it is made apparent that the term “final judgment,” as subsequently used, is synonymous with the expression “ final determination of the action ” employed in the preceding clause. If this latter term were the one in dispute we should have little difficulty in reaching the conclusion that by it was meant the final settling of the rights of the parties to the action beyond all appeal. We think the judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.


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    Susan Hamilton, as Administratrix, etc., of William Hamilton, Deceased, Appellant, v. Catherine Brennan, Respondent.
    Usury— the payment of an illegal bonus by a husbcmd from his own money, on . negotiating his wife’s promissory note.

    Where a wife borrows money upon terms which are usurious, the fact that the illegal bonus exacted was subsequently paid to the lender not by the wife, but • by her husband and out of his own money, does not validate the unlawful transaction.
    Appeal by the plaintiff, Susan Hamilton, as administratrix, etc., of William Hamilton, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of June, 1895, upon the decision of the court rendered after a trial at the New York Circuit before the court, without a jury, dismissing the plaintiff’s complaint upon the merits.

      Delos McCurdy and John Yard, for the appellant.

      Bernard J. Tinney, for the respondent.
   O’Brien, J.:

The action was brought to recover upon a promissory note for $1,000 made by the defendant. The making of the note and the fact that it has not been paid are admitted, but the defense of usury is pleaded. The only question presented to the court below was as to whether or not the loan represented by the note was made in pursuance of an usurious agreement. The court found, as facts, that the note was the result of an agreement entered into, wherein the plaintiff’s intestate agreed to loan to the defendant the sum of $1,000, for which the latter was to pay fifty dollars bonus, together with interest at six per cent per annum ; that there was loaned to the defendant the sum of $700 at the time the note for $1,000 was made, and that thereafter there was paid the fifty dollars bonus and the sum of sixty dollars interest. Upon these findings the court concluded that the defense of usury was made out and that the complaint should be dismissed.

It will thus be seen that the question was purely one of fact. The only witness upon the question of the agreement between the parties at the time the loan was made and the note given, was the husband of the defendant who, in answer to the question as to whether there was any talk or conversation between the defendant and the intestate. as to any money, or amount of money, which was to be paid to him for the use of that money,” answered, “Yes, sir, six per cent interest, and fifty dollars bonus.” And, in response to further questions, he testified that the fifty dollars was subsequently paid by him, and that just prior to the making of the note the only money received was $700. There was no contradiction of this testimony and, although on cross-examination it appeared that the money in fact was borrowed for the benefit of the defendant’s husband, who, out of his own moneys paid the bonus, the court was justified in finding that at the time, or just prior to the making of the note, the consideration therefor was the agreement already detailed.

With such testimony uncontradicted in the case, it cannot be said that the findings made by the learned trial judge upon the questions of fact were unwarranted. But to avoid the conclusion, reliance is placed upon the circumstance appearing that the bonus was subsequently paid not by the wife, but by the husband out of his own moneys. This, we do not, however, regard as destroying the legal conclusion which was drawn from the facts found, because, though the burden which was placed upon the defendant of paying a $1,01)0 note in consideration of a loan of $700, and in addition thereto of paying six per cent interest on the amount of the note, together with the bonus of fifty dollars, was assumed in part by the husband, this does not destroy the vice inherent in the agreement itself. Where, therefore, as here, upon un contradicted evidence, the court has found that the loan represented by the note was in pursuance of an usurious and unlawful agreement, such agreement cailnot be validated, if once proven, by the fact that the husband, instead of the wife, undertook to comply with its terms, and made the illegal payments as called for by such agreement.

We think the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.