author: Mayham, P. J.:

text:
    William J. Delaney, as Receiver in Supplementary Proceedings of the Property of Thomas B. Valentine, Appellant, v. Thomas B. Valentine and Others, Respondents.

      Mortgage by a debtor with a trust in his own favor, fraudulent — chattel mortgage in trust — when void as to the creditor's of the mortgagor — when title is immediately vested in the mortgagee —how a failing dealer may put his estate in trust.

    A conveyance by a debtor, whether solvent or insolvent, of all his property to a trustee to pay a portion of his creditors, with the provision that the surplus shall he returned to him, leaving other creditors unprovided for, is fraudulent and void as to such latter creditors.
    The creation of a trust in a chattel mortgage, given for the benefit of certain preferred or favored creditors, named therein, who are not mortgagees, alters the lights of other persons who are creditors of the mortgagor, but whose debts are not provided for in the trust created by the mortgage, and where such a trust, so far as the surplus or excess is concerned, is for the benefit of the mortgagor it is in contravention of the provisions of the statute, and, whether the surplus is large or small, and whether there is or is not in fact a surplus, is immaterial.
    Where a chattel mortgage is given to secure debts, some of which are due when it is given, the mortgagor is in default from the moment the mortgage is delivered, and by operation of law the title to the mortgaged property vests at once in the mortgagee subject to the performance of the trust thereby created.
    When a trader or dealer fails, and proposes to put his estate in trust, he must devote the whole of it immediately and unconditionally to the payment of his indebtedness, and it is only on those terms that he is allowed to withdraw it from the ordinary process of the law. He must" reserve nothing to himself, but must give all to his creditors.
    Appeal by the plaintiff, William J. Delaney, as receiver in supplementary proceedings of the property of Thomas B. Valentine, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 3d day of January, 1894, upon the decision of the court rendered .after a trial at the Saratoga Special Term dismissing the plaintiff’s ■complaint upon the merits.

      Wvnsor B. French, for the appellant.

      W. P. Butler and Edgar T. Braclcett, for the respondents.
   Mayham, P. J.:

This action was prosecuted by the plaintiff, as receiver of the property of Thomas B. Valentine, to have two chattel mortgages executed to Ann A. Lockwood and an assignment of certain choses in action to William II. Lockwood declared fraudulent and void as to the claims of the plaintiff, as receiver, and to have the same set aside as to the plaintiff as such receiver, on the ground that the same were given by the defendant Thomas B. Valentine, and received by .the said defendants Ann A. Lockwood and William H, Lockwood, for the purpose and with the intent of hindering, delaying and defrauding the plaintiff as such receiver, a creditor of the said Thomas B. Valentine.

The defendants Ann Lockwood and William II. Lockwood joined in an answer denying the allegations of fraud, setting up the mortgages to Ann Lockwood and a sale of the mortgaged property at public auction, at which the defendant William H. Lockwood purchased the same.

The answer also set up the assignment of the accounts to William II. Lockwood by the defendant Valentine, as • collateral to the payment of the debts of Valentine to certain other persons.

The defendant Valentine, by separate answer, alleged that the-mortgages and assignment were made in good faith and to secure actual indebtedness of such defendant, and that the mortgagee took possession of the mortgaged property and actually sold the-same for the sum of $5,000 to William H. Lockwood, who took actual possession of the same, and also alleged that the assignment of -the accounts to William H. Lockwood was to secure actual indebtedness of the defendant Valentine to certain persons named in the assignment, and was in good faith without any design to-defraud creditors. The answer also charged that the appointment of the plaintiff as receiver was irregular and void.

The trial judge dismissed the complaint, and from the judgment entered on such dismissal the plaintiff appeals.

The case discloses that on the 23d day of March, 1863, ;ne defendant Thomas B. Valentine, who was a merchant doing business in the village of Saratoga Springs, was indebted to- Ann A. Lockwood in the sum of $7,500, and also indebted on two notes, one of $1,200 and one for $180, indorsed by William H. Lockwood, and a- note of $1,500, indorsed by Augusta II. Lockwood; that to secure the aforesaid debts he executed on that day a chattel mortgage «overing the entire stock of merchandise owned by him, and in his store at 468 Broadway in Saratoga Springs, which, mortgage was duly filed in the town clerk’s office.

Subsequently, and on the 14th day of June, 1893, the defendant Valentine executed to the defendant Ann A. Lockwood another chattel mortgage on the same store of goods, and “ All the stock of goods, the fixtures and personal property of every kind and description owned by said Thomas B. Valentine situate in and about the premises No. 468 Broadway in the village of Saratoga Springs.” Which mortgage was also duly filed in the office of the proper town clerk, and contained the following conditions and provisions : “ Upon condition that if said party of the first part shall and do well and truly pay or cause to be paid the following notes owing by him, to wit: One made by him, said Thomas B. Valentine, for the sum of $5,000, dated July 22d, 1892, payable twelve months after date, with interest, at the Eirst National Bank of Saratoga Springs, to the order of said Ann A. Lockwood. One made by said Valentine, dated November 10, 1892, payable to the order of said Ann A. Lockwood twelve months after date at the Eirst National Bank, for $1,500 and interest. One made by said Valentine, dated December 2d, 1892, payable to the order of W. TI. Lockwood twelve months after date, with interest, at the First National Bank of Saratoga Springs, for $1,200. One made by said Valentine, dated January 31,1893, payable to the order of said Ann A. Lockwood twelve months after date at the Eirst National Bank of Saratoga Springs, with interest, for the sum of $1,000. One made by said Valentine, dated March 25th, 1893, for the sum of $1,500, payable three months after date at the First National Bank of Saratoga Springs, indorsed by Augusta IE. Lockwood. A note of $967.71 given by said Valentine to M. IE. Berge & Sons, due July 2,1893. A note of $1,500 given by said Valentine to Ivah Holmes, payable on demand on account of $629.75, due from said Valentine to Jay C. Wemple & Co., then these presents and everything herein contained shall cease and be void- And the said party of the first part, for himself, his executors, administrators and assigns, does hereby covenant and agree to and with the said party of the second part, her executors, administrators and assigns, to make punctual payments of the money hereby secured.

“And in case default shall be made in payment of the said sum above mentioned, or in case the said party of tbe second part shall sooner choose to demand the said goods and chattels, it shall and may be lawful for, and the said party of the first part does hereby authorize and empower the said party of the second part, her executors, administrators and assigns, with the aid and assistance of any person or persons, to enter and come into and upon the dwelling house and premises of the said party of the first part, and in such other place or places as the said goods and chattels are or may be held or placed, and talce and carry away the said goods and chattels, to sell and dispose of the same for the best price they can obtain, at either public or private sale, and out of the money to retain and pay the said sum above mentioned, with the interest and all expenses and charges thereon, rendering the overplus (if any) unto the said party of the first part, his executors, administrators and assigns. And until default be made in the payment of the aforesaid sum of money, the said jjarty of the first part to remain and continue in quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same, unless the said party of the second part, her executors, administrators or assigns shall sooner choose to demand the same, and until such demand be made, the possession of the said party of the first part shall be deemed the possession of an agent or servant for the sole benefit and advantage of his principal, the said party of the second part.”

On the day of the execution and delivery of the last-mentioned mortgage, and at the same time, the defendant Valentine executed and delivered to the defendant William II. Loclcwood an assignment, of which the following is a copy :

“Eor value received, I hereby sell, assign, set over and convey unto William II. Loclcwood, of Saratoga Springs, N. Y., all the accounts due or owing to me mentioned in the annexed list, and all other accounts, dues and choses in action due or owing to me as collateral security for the payment of a balance of $1,352.50, on a note of $1,500 made by me, Thomas B. Valentine, and indorsed by Augusta A. Loclcwood, and owned by the Eirst National >Banlc of Saratoga Springs, the sum of $147.50 being paid on said note. Also, a note of $967.71 held by EL II. Berge & Sons, due July 4th, 1893. Also, a note of $500 and interest owned by Ivah Holmes, said Berge note and Holmes note being each made by said Thomas B. Valentine. Also, anote of $18.93 given by said Thomas B. Valentine to B. IT. Trim. A claim of $282.92 owing by said Thomas B. Valentine to George W. Valentine for work. Also, a claim of $148.85 due from said Thomas B. Valentine to John W. Valentine for work. An account of $629.70, owing by said Thomas B. Valentine to Jay 0. Wemple & Go., which becomes due July 2, 1893. Three notes of said Thomas B. Valentine owned by the First National Bank of Saratoga Springs ; one of $50, due July 3d, 1893; one of $150, duo July 9, 1893, and one of $100, due Aug. 5,1893. Also, to pay two notes of $65 each, given to S. A. Bickard, and $83.33 for month’s rent of the store No. 468 Broadway.”

On the fourteenth of June, the day of the execution of the last-mentioned mortgage by the defendant Valentine to the defendant Ann A. Lockwood, she by her agents and attorneys took possession of the goods and the chattels embraced in and covered by the mortgage, and on the same day and time the defendant William H. Lockwood took possession of the accounts, notes and choses in action assigned to him under and by virtue of the assignment above set out. On the 15th day of June, 1893, a judgment was recovered against the defendant Valentine, on which an execution was duly issued and returned wholly unsatisfied, and on proceedings supplemental to execution, the plaintiff was, on the 17th day of June, 1893, duly appointed receiver, and on the twenty-ninth day of June another judgment was obtained against the same defendant, and the receivership was extended by order to the last-mentioned judgment.

The receiver, who is appellant on this appeal, insists that the mortgage to Ann A. Lockwood of June 14, 1893, and the assignment to William H. Lockwood, made on the same day by the defendant Valentine, are in violation of the provisions of 2 Be vised Statutes (§ 1, p. 1.35), for the reason that they create a trust in favor of the mortgagor and assignor, and are, therefore, violative of the right of his creditors.

The language of that section is as follows: “ All deeds of gift, all conveyances and all transfers or assignments, .verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against the creditors existing or subsequent of such persons.”

The condition in the mortgage which directs the mortgagee to sell and dispose of the property mortgaged for the payment of the amount.intended to be secured, is not unlike an ordinary mortgage of chattels, and had all the persons whose debts are attempted to be secured been made mortgagees, it could hardly be maintained that the provision requiring the mortgagee to pay the surplus to the mortgagor would be such trust for his benefit as to render the mortgage void under the provisions of the statute above quoted.

Under such circumstances the legal title before breach or forfeiture would have remained in the mortgagor, liable to sale on execution, subject to the payment of the mortgage, and if the mortgage was an honest transaction, and was given to secure honest indebtedness due to the mortgagees, the creditors of the mortgagor not secured by the mortgage would have no right to complain, as their right to the surplus, after the payment of the mortgage, would in that case be in no wise impaired.

Does the creation of a trust in the mortgage for the benefit of creditors, who are not mortgagees, alter the rights of the parties who are creditors of the mortgagor, but whose debts are not provided for in the trust created for the benefit of certain preferred or favored creditors ivho are named in the mortgage? The same .question may be asked as to the assignment made by the defendant Valentine to the defendant ¥m. II. Lockwood.

Both the mortgage and assignment create a trust for the benefit of creditors of Valentine who are not parties to the instruments, and together they transfer all of his property to the mortgagee and assignee, who are to use the avails of the same in paying the debts of the defendant Valentine which are therein specified, and return to the mortgagor and assignor any surplus that may arise out of the sale of the property assigned or mortgaged to the mortgagor or assignor.

This trust, so far as such surplus or excess is concerned, is for the benefit of the mortgagor and assignor. Such a trust seems clearly in contravention of the provisions' of the statute.

Ve are referred by the learned counsel for the respondents to the following cases: Auburn Exchange Bank v. Fitch (48 Barb. 344); Remington Paper Co. v. O'Dougherty (36 Hun, 79); Murphy v. Briggs (89 N. Y. 446); Knapp v. McGowan (96 id. 75), in support of tiie contention made by him, that so long as a party devotes liis property to the payment of a bona fide .áGot, no unlawful act is done, a proposition which is to some extent established by the cases cited and which cannot be doubted, when the party makes no reservation of the property to himself, in violation of the rights of other creditors. But the case of Knapp v. McGowan, above cited by the respondents, contains this very important and significant qualification, which seems to support the contention of the appellant in this case, and is stated in the syllabus of that case 'and supported by the decision, “ that a conveyance by a debtor, whether solvent or insolvent, of all of his property to trustees to pay a portion of his creditors, with a provision that the surplus shall be returned to him, leaving his other creditors unprovided for, is fraudulent and void as to the latter.” And in stating that proposition Judge Earl uses the following language : An insolvent, or even a solvent, debtor cannot convoy all his property to trustees to pay a portion of his creditors, with a provision that the surplus shall be returned to him, leaving his other creditors unprovided' for, because such a conveyance ties up his property in the hands of his trustees and places it beyond the reach of his creditors by the ordinary process of the law, and thus hinders and delays them, and is, therefore, void as to the creditors unprovided for.”

In the case at bar the trial court found that the defendant Valentine at the time of making the mortgage of March 23, 1893, was indebted beyond and in excess of the value of his property, and it is quite apparent from the evidence of the defendant William II. Lockwood that he and his mother, Ann A. Lockwood, knew that fact. In Southerland v. Bradner (116 N. Y. 410) Follett, J., in delivering the opinion of the court, uses this language : A preferential assignment by an insolvent of all his estate in trust for the payment of but part of his creditors, which provides that after paying the creditors named the remainder of the assigned estate shall be restored to the assignor, hinders and delays the unpreferred creditors, and it is void as against them,” and he cites in support of that proposition Goodrich v. Downs (6 Hill, 438); Barney v. Griffin (2 N. Y. 365); Collomb v. Caldwell (16 id. 484).

It can make no difference in principle or in tlie practical effect of sucli an assignment whether the surplus provided for is large or small, or whether indeed there is or is not in fact any surplus; the vice consists in its effect in hindering and delaying the other creditors in the use of the ordinary remedies for the collection of these debts. (Knapp v. McGowan, supra.)

But the respondents urge that the ordinary remedies available to other creditors were not suspended by the giving of this mortgage and the simultaneous execution and delivery of the assignment, and in support of this contention cite Murphy v. Briggs (89 N. Y. 446).

But it will be observed that in that case no trust was created by the mortgagor in the mortgage, for the benefit of other creditors not named as mortgagees, and the mortgage was the ordinary case of a mortgagor giving a mortgage in the usual form to secure the debt due the mortgagee in person, and the mortgage did not, as in this case, create a trust in favor of other creditors.

It is true that the Common Pleas of New York, in Royer Wheel Co. v. Frost (13 Daly, 233), held that a mortgage somewhat like the one under consideration, upon the authority of Murphy v. Briggs, was a valid security. But no such conditions existed in the case of Royer Wheel Co. v. Fielding (101 N. Y. 504), to which we are referred, nor did that case affirm the determination of the New York Common Pleas, in Royer Wheel Co. v. Frost (supra).

It is quite apparent from this transaction that the simultaneous transfer of all of the property of Valentine by this mortgage and assignment was for the purpose of placing the same within the control and at the disposal of the mortgagee and assignee, not only for the purpose of securing and paying their claims, but also for the purpose of securing to the other beneficiaries and cestui gue trusts therein named their claims, to the exclusion of other creditors of Valentine not referred to in those transfers.

The mortgage was to secure debts, some of which were due when it was given, and the mortgagor was in default the moment the mortgage was delivered, so that by operation of law (if this transaction was valid) the title to the mortgaged property vested at once in the mortgagee, subject, of course, to the performance of the trust therein created. This rule has long been well settled, and in Moore v. Prentiss Tool & Supply Co. (133 N. Y. 149) Judge EaRL, in discussing the rights of parties to a chattel mortgage, says: After default in the payment of the plaintiff’s mortgage, whatever title the mortgagor had was vested absolutely, subject to the right of redemption in equity in the plaintiff (mortgagee).”

In the case at bar the mortgagee, availing herself of the title thus acquired, immediately took possession of this property, advertised and sold it to the defendant Wm. II. Lockwood, and thereby cut off all equity of redemption of the other creditors of the mortgagor. Under such circumstances it can hardly be said that the trust created in this mortgage did not Lave the effect to hinder and delay other creditors in the ordinary proceeding for the collection of their debts. The case is not like Royer Wheel Co. v. Fielding (101 N. Y. supra). In that case no trust was created for the benefit of third parties, and the mortgage under discussion then was a real estate mortgage, under which a forfeiture or breach of condition did not work a change of the title as in this case, aud in the discussion of that case Miller, J., says: “ This is the usual clause in every mortgage upon real estate, and as here employed cannot ie regarded as of the same cha/racter as if used in cun assignment of property for the benefit of creditors specialty preferred, in which case it would render the assignment inoperative cmd void.”

In a real estate mortgage the surplus on foreclosure passes to the person entitled to the same under the order of the court. But the surplus provided for in this mortgage is reserved to the mortgagor after the satisfaction of the trust provided for in the instrument itself, and in effect the trustee, who is also mortgagee, is charged with the duty of returning such surplus to the mortgagor, without regard to the rights of other creditors who are not provided for in the mortgage. In no light in which we can examine this mortgage and assignment can we escape the conclusion that a trust is created by this mortgage for the benefit of the mortgagor’s creditors named .therein, and that the surplus is reserved to the mortgagor who makes the transfer and creates the trust for his own benefit.

To allow such a transfer, in the name of a chattel mortgage, to stand in the way of bona fide creditors of the mortgagor or assignor would seem to furnish an easy method for a debtor to transfer his property in a manner that hinders and delays his creditors, and at the same time secure to himself the remainder of his estate in violation of the plain intent, if not of the letter, of the statute.

The trial court finds that at the time Yalentine made this mortgage and assignment he was insolvent and expected to be closed. Under such circumstances, his transfer of all his property was in the nature of a general assignment, and any reservation of an interest in the property assigned to himself rendered the transfers void within the statute referred to.

In Curtis v. Leavitt (15 N. Y. 9) the court holds that where a security is given in the ordinary course of business, with a provision that after the payment of the debt the balance or surplus shall belong to the mortgagor or grantor, no illegal trust is created in the surplus. But the same case holds at page 132 as follows: “But when they are made in favor of an insolvent who winds up his affairs by an assignment of his whole estate, then they have been justly regarded as high and sometimes conclusive evidence of a fraudulent design.” The principle, indeed, which runs through this whole branch of our law is that when a trader or dealer fails, and proposes to put his estate in trust, he must devote the whole of it, immediately and unconditionally, to the payment. It is only on those terms that he is allowed to withdraw it from the ordinary process of the law. He must reserve nothing to himself, but must give all to his creditors.

Upon the facts of this case and within the principle here enunciated, we think that the learned trial judge erred in nonsuiting the plaintiff, and for that error the judgment must be reversed.

HbreicK, J., concurred; PutNam, J., not acting.

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


source: Caselaw Access Project

author: Mayham, P. -J.:

license: Public Domain

text:
    In the Matter of the Application of the People of the State of New York to Review the Determination of the Comptroller in the Matter of the Tax against Tiffany & Co.

      The office of Comptroller of the State of New York is continuous — a writ of certioru/i'i is properly directed to a Comptroller to review the acts of his predecessor — chapter 542 of 1880 and chapter 353 of 1889— basis of the tax assessed on a corporation thereunder.

    The office of the Comptroller of the State of New York is a continuous office, and while the term of office of a particular incumbent may and does, hy the tenure fixed hy law, expire as to such incumbent, the office, nevertheless, devolves on his successor and is perpetual, and such successor succeeds to the records and papers of the office.
    A writ of certiorari is properly directed to the Comptroller of the State under the provisions of section 2129 of the Code of Civil Procedure, although the determination of the Comptroller sought to he reviewed thereby was made hy a predecessor in office of the Comptroller to whom the writ was directed, and the predecessor in office is not a necessary party to the proceeding in order to obtain a review of such determination.
    Chapter 542 of the Laws of 1880 and chapter 853 of the Laws of 1889 are valid provisions of law, and are not in violation of either the State or Federal Constitution.
    When a tax is assessed by the Comptroller upon a corporation, under the provisions of chapter 353 of the Laws of 1889, the basis of the tax, where the corporation is not wholly engaged in carrying on the business of manufacturing within the State, is the amount of the capital employed hy the corporation within the State during the year for which the tax is imposed, including the amount employed by it in manufacturing within the State.
    CertioeaRI issued out of the Supreme Court and attested on the 22d day of January, 1894, directed to the Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all his acts and proceedings,- and all the acts and proceedings of record in his office relative to the assessment of the corporation “ Tiffany and Company,” with all other papers, evidence, documents and records pertaining to such assessment, and to the revision and resettlement of the same.

      Oha/rles E. Miller, for Tiffany & Co.

      N. W. Norton, for respondent Campbell, late Comptroller.

      Theodore E. Hanooch, Attorney-General, and John W. Hogcm, Deputy Attorney-General, for respondent Roberts, Comptroller.
   Mayham, P. -J.:

This is a certiorari sued out by the People on the petition of the Attorney-General to review the determination of the Comptroller made on the readjustment of a tax levied by the Comptroller against Tiffany & Co., a manufacturing corporation incorporated under chapter 40 of the Laws of 1848, and as such exempted from taxation under chapter 542 of the Laws of 1880, and the various acts amendatory thereof and supplemental thereto, prior to the enactment of chapter 353 of the Laws of 1889.

Under the last-mentioned act Frank Campbell, late Comptroller, during his term of office, assessed such corporation, and on a readjustment of such tax on the application of the corporation fixed the aggregate tax for the years 1889, 1890 and 1891 at the sum of $6,000, and determined that the corporation was exempt from taxation prior to that time under the act of 1880.

Ve have at this term determined that this corporation is liable to be taxed for the three year’s above designated. (The People ex rel. Tiffany & Co. v. Campbell, late Compt., and Roberts, Comp.

The certiorari now under consideration seeks to increase the amount of tax as fixed by the Comptroller on such readjustment from $6,000 to $36,000 on .the ground that the late Comptroller erred in settling the amount of the same.

"We shall not repeat here the considerations which led us to hold this corporation taxable under the provisions of chapter 353 of the Laws of 1889, but regard that determination as an authority in support of the right of the Comptroller to impose a tax in this case.

It is objected by Tiffany & Co. that Frank Campbell, the late Comptroller, is a necessary and proper party to this certiorari, as it was his determination that is being reviewed, and that no proper determination can be had unless an opportunity is given him to be heard by his answer.

This contention is made under the provision of section 2136 of the Code of Civil Procedure, which provides as follows : “A writ of certiorari may be issued to and a return to a writ of certiorari may be made by an officer whose term of office has expired. Such an officer may be punished for a failure to make a return to the writ as required thereby, or to make a further return as required by an order for that purpose.”

The writ in tliis case runs to the Comptroller and is answered by him in his official character, the incumbent of the office having-changed between the time of making the assessment and that of suing out the writ.

Section 2129 of the Code of Civil Procedure provides that “ The writ must be directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record, or other papers to be certified, or to both if necessary. * * *

The office of Comptroller of the State is a continuous office, and while the term of office of a particular incumbent may, and does by the tenure fixed by law, expire as to such incumbent, the office, nevertheless, devolves on his successor and is perpetual, and such successor succeeds to the records and papers of the office.

The writ of certiorari was, therefore, properly directed to the Comptroller of the State under the section of the Code last quoted, and it is elementary that those récords are the best evidence of the acts and decisions of the Comptroller during a former term of the incumbency of that office, and although this writ may in some cases issue to an officer whose term of office has expired, as provided in section 2136 of the Code, we do not think it applies to a case of this kind.

Section 20, added by chapter 463 of the Laws of 1889 to chapter 361 of the Laws of 1881, authorizes the Attorney-General to review by certiorari the action of the Comptroller in any revision or resettlement of a tax, and if the revision or resettlement be found erroneous, the court by that section is authorized to correct and restate such accoimt. The acting Comptroller, being the custodian of the records of his predecessor, can, without any aid from his predecessor, answer to the writ from the records of his office, and we can see no reason under such circumstances for making such predecessor a party to the writ. We cannot assume, as is suggested by the counsel for Tiffany & Go. by their brief, that there will be collusion between the Attorney-General and an incoming Comptroller to discredit the acts of their predecessor.

It is also objected in the preliminary objection of Tiffany & Co. to this writ, that the act under which this tax is imposed is in violation of the State and Federal Constitutions.

We do not think that this is any longer an open question.

People v. Home Ins. Co. (92 N. Y. 328); People v. Horn Silver Mining Co. (105 id. 16), establish its constitutionality under tlie State Constitution, and Home Ins. Co. v. New York (134 U. S. 594) bolds that the act of 1880 does not violate cmy provision of tlie Federal Constitution.

This brings ns to tlie consideration of this certiorari upon the merits. Was the tax as assessed by the -Comptroller sufficient in amount under tlie evidence ?

The Comptroller assumed as the basis of his computation that the company was liable to taxation for the amount of its capital employed in its business in the State, outside of its manufacturing business, for tlie years 1889, 1890 and 1891, but exempted from taxation its capital employed in its manufacturing business in the State for those years.

The Attorney-General insists that he should have imposed the tax for those years upon its whole capital employed in tlie State, as it had not been wholly engaged in carrying on manufacturing business within this State. There is great force in the contention of the Attorney-General upon this point, and we are inclined to hold that he is correct. The real question, therefore, for the Comptroller to determine, after reaching the conclusion that this corporation was taxable, was as to the amount of tax to be imposed. That determination must be based upon the amount of capital employed in this State by the corporation during the years for which the tax could be imposed, including the amount employed in manufacturing within the State.

The amount of tax assessed and levied by the Comptroller was erroneous, and must be set aside, and the Comptroller must be ordered and directed to levy and impose the tax upon the basis of all the capital employed by the corporation in this State during the three years for which this tax was levied. As this controversy arises between State officers, no costs are allowed to either party.

PittNam, J., concurred; HerRIck, J., not acting.

Determination of Comptroller reversed, without costs, and case remanded to Comptroller to. reassess in accordance with terms of opinion.

       See ante, page 95.


text:
    William A. Drake, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      legal presumption that a railroad company furnishes sufficient lights and competent employees — declm’ation of a braheman — violation of rules — liability of the company for injuries sustained by an employee.

    Where, upon, the trial of an action brought against a railroad company, the only evidence that the defendant failed to furnish sufficient and suitable lamps, was the testimony of the plaintiff as to the declaration of the defendant’s brakeman to that effect, the burden of proving the contrary is not thereby cast upon the defendant, nor is the legal presumption that competent and sufficient servants were employed by the railroad corporation overcome.
    Where a railroad corporation adopts adequate rules governing' the conduct of its employees, if an employee is injured by the failure of his co-employee to observe such rules, the injury results from the negligence of his co-employee, for which the employer is not liable.
    Appeal by the plaintiff, William A. Drake, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 29th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial at the Schenectady Circuit before the court and a jmT-

      JS. F. JBullcurd, for the appellant.

      Hamilton Harris, for the respondent.
   Mayham, P. J.:

There was no evidence in this case of negligence on the part of the defendant which would justify the submission of that question to the jury.

The only evidence relied upon by the plaintiff to establish the fact that the defendant failed to furnish sufficient and suitable lamps, was the testimony of the plaintiff of the declaration of the defendant’s brakeman. That was clearly hearsay and amounted to no proof of the fact, and cast no burden upon the defendant of proving the contrary or negativing that unsworn statement. It did not overcome the legal presumption that competent and sufficient servants were employed by the defendant. (Potter v. N. Y. C. & H. R. R. R. Co., 136 N. Y. 77.)

Nor does the testimony of the plaintiff, that he saw no light and heard no torpedoes explode, overcome that presumption. The company had furnished adequate rules governing the conduct of its employees, and if the co-employees of the plaintiff failed in the observance of those rules, and the plaintiff was injured for want of such observance, it was the consequence of the negligence of the co-employees, for which the defendant is not liable.

There was, therefore, nothing to be submitted to the jury, and the learned trial judge properly dismissed the plaintiff’s complaint.

PutNAM and HerrioK, JJ., concurred.

Judgment affirmed, with costs.


text:
    Gilbert Newton, Respondent, v. The Central Vermont Railroad Company, Appellant.

      Sailroad corporation ■ — •failure to place a chain across the opening in the platform, at the end of a car — sudden movement of a train — intoxication of a person injured — not contributory negligence per se —passenger in a railroad car leaving his seat therein — when not negligent.

    The failure of a railroad corporation to place a chain or similar harrier across the opening in the railing at the end of the platform of a passenger coach in a train, when a freight car is next to such coach, is a fact from which a jury, in case of an accident, may impute negligence to the corporation.
    In an action brought against a railroad corporation to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, it is for the jury to determine whether, after the conductor had invited passengers to alight therefrom by calling out the name of a station, there was a sudden jerk or movement of the car, which caused the accident, and whether negligence was attributable to the railroad company by reason thereof.
    The fact that a person was intoxicated when he sustained,an injury is not per se evidence of contributory negligence on his part, and the question whether the intoxication of the person injured contributed to the injury sustained should be submitted to the jury for its determination.
    An attempt to board or alight from a moving train is negligence per se, but the fact that a passenger in a railroad car left his seat and moved towards the door of the car, not, however, attempting to alight therefrom, after the calling out by the conductor of the name of the station which was his destination, is not such negligence as will preclude him from recovering damages from the corporation for injuries sustained by reason of the sudden jerking of the train.

      Appeal by the defendant, Tlie Central Vermont Railroad Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of tlie county of Franklin on tlie 13tli day of December, 1893, upon the verdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s, office on the 13th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Louis llasbrouck, for the appellant.

      Badger <& Ide, for the respondent.
   Mayham, P. J.:

The plaintiff was a passenger on one of the defendant’s passenger cars, for which he held a passenger ticket from Marion to Bombay, two stations on defendant’s railroad. As the train approached Bombay the ’conductor announced the name of the station, and the train slowed up, and the plaintiff with other passengers started for file door of the car to alight on reaching the door. The evidence tends to prove that the coach was suddenly jerked, and the plaintiff precipitated across the platform between the ends of the guard rails, between the ends of which the chain which is usually extended from the end of one railing or guard to the other was at that time unhooked, and plaintiff fell between the passenger car on which he was riding and a freight ear which was hauled in that train, andwvas injured. Two questions are presented in this, as in most appeals of this character:

First. Did the plaintiff on the trial prove any negligent act or omission on the part of the defendant for which the jury were justified in finding it liable to the plaintiff for the injury complained of ?

Second. Did the plaintiff by the proof establish his freedom from contributory negligence ?

The evidence relied upon by the plaintiff to establish negligence of the defendant was the proof that no chain or bar was placed between the ends of the guard or railing on the outer edge of the platform across the passageway from one car to another to prevent the plaintiff and other passengers from falling between the cars in case of any sudden and unexpected movement of this passenger coach while passengers were on the platform for the purpose of alighting from the train.

It is a well-known fact that passenger coaches, where no other means of protection are provided to prevent passengers from falling between cars through the space between the railings or guards at the outer edge of the platform, have chains which may be extended from one rail to the other, thus forming barriers, as a prevention against such accidents. We think that the failure of the defendant to have in place such barriers at the time of this accident was a fact from which the jury might impute negligence to the defendant. (Fiero v. N. Y. C. & H. H. R. R. Co., 71 Hun, 213.)

It was, we think, a question of fact for the jury under the circumstances of this case, and their determination upon that question should not be disturbed on this appeal.

It is also insisted that there was a sudden jerk or movement of the cars after the conductor had invited passengers to alight by calling out the name of the station, which precipitated this accident, for which the defendant is responsible.

On the part of the defendant it is insisted that that movement was necessarily incident to the movement of a mixed train composed of freight and passenger cars, such as the train in question, and that the defendant is not responsible for such unavoidable incident in this case.

That too,- we think, under the circumstances of this case, was a question for the jury, and was properly left to them for determination.

The jury having found for the plaintiff, there is sufficient evidence in the case to uphold their verdict. (Curry v. Gleason, 71 Hun, 613; Millott v. N. Y. & N. E. R. R. Co., 46 N. Y. St. Repr. 145, 146.)

But it is insisted on the part of the defendant that the plaintiff failed to establish freedom from contributory negligence, and that the evidence of the intoxication of the plaintiff was of itself proof of contributory negligence, which should preclude him from a recovery in this case. That question having been submitted to the jury under proper instructions from the court, we do not see how their determination can be disturbed on this appeal.

We cannot hoklthat the bare fact of intoxication, as proved upon this trial, is evidence of negligence per se, which contributed to the accident; and we think it was properly submitted to the jury by the learned trial judge, for them to determine whether or not it contributed to the injury complained of.'

It is also urged that as the plaintiff left his seat while the train was in motion he by that act was guilty of contributory negligence. It has been frequently held that an attempt to board or alight from a moving train is negligence per se. Rut the evidence in this case only discloses that the plaintiff arose from his seat and was moving towards the door, but was not alighting from, the car. We cannot hold that what he did in this case, in moving towards the door of the car after the name of the station was announced by the conductor, was, as matter of law, such negligence as would preclude a recovery.

It is also insisted that the judge erred in his charge to the jury, and that for that this judgment should be reversed.

The only exception taken by the defendant to the charge was to his refusal to charge, as requested by the defendant, on the question of plaintiff’s intoxication. We think the judge’s refusal to charge, as requested, and his qualification of such refusal, were both correct.

The judgment should, upon all the questions raised, be affirmed.

PutNam and HeeRIOK, JJ., concurred.

. Judgment affirmed, with costs.


text:
    Isaac M. Van Patten, Respondent, v. Schenectady Street Railway Company, Appellant.

      Mectñc street railway ■ — • awe in operating its road — in/jury to one driving across its tracks — proof of negligence required. •
    It is the duty of a corporation operating, by electricity, a surface railroad in a city to use all the care and caution that a proper regard for the safety of those traveling upon the public highway requires, consistent with a proper enjoyment by it of its franchise and the right to successfully operate its road.
    It is the duty of a person driving upon a public highway to look and listen When approaching the track of a surface railroad operated by electricity, before attempting to cross the same.
    In an action brought to recover damages sustained by reason of the alleged negligence of another, the plaintiff, in order to recover, must prove negligence on th<j part of the defendant, and freedom from contributory negligence on his part.

      Appeal by tlie defendant, tlie Sclienectady Street Railway Company, from a judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 9th day of January, 1894, upon the verdict of a jury, and also from an order made on the 8th day of January, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      De JRemer & Angle, for the appellant.

      John JD. JMJiller, for the respondent.
   Mayham, P. J.:

The plaintiff, while crossing the railroad track of the defendant’s railroad, with his horse and wagon, was hit by a motor car and sustained injury to himself, his horse and wagon, harness and servant, who was riding with him, for which he brought this action.

The action was prosecuted upon the theory that the injury was produced by the negligence of the defendant’s servants in running the motor. The defendant denies any negligence on its part, and alleges the contributory negligence of the plaintiff.

The track of the defendant’s railroad runs up Kruise avenue to the intersection of that street with Campbell avenue, when the track curves into and extends up the latter avenue.

On Kruise avenue there are two wagon tracks, one on either side of the railroad track. On tlie evening of the accident the plaintiff was, at about half-past eight o’clock, driving up Kruise avenue on the right hand side of the railroad, and at the curve of the railroad track, at the junction of these two avenues, the plaintiff, while attempting to cross the railroad track, was struck by a motor and injured. .

Two grounds of negligence are charged by the plaintiff against the defendant:

JFirst. The rate of speed at which the motor was running at the time of the collision.

Second. The failure to give, the proper warnings and signals at the crossing at which the plaintiff was hit.

The evidence does not disclose that the motor in question was running at an unusual, excessive or dangerous rate of speed; upon the whole evidence not to exceed four or five miles an hour. Nor does a fair construction of the evidence justify the finding that the defendant was guilty of negligence in not giving suitable warning of the approaching of the motor to the junction of Kruise and Campbell avenues. There seems to be no statutory requirement that the defendant shall give a warning, or maintain a flagman at that point. At the same time it was doubtless the duty of the defendant to use all the care and caution that a proper regard for the safety of the traveler on the public highway would require, consistent with the proper enjoyment by the defendant of its franchise, and the right to successfully operate its road. It is true that the plaintiff testifies that he heard no bell sounded on the approaching motor. But the defendant proves by several witnesses that a gong was sounded on the car from above the junction on Campbell avenue until the time of the collision.

This is established by the positive affirmative evidence, and if untrue, the witnesses who testified to it must have committed deliberate perjury, while the evidence of the plaintiff, that he heard no boll, is of a negative character, and admits of the construction that the bell might have been sounded and he not have heard it, without charging him with intentional or willful falsehood.

Under such circumstances, we do not think the evidence justified the finding by the jury that the defendant was guilty of negligence in running its motor, for which it can be held liable. But if that was such a disputed question of fact that this court should not, on appeal, interfere with the verdict of the jury, still we think that the plaintiff failed to prove freedom from contributory negligence. He was familiar with this crossing. The railroad track was visible for a sufficient distance up Campbell avenue from the crossing to have enabled the plaintiff to have seen the approaching motor before the collision, if he had looked and listened.

It is true that at the immediate point of crossing there was a building which hid the railroad track from one passing up Kruise avenue, but that fact called upon the 2Dlaintiff for greater caution,, and seemed to make it his duty to have looked up Campbell avenue when he was in a position to have done so, for a distance of 200 feet before reaching the White House, and if he had done so he must have seen the approaching motor in time to have stopped his horse* which Avas on a slow walk and could easily have been controlled* and thus the accident averted.

The principles Avhich govern this class of eases are too familiar to require citation of authorities.

The plaintiff must prove negligence on the part of the defendant, and freedom from contributory negligence on his own part.

Upon the evidence in this case we think he failed in both particulars, and that the learned judge erred in denying the motion of the defendant to dismiss the complaint, and also the motion to set aside the verdict on defendant’s motion.

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

Putnam and Herrick, JJ., concurred.

Judgment reArersed, new trial granted, costs to abide the event.


author: M ayham, P. J.:

text:
    Sarah Russell, Respondent, v. George Willette, Appellant.

      Action for the conversion of hay taken from land in defendant’s possession — the remedy is by ejectment.

    In an action brought to recover the value of a quantity of hay which the plaintiff alleged that the defendant had wrongfully converted to his own use, the answer denied the conversion and set up title in the defendant, alleging that the hay •was tlie product of land owned by the defendant’s principal, and that he took the hay by virtue of authority from the owner of such land.

      Held, that as the evidence given upon the trial disclosed that the plaintiff had for many years been in the possession of the land from which the hay was cut, and was in the possession of the same at the time of the cutting and gathering of such hay, a judgment in favor of the plaintiff would not be reversed;
    That if the defendant’s principal had a better title to the land than the plaintiff, it must be asserted in an action of ejectment in which the principal could be fully indemnified for mesne profits.
    Appeal by the defendant, George Willette, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of Franklin on the 15th day of December, 1893, upon the Arerdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on the 13th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Chrnles A. Pttrlce, for the appellant.

      John P. Relias, for the respondent.
   M ayham, P. J.:

The plaintiff prosecuted this action to recover the value of a quantity of hay which she alleges that the defendant had wrongfully converted to his own use.

The answer of the defendant denied the conversion, and set up title in the defendant, alleging that the hay was the product of land owned by his principal, and that he took the hay by virtue of authority from the owner of such land. The evidence disclosed that the plaintiff for many years had been in the possession of the land from which the hay was cut, and was so in the possession at the time of cutting and gathering the hay.

We do not deem it necessary in this case to discuss the question of the title to this land on this appeal.

It is by no means clear that the plaintiff was not, by virtue of the trust deed under which she took possession of this land, entitled to retain the possession of the same, as that trust was coupled with the duty of supporting the cestui que trust. But we dp not decide that point.

It is enough for the purpose of this action that the plaintiff was in possession of this land and the hay for which the action was brought.

If the defendant’s principal has a hetter title, she must assert it in an action of ejectment, when she can be fully indemnified for mesne profits.

We see no error, either in the rulings of the trial judge on the receipt of, or rejection” of, evidence, or in his direction to the jury, or refusal to set aside their verdict.

The judgment must be affirmed, with costs.

PutNAM and Hebkick, JJ., concurred.

Judgment affirmed, with costs.


author: PER. CuKTAM :

text:
    Mary E. Ward, Respondent, v. George B. Boyce, Appellant.

      Property subjected to seizure to pay debts — action on a promissory note — when a foreign judgment is not a bar thereto.

    Real and personal property may be subjected to seizure and sale for the payment of the debts of the owner, according to the laws of the State or sovereignty where the property is, but regard must be had to the fundamental condition that • due process of law shall precede the appropriation. There must be notice, either actual or constructive, to the owner and an opportunity afforded him to be heard, in such way and in such form as the law may prescribe.
    It is not a defense to an action brought upon a promissory note, that in an action previously brought in another State against the husband of the plaintiff in the subsequent action, such note was adjudged to be the property, not of such plaintiff, but of her said husband, when the defendant in the prior action was not notified of the commencement thereof and was in ignorance of the pendency of the same, even though a notice was served upon the payee of the note in question [the plaintiff in the subsequent action] directing her to appear in the foreign action and prove her claim to the note, which she failed to do.
    Appeal by tlie defendant, George B. Boyce, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the oth day of March, 1894, upon the decision of the court rendered after a trial at the Washington Circuit before the court without a jury.
    The opinion of the trial court was as follows:
    Kellogg, J.:
    The complaint in this action is upon a promissory note for the sum of $150, made by the defendant payable to the plaintiff or her order. The answer in substance alleges as a bar to the recovery on the part of plaintiff a judgment rendered before a justice of the peace in the State of Yermont, in an action there brought by one Alonzo Herrick against M. Eugene Ward, the husband of this plaintiff, and claims that the justice determined that the note in question was not the property of the plaintiff in this action, but the property of her said husband, M. Eugene Ward.
    The record of that proceeding before the justice shows that M. Eugene Ward at the time of the commencement of the action and at the time of the rendition of the judgment, was a resident of Granville in the county of Washington and State of New .York. That tlie plaintiff in tliat action, Alonzo Herrick, was a resident oí Poultney in the county of Rutland and State of Vermont.
    The record further shows that no process or notice of #nyldnd of the proceedings pending before the said justice was ever given to the defendant M. Eugene Ward. That no summons was published and no personal notice given to the defendant is shown. On the contrary, it is shown that the entire proceedings before the said justice were taken while the defendant 1VL Eugene Ward was wholly ignorant that any such proceedings were pending.
    The record of such proceedings further shows that the justice rendered a judgment against the said defendant for the sum of $172.45 damages, and costs $4.34.
    The record of the proceedings further shows that the defendant in this action, George B. Boyce, was a resident of the State of Vermont. That an attachment or trustee process was issued by the said justice and served upon the said George B. Boyce hi the said State of Vermont on the 26th day of September, 1893, attaching whatever of indebtedness was owing by the said George B. Boyce to M. Eugene Ward. And thereafter, and on the 9th day of October, 1893, the said George B. Boyce appeared in said court and hied an affidavit whereby he disclosed to the said court that on the 4th day of September, 1893, he made the note in question in this action and says: “ At said defendant’s place in Granville, N. Y, I purchased several head of cattle for the price of $200, paying fifty dollars down. Mrs. Mary E. Ward claimed to own the cattle, and the sale to me was made in her name, although her husband (the defendant in that action) was present. I gave to Mrs. Ward my note payable to her for $150, payable one day from date. Said note is unpaid.” He also discloses in said affidavit that no other property of any kind of the defendant’s was in his possession, and he further asks that the said Mary E. Ward be cited to appear as claimant. The record further shows that these proceedings were then adjourned until November 27, 1893, and a citation was issued and the officers were directed to serve the same not less than six days before the 27th of November, 1893, upon Mary E. Ward, in substance requiring her to come in and make contest as to the ownership of the said note. The proceedings further show that such citation was served upon Mary E. Ward at Montpelier, in the State of Vermont, on the 21st day of November, 1893, personally, and tliat she did not appear or make any contest before the said justice touching the said note or its ownership. The record further shows that upon default of appearance of said Mary E. Ward the said justice on the 27th day of November, 1893, rendered a judgment against the maker of the said note, George B. Boyce, in favor of the said Alonzo ITerrick, a creditor of this plaintiff’s husband, for the amount of said note, $150, and interest.
    It appears by the papers that prior to the rendition of such judgment against the defendant herein by the said justice, this action had been brought in the county of Washington and State of New York and personal service of -summons and complaint herein had been made upon George B. Boyce, to wit, on the 21th day of October, 1893, and the record of the proceedings before the said justice does not disclose this fact, or that the said George B. Boyce made known the fact of the pendency of this action to the said justice, or asked to have a stay of the proceedings before the said justice until the determination of this action pending in the Supreme Court in Washington county in the State of New York.
    The facts in this case present something more than can be found in the facts of any reported case to which my attention has been directed. It not only discloses the fact that the Justices’ Courts in the State of Yermont assume the right to render judgments against debtors, residents of the State of New York, without giving them any notice whatever of the proceedings before them, either by publication or by personal service within or without the State; but discloses that such justices assume the additional power of determining, as to third parties, residents in the State of New York, any controversy respecting the claims of said third persons touching property ■which may be attached in the State of Yermont by the process of such justices in actions against others, and the right to bring in such parties and exercise the powers of a court of equity in determining as to such ownership, and as to any fraud which may have been practiced in acquiring a title to such property, all in the same action.
    To a practitioner in the State of New York these powers of a justice of the peace in the State of Yermont appear to be largely in excess of the powers vested in the Supreme Court of this State, either equitable or legal in a single action, but without passing upon the question of whether the Legislature of the State of Yermont may or may not vest such functions, all in a single action, in a justice of the peace within its jurisdiction, it seems to me that these proceedings before the justice are fatally defective. It is obvious that unless a judgment could have been rendered in that proceeding before the justice in the town of .Poultney which would have been a valid judgment against the party trusteed, namely, George IB. Boyce, that the action there must wholly fail; that there could have been no lawful determination of the question as to whether the plaintiff in this action, Mary E. Ward, was in fact the owner of said note. On the assumption, then, that the indebtedness of George B. Boyce was am, indebtedness running to M. Eugene Ward, the husband of this plaintiff, and not to this plaintiff herself, the judgment there would be no protection to George B. Boyce in any action commenced in the State of New York against George B. Boyce in the name of M. Eugene Ward. The facts in such case are exactly the facts in Martin v. The Central Vermont Railroad Company (reported in 50 Hun, 341), in which the court distinctly holds that such a judgment is void by reason of the 14th amendment to the Constitution of the United States, which says: “ Nor shall any State deprive any person of life, liberty or property without due process of law.” In this case as in that, no notice whatever was given to M. Eugene Ward, the alleged debtor, of the proceedings before the justice. In this case as in that, the notice of attachment was served upon M. Eugene Ward by the delivery of a copy to the party trusteed, namely, George B. Boyce. In this case as in that, no notice whatever of the pending proceedings was given toM. Eugene Ward, the alleged debtor. All the facts, indeed, are similar in all particulars to the facts set forth in the case reported. Little if anything can be added to the clear discussion of the subject entered into in the opinion of LearNed, P. J., and LaNDON, J., as reported in that action. It is, therefore, unnecessary to here discuss the subject; a simple reference to that case and the opinions therein written is sufficient.
    The case of Martin v. The Central Vermont Railroad Co. has not been reversed, nor the principles therein enunciated in any manner overruled, so far as I have been able to discover. In fact this case lias been several times since quoted and approved, and must be taken to be tlie law until some liiglier court shall decide otherwise.
    In Douglass v. Phoenix Ins. Go. (138 N. Y. at page 218) Justice ANdeews uses this language : “ Real and personal property may be subjected to seizure and sale for the payment of debts of the owner, according to tlie laws of tlie State or sovereignty where the property is, having regard to the fundamental condition that due process of law shall precede the appropriation. * * * There
    must be notice and an opportunity to be heard, either actual or constructive, in such way and form as the law may prescribe.” I have not entered into the question, because it does not seem necessary, as to where the situs of the negotiable promissory note sued upon in this action actually was at the time of the pretended attachment by the justice’s process in Yermont. The note was executed in the State of New York. It is dated in the State of New York. The payee, the plaintiff in this action, was then residing and resides now in tlie State of New York. Whether under such circumstances any process issued out of a court in the State of Yermont could reach this note is a very serious question. Referring to this question the language of Justice Andrews in Douglass v. Phoenix Ins. Go. (138 N; Y. at page 219) is applicable, namely: “ It is at least doubtful whether this qualification of the general rule applies to negotiable instruments or other written obligations of a resident debtor, held by and in possession of his non-resident creditor.”
    In fact the case of Osgood v. MagiAre (61 N. Y. 524) is authority against the proposition that the situs of negotiable paper can ever be determined by the laws of a State to be at the residence of the^ debtor, where the owner of such paper resides in another State, and such paper is made payable in such other State.
    This seems to me to dispose of the whole contention on the part of the defendant; for if the judgment rendered by the justice in Poultney, Yermont, which is set up in the answer as a bar to this action, is void so far as such judgment relates to 1VI. Eugene Ward, certainly the equitable part of such judgment determining that this note belongs to the said ll. Eugene Ward and not the plaintiff herein is also void.
    The plaintiff makes many objections to the record of these proceedings other than the one to which I have referred. I have not, however, given attention to such objections, nor have I passed upon them, for the reason that upon the merits and on the grounds stated I find that in no event can the Yermont judgment be a defense in this action.

      Potter cfe Lillie, for the appellant.

      0. F. c& II. P. Pa/ois, for the respondent.
   PER. CuKTAM :

"We have carefully examined the facts of this case, the authorities cited by the learned' counsel for the respective parties, and the very able opinion of the learned trial judge, and have reached the conclusion that the judgment should be affirmed upon that opinion.

Present — Maxi-iam, P. J., PutNam and IIeeriok, JJ.

Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Ferdinand W. Chase v. Edward Wemple, as late Comptroller, and Frank Campbell, as Comptroller, of the State of New York.

      Tax sales — redemption therefrom under chapter 427 of 1855, as amended by chapter 556 of 1890 — duty of a person desiriwj to redeem —affidavits, may be used on an application to redeem— review of the Comptroller's determination by certioraH.

    The right of on owner of property sold for the non-payment of taxes to redeem the lands from the tax sale, through an application to the Comptroller, is a purely statutory right, and the powers and duties of the Comptroller upon an application to redeem are all regulated by statute.
    If, upon an application to redeem lands from sales for the non-payment of taxes, the Comptroller has jurisdiction of the parties and of the subject-matter of the proceedings, expressly conferred on him by statute, the courts are not permitted to look beyond the proceedings taken by and before him in determining the validity of his acts, for the purpose of subserving some supposed equities that may seem to exist in favor of one or the other of the parties, not embraced within the letter or spirit of the statute.
    A redemption of land from a sale thereof for the non-payment of taxes can only be made in the manner indicated by section 74 of chapter 427 of the Laws of 1855, as amended by chapter 556 of (he Laws of 1890; the limitation of time for making the application depends upon the purchaser under the tax sale having served the notice specified in section 68 of chapter 427 of the Laws of 1855, and it requires the service of that notice to set the Statute of Limitations running.

      A party having a right to redeem may do so at any time within the six years allowed for the redemption, if the purchaser, or person claiming under him, shall have failed to serve notice of such sale on the occupant or occupants of the land, and to file evidence of such service in the Comptroller’s office as provided by section 08 of said act.
    If the occupant, or any other person interested in the land, shall fail to file in the Comptroller’s office within one year after the taking effect of such act, a written notice of such occupancy, together with an application for the redemption of such lands, and to furnish the Comptroller satisfactory evidence of the occupancy, and make such redemption within two years after the taking effect of such act, then the tax sale, and any conveyance made after the filing in the Comptroller’s office of evidence of the service of notice of the sale and conveyance, will become absolute, and the occupant, and all other persons interested in the land, will be forever barred unless the same is redeemed according to the provisions of such section.
    Affidavits showing the occupancy of land at the time it was sold by the Comptroller for the non-payment of taxes are admissible before the Comptroller on an application to redeem the same, and it is his duty to pass upon the sufficiency thereof.
    The decision of the Comptroller, in an application to redeem lands sold fair the non-payment of taxes, that such lands were occupied at the time of the sale thereof, is a determination by him of a question of fact, and the Supreme Court, in reviewing by certiorari his action and determination, will not reverse his decision upon the facts unless it is entirely unsupported by the evidence or against the clear weight thereof.
    Certiorari issued out of tlie Supreme Court and attested on the 28th day of March, 1893, directed to Frank Campbell, Comptroller, and Edward Wemple, late Comptroller, of the State of New York, commanding them to return to the office of the clerk of the county of Albany all their proceedings, decisions and actions in relation to the redemption of lot 181, township 10, Old Military Tract, from the tax sales of 1871, 1877 and 1881, and all evidence, documents, records and papers submitted to them or on file in the office of the Comptroller of the State of New York in relation to the same.

      T. F. Conway, for the relator. '

      G. H. Beckwith, for Charlotte C. Hall.
   Mayham, P. J.:

On the 28th of March, 1893, a writ of certiorari was sued out of the Supreme Court on the petition of Ferdinand "W". Chase, directed to Prank Campbell, Comptroller, and Edward Wemple, late Comptroller, of tlie State of New York.

To this writ separate returns were made by the Comptroller and late Comptroller, and such returns, together with the petition, disclose that in the years 1871, 1877 and 1881 the tract of land in controversy was sold for unpaid taxes, and at each sale was bid in by the State, and a conveyance therefor was duly executed by the Comptroller to the State. That about the 30th of March, 1882, the State of New York, by letters patent,.granted and conveyed all of its interest in such lands, and soon thereafter assigned to the relator the certificate of sale for 1881, and the íelator thereupon entéred into possession of the land so conveyed to him. About the 15th day of June, 1889, Charlotte Gf. Ilall caused an application in her behalf to be made to Edward "Wemple, then the Comptroller of the State, to redeem the lot of land in cpiestion from such tax sales on the ground that the same or some portion thereof was actually occupied at the expiration of the time to redeem from such sale, and that notice had not been served on such occupant, and the relator appeared before the Comptroller by his counsel in opposition to such motion to redeem.

Pending the application for redemption, and before the same was determined, Charlotte G-. Ilall commenced an action of ejectment against the relator to recover the possession of this land.

It is insisted on the part of the relator, and there is some proof in support of -that contention, that, pending that action and before the determination of the motion for the redemption of this land was made, there was an understanding or agreement between the Comptroller or his deputy and the relator, that, as the ejectment suit would determine effectually the right of Hall to redeem, no action would be taken on this application to redeem until the determination of that action, and the petitioner alleges in his petition that, relying upon such understanding, he submitted no affidavits to the Comptroller in opposition to the motion to redeem.

The case discloses that that action was tried December, 1890, and resulted in the determination by the trial court against the plaintiff and in favor of the relator herein, and judgment "was entered accordingly on the 18th day of September, 1891, and that no determination of the motion to redeem these lands was made by Comptroller Wemple during His term of office, but that his successor, Comptroller Campbell, on the 28th day of November, 1892, granted such application to redeem on the ground that lot No. 181 was actually occupied on September 23, 1873, October 18, 1879, and November 23,, 1883.

After procuring the allowance of such redemption, Charlotte G. Hall moved for a new trial of the action of ejectment, under section 1525 of the Code of Civil Procedure, which motion was granted February 23, 1893.

The return of Comptroller Wemple discloses that after the judgment in favor of the relator in the ejectment case, one of relator’s-attorneys informed the deputy comptroller of the judgment in favor of the relator in that action, and that the deputy informed such attorney that such judgment was practically conclusive against the rights of the applicant to redeem.

The return of Comptroller Campbell shows that he entered upon the duties of his office January 1, 1892; that he found pending in his office the application of Monroe Hall, dated June 15, 1889, to-redeem lot No. 181 from the tax sales of 1871,1877,1881 upon the ground that the land was occupied at the expiration of the two years allowed by law for redemption from each of said sales, and that notice had not been served upon the occupant, and that in support of such application there were on file with the same four affidavits to establish the facts upon which the application was grounded, and no-affidavits were on file or submitted by the relator Chase in opposition to such motion, and that no proof was submitted by Hall that notice had been given to Chase of the application to the Comptroller to redeem, nor did the Comptroller give him any such notice. The return also shows that Comptroller Campbell on his own motion, and without notice from him to either party, on the 28th of November, 1892, made an order allowing the redemption as asked for by the application.

Upon these facts the relator asks upon this certiorari that the order of the Comptroller, allowing a redemption of these lands, be set aside.

Charlotte G. Hall, who made the application in this case to redeem, through her father, Monroe Hall, as her attorney, claims to-be owner of this lot through a deed from the original patentee thereof. The ease does not disclose that she had any notice of the talks or understanding between Comptroller Wemple or his deputy and the relator as to the effect of the ejectment action upon these 2>roceedings, nor was Comptroller Campbell informed of the same.

The right of Miss Hall to redeem upon these tax sales, through an a2>plication to the Comptroller, is purely a statutory right, and the powers and duties of the Comj>troller, upon an ap2fiication to redeem, are all regulated by statute; and while it is true that the party claiming rights under such a statutory proceeding must show that the requirements of the statute have been strictly complied with, it is equally true that when, by a strict compliance with the requirements of the statute, rights have been established and fixed, the courts, when applied to for that purpose, must protect the party in the enjoyment of such rights.

Nor do we think that in a strict statutory proceeding of this character the court can look beyond the plain requirements of the statute for the purpose of subserving some supposed equities that may seem to exist in favor of one or the other of the parties not embraced within the letter or spirit of the statute.

The Comptroller, having jurisdiction of the parties and subject-matter of these proceedings to redeem, expressly conferred on him by statute, we are not permitted to look beyond the proceedings taken by and before him in determining the validity of his acts.

Section 74 of chapter 427 of the Laws of 1855, as amended by section 1 of chapter 556 of the Laws of 1890, provides as follows: tc In all cases of tax sales heretofore made by the Comptroller, where the land sold was in the actual occupancy of any 2>erson at the expiration of the two years,' * * """ shall become absolute,” etc.

This amended section is a qualification of the provision of the act of 1855, under which a redemption from a tax sale was allowed, and a redemption can now be made only in the manner indicated by section 74 of that act, as amended by the Laws of 1890. The limitation of time for making an a25plication seems to be made to depend upon the 23urchaser under a tax sale serving the notice specified in section 68 of obiter 427 of the Laws of 1855, and it requires the service of that notice to set the Statute of Limitations running, and a party having a right to redeem may do so at any time within the six years allowed for the redenrption thereof, if the purchaser or person. claiming under him shall have failed to serve notice of such sale on the occupant or occupants thereof, and to file evidence of such service in the Comptroller’s office, as provided by section 68 of this act, and the occupant or any other person interested in the land shall fail to file in the Comptroller’s office, within one year after this act shall take effect, a written notice of such occupancy, together with an application for the redemption of such lands, and to furnish the Comptroller satisfactory evidence of the occupancy required, and make such redemption within two years after this act shall take effect, then the tax sale, and any conveyance made after filing in the Comptroller’s office evidence of the service'of the notice of the sale and conveyance, will become absolute, and the occupant and all others interested in the land be forever barred, unless the same is redeemed according to the provisions of that section.

In this case it does not appear to be claimed that any such notice was actually given or any proof of the service of such notice was-filed in the office of the Comptroller.

So far as appears the only thing before Comptroller Campbell at the time of ordering this redemption was the timely application for the same, the undisputed evidence of occupancy within the time which authorized the granting of an application to redeem, and the-proofs that no notice of the sale and conveyance had been given by the purchaser to the party in possession and no proof of the same filed in the Comptroller’s office as required by section 68 of chapter 421 of the Laws of 1855. Under suck circumstances it became the-duty of the Comptroller to act, and it would seem that by chapter 463 of the Laws of 1892 he was required to take action on the application on or before the 1st day of December, 1892.

But it is urged by the relator that the evidence of occupation at the time claimed in the motion to redeem was too slight and that the Comptroller erred in allowing a redemption on the same. The-proof was made in the application and was supported by the affidavits of four apparently disinterested affiants. Evidence in that form was admissible, and it was the duty of the Comptroller to pass upon its sufficiency. It was a question of fact for him to find upon the proofs whether or not this lot was occupied, and upon evidence satisfactory to him he found that fact in favor of the applicant, and this court in reviewing his action and determination ought not,. unless Ills determination is either entirely unsupported by evidence or against the clear weight of evidence, to reverse his .decision upon the facts. (People ex rel. Brisbane v. Zoll, 97 N. Y. 203.) The relator had notice of the original application to redeem, and an opportunity to controvert before the Comptroller the truth of the fact of occupancy of these lands, or of any other fact material to the question of redemption, but without any fault of the applicant, or her knowledge, or that of Comptroller Campbell, he claims to have relied upon some suggestions by the deputy comptroller that a pending action of ejectment would, when tried, determine the rights of the parties.'

Hnder such circumstances it can hardly be said that the Comptroller, by allowing this redemption, was, by an ex parte action or proceeding, depriving the citizen of his property within the case of Ostrander v. Darling (53 Hun, 190).

It is quite true that loss and inconvenience may result to a purchaser against whom a redemption is allowed; and yet until all •chance of redemption has been removed by the giving of the notice required by statute, and the lapse of time that bars redemption, the purchaser’s title must be regarded as inchoate to such an extent that .a prudent man would not take the hazard of making valuable and expensive improvements until his title had become perfect; and on the other hand, the penalties and requirements on redeeming are so .severe, under the provisions of section 68 of chapter 427 of the Laws of 1855, that a party incurring the same should not be deprived of the fruits of his redemption except it be shown that his redemption falls short of the legal requirements to effect a redemption.

In this case we fail to see any defect in the acts of the Comptroller in allowing this redemption which calls for its reversal.

The order of the Comptroller must be affirmed and the writ quashed, with fifty dollars costs and disbursements against the relator.

Putnam and Herrick, <T<L, concurred.

Order of Comptroller affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.


text:
    In the Matter of the Registration of Cassius A. Hamilton and Others in the First Election District of the Town of Canton as Voters.

      Boards of registration — action thereof in registering the names of voters is ministerial only — section 37 of chapter 680 of 1892 — what order of the court may he made thereunder.

    The boards of registration of the several election districts of the State act only ministerially in receiving and registering the names of voters, and must, therefore, register all who conform, on their application for registration, to the formal requirements of law, and must refuse registration to any who fail so to do.
    It is only when such boards fail in the discharge of such ministerial duty that a judge, under the provisions of section 37 of chapter 680 of the Laws of 1892, can compel by order .the performance of such ministerial duty, and no power is conferred upon a judge under such section, upon a summary application, to determine, upon the facts and law, the right of a citizen to register and vote without regard to the question of conformance on his part or on the part of the board of registration, with the formal requirement of the statute regulating the registration of voters.
    Appeal by Oassius A. Hamilton and others, from four orders made by a justice of the Supreme Court at Albany, N. Y., each entered in the office of the clerk of the county of St. Lawrence on the 28th day of January, 1893, directing that their names be respectively struck from the register of voters in election district No. 1 of the town of Canton.

      JEverett Gal&well, for Oassius A. Hamilton and others, appellants.

      Henry A. Peelcham, for Nelson L. Robinson, an elector, respondent.
   Mayham, P. J.:

On the 4th day of November, 1892, a justice of this court made four separate orders each separately relating to one of the four persons whose names were ordered to be stricken from the registry of voters, which orders were, with the exception of the name stricken from the registry, in the following form:

«IN THE SUPREME COURT.

In the Matter of the Registration of CAssius A. Hamilton in the First Election District in the Town of Canton as a Yoter.

“ Application having been made to me for an order directing the name of said Cassius A. Hamilton to be stricken from the list or register of voters of the first election district of the town of Canton in the county of St. Lawrence for the general election to be held November 8th, 1892.

Upon reading the duly verified application of Nelson L. Robinson and the affidavits of Nelson L. Robinson and Isaac M. Atwood, the certificate of the board of inspectors of said election district as to the proceedings in said matter before it, said proceedings and the annual catalogue of St. Lawrence University for 1891-2 in support thereof, and the affidavits of Cassius A. Hamilton, George R. Hardie, Charles Y. Fullington, Fred Birney Yan Orrmm, Frank N. Cleveland, James H. Christie, and after hearing Henry A Peck-ham, Esq., for Ledyard P. Hale, Esq., opposing such application, I do hereby order and direct Frank N. Cleveland and Benjamin F. Cleflin and Sylvester N. 'Judd, constituting the board of inspectors for the registry of voters in and for said election district for said election, to strike from such list or register of voters in and for said election district for said election, the name of Cassius A. Hamilton.”

From such orders each of the persons whose names were stricken from the register of voters appeals, and as all of the appeals involve the same question they have been argued together. The learned judge who granted the orders from which the appeals are taken wrote no opinion, and we have no means farther than wo may gather from the statute under which the application to him was made, of determining what his construction of section 87 of chapter 680 of the Laws of 1892 was. The manifest effect, however, of the order made by him was to establish the doctrine that a judge, upon a summary application under the provisions of that section, may determine the right of the citizen- to register and vote, upon the facts and law, without regard to the question of conformance on his part, or oil ¿the part of the board of registration, with the formal requirement of the statute regulating the registration of voters.

As the board of registration act only ministerially in receiving and registering the name of the voter, and must, therefore, register all who conform in their application for registration to the formal requirements of law (People ex rel. Stapleton v. Bell, 119 N. Y. 175), and must refuse registration to any who may fail in such conformation, it is only when such board fail in the discharge of such ministerial duty that the judge under the provisions of the act of 1892 (supra) can compel by order the performance of such ministerial duty.

The orders of the judge from which these appeals were taken went much further in their effects, and assumed to pass upon the .legal right of these appellants to be registered and to vote, and while they may have correctly determined that question their effect was too far reaching in its consequences to be determined in so summary a manner, and we do not think that that question was properly before the judge for determination.

In The People ex rel. Stapleton v. Bell (supra) it was held that a board of inspectors of election has no discretionary power to reject the vote of a person who, upon the application of the statutory test, has shown himself to be a qualified voter ; and that the lawfulness of a vote cannot be determined until it has been received; and that the elector’s right cannot be annulled without a trial. Tested by this rule, we think, the orders of the judge directing the inspectors to strike these names from the list of registry of voters was erroneous and must be reversed.

Putnam, J., concurred in result.

Order reversed.