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

text:
    THOMAS M. KING, JOHN K. COWEN, Respondents, v. REON BARNES, JOHN H. POST and Others, and the NEW YORK TRANSIT AND TERMINAL COMPANY (Limited), Appellants. SAME v. SAME — Appeal of Reon Barnes from Order Punishing Him for Contempt. SAME v. SAME — Appeal of John H. Post from Order Punishing Him for Contempt.

      When a receiver may be appointed to enforce a judgment against a corporation—Code of Oivil Procedure, sea. 713 — when the court has acquired jurisdiction it may grant all appropriate relief germane to the action, though not stated in the order to show cause — upon the return of an order to show cause why a defendant should not be adjudged to be guilty of a contempt, testimony of witnesses may be received if not objected to by any party—a refusal to comply with an order upon the ground.that it is alleged to be does not relieve the defendant from contempt.

    An agreement between the plaintiffs and the defendant Barnes provided that they should bear equally the costs of such property as might bo purchased for the purposes of, and all expense incident to, the creation and organization of a corporation to be known as the New York Transit and Terminal Company, and generally of the enterprise, and to share equally in the profits. In this action, brought to enforce the rights of the plaintiffs under such agreement, a final judgment was entered adjudging them to he entitled to the relief sought; the defendant, the corporation, failed to comply therewith and an order was made requiring it to show cause why an order should not be entered providing for the holding of a meeting for the election of directors of the defendant corporation, and why a receiver should not be appointed of its franchise, property, etc. On the return day of this order to show cause, an order was made appointing a receiver of all the franchise and the property of the corporation, and directing all persons in possession of such franchise, property, etc., to surrender the same to the receiver, and also appointing a referee to hold and conduct a meeting for the election of new directors for the said defendant corporation, and enjoining the defendants from making any disposition of the property of the said corporation, and from issuing or delivering any of the capital stock of the corporation, except as directed by the order or final judgment, and from incurring any debts or obligations in the name and for the account of the corporation.
    Upon an appeal from this order the appellants claimed that as there was in the order to show cause no prayer for an injunction, or for any direction to the referee to take charge of the election, and no prayer for other or further relief, the appoint-meat of the referee and the injunction against the defendant transcended the relief sought by the preliminary order:

      Held, that the moving papers sought all the'relief granted, and the parties having been heard the court acquired jurisdiction and possessed sufficient power to grant all appropriate relief germane to the subject involved.
    That the appointment of the receiver was authorized by section 713 of the Code of Civil Procedure, providing that a receiver of property, which is the subject of an action in the Supreme Court, may be appointed by or after the final judgment to carry the judgment into effect or to dispose of the property according to its directions.
    That as the action was brought to establish and enforce the rights of the parties who had advanced money and incurred liabilities, in reliance upon the agreement for the joint enterprise, it was peculiarly and indisputably within the jurisdiction of a court of equity, and the remedies of injunction and receivership were necessary to the final and complete relief

      King v. Barnes (109 N. Y., 267).
    That the defendants could not shield themselves behind the company, as this action-was based upon the original agreement, and that the charge of fraud could not be met by setting up rules of law available to corporations.
    An order was made requiring the defendant Barnes and others to show cause why they should not be punished for a contempt in disobeying the order of the court. Thereafter, pursuant to an order of adjournment made for that purpose, the counsel for the plaintiffs and for defendant Barnes both appeared and testimony of witnesses was taken in open court, and thereupon an order was made adjudging the defendant Barnes guilty of the misconduct alleged against him in the moving papers, and imposing a fine upon him of $250 and directed that he should be committed to the county jail for six months.
    The defendant Barnes claimed that the order should be reversed upon the ground that the preliminary order only commanded him to show cause why he should not be punished for contempt in refusing to transfer stock, and for such other relief as the plaintiff might be entitled to, while the final order for punishment was based upon the charge of aiding and abetting the officers of the company in refusing to obey the directions contained in the final judgment.
    I-Ield, that as the final order was made after a full hearing, when all the parties were before the court, and was not beyond the scope of the preliminary order which required Barnes to show why he should not be punished for the alleged offense of contempt, the objection could not be sustained. "
    That an objection that the whole proceeding was erroneous, because the judge received the testimony of witnesses on the hearing of the motion, was not well taken, as there was no compulsory obedience to the order for oral proof, and the parties appeared voluntarily, and the testimony was taken without any objection being made by the defendants.
    That the punishment imposed upon me defendant was [neither beyond the requirements of the evidence nor the authority of the statute.
    That aiding others in the violation and defiance of the orders of the court amounted to a civil contempt, and might be punished as such by both fine and imprisonment, and if the act or duty could not be performed then the imprisonment could not exceed six months and until the fine was paid.

      People ex rel. Mayor v. N. Y. and Saten Island Ferry Co. (64 N. Y., 624); People ex rel. Munsell v. Oyer and Terminer (101 N. Y., 245) followed.
    Upon an appeal from an order inflicting punishment on the defendant Post for a contempt in refusing to obey an order of the court, it appeared that a copy of the order appointing a receiver of the defendant corporation was served personally on the defendant Post on the 19th day of October, 1888, accompanied by a letter from the receiver requesting Post to inform him at what time the officers of the company, Post being one, would deliver to him the property, books, papers and seal of that company as directed by the order. Post having-appointed a time, the receiver with his counsel, met the defendants Barnes and Post and a formal demand was then made for the said books, seal and property of the company, in reply to which demand Post said that he had taken counsel and was advised that the order appointing the receiver, was contrary to the express provisions of the statute. At this time he made no denial of his ability to deliver the property demanded, and based his refusal to comply with the order upon its illegality and invalidity solely.

      Reld, that such conduct and refusal was clearly contumacious; that while the order was in force it was the duty of the defendant to obey it.
    That, in this case, the design of the defendant was to avoid and defy the order, and as his pretense was false and frivolous his conduct amounted to a willful contempt and presented the case for the interposition of the court for the vindication of its process.
    Appeal by the defendants, the New York Transit and Terminal Company (limited), Reon Barnes, John H. Post, "William Carpenter and Wilbur P. Disosway, from an order made at a Special Term held in the city of Poughkeepsie on October 13, 1888, entered in the office of the clerk of Richmond county on October 15, 1888, appointing a receiver of the defendant corporation, directing the holding of a corporate election for directors, under the control of a referee; and enjoining the defendants from making any disposition of the property of the defendant corporation to any person, or for any purpose whatsoever, except as directed in the said order or as directed by the final judgment, and from incurring any debts or obligations, or entering into any contract or agreement of any kind whatsoever for the sale of the property of the corporation, or otherwise, in the name and for the account of the corporation.
    Also an appeal by the defendant Barnes from an order made at a Special Term, held at Poughkeepise on October 21, 1888, and entered in the office of the clerk of Richmond county on November 20, 1888, adjudging the said Barnes in contempt, and punishing him by inyprisonment for six months in any county in which he might be found, and by a fine of $250.

      Also an appeal by the defendant John H. Post from .an order made at a Special Term at Poughkeepsie' on October 27, 1888, and entered in the office of the clerk of Richmond county on November 20, 1888, adjudging the appellant to be in contempt for not delivering the franchises, records, books, papers, seal and property of the New York Transit and Terminal Company (limited), to John Prank Emmons, who had been, by au order made on October 13, 1888, appointed a receiver of the property and effects of the said corporation.
    This action was brought to compel the transfer to the plaintiffs of certain interests which they claimed in the stock of the defendant corporation, which stock, they alleged, had been issued to defendant Barnes by a corporation he had organized in pursuance -of an agreement with them, that they should own some of the stock after the organization, and that he had wrongfully withheld it from them. The complaint also asked an accounting between him and themselves as to certain moneys furnished by him and them to purchase the property of the corporation and further the cancellation of 7,000 additional shares of stock which they claimed had been unlawfully issued to him. The complaint stated that the corporation was organized to buy and sell real estate; that the authorized capital was $1,000,000, and that only $100,000 of such stock had been lawfully issued. Au interlocutory judgment was entered in the action on August 2, 1886, which was affirmed by the General Term by a judgment entered in January, 1887, and the final judgment in the action was entered May 17,1887. These judgments were affirmed by the Court of Appeals on April 10,1888; the' opinion of the Court of Appeals will be found in 109 New York, 267.'

      William H. Hornblower and James McNamee, for the appellants.

      John H. Post, appellant, in person.
    MacFarland, Boardman & Platt, for the respondents.
   Dykman, J.:

The litigation in this case has been severe and the matters involved were complicated and unusual, but the defense has been found destitute of merit, and all the questions presented have been decided adversely to the contention of the defendants.

Under the decision of the court of last resort, the plaintiffs became entitled to full relief, and the execution of that judgment has now devolved upon the Supreme Court. Upon the failure of the defendants to comply with the requirements of the judgment, an application to the court for the enforcement of such compliance became necessary, and in obedience to such necessity an order was made by a justice of the Supreme Court requiring the defendant to show cause at a Special Term why an order should not be entered at the foot of the final judgment in this action, and, in order to carry the same into effect, directing and providing for the holding of a meeting for the election of directors of the defendant, the New York Transit Terminal Company (limited). And, also, why a receiver should not be appointed of the franchises, property, records and papers of the said defendant company, in order to carry the judgment into effect.

The motion came on and was heard, and all the matters stated in the moving papers were found to be true, and a receiver of all the franchises, the property and of the seal of the corporation was thereupon appointed, and all persons in possession of such property, franchises and seal, were ordered to surrender the same to the receiver. A referee was also appointed to hold and conduct the meeting for the election of new directors for the New York Transit and Terminal Company (limited). The defendants have appealed from the last recited order, and the sole question presented or argued by the appellants, as stated by their counsel, is this: “ Did the court below have jurisdiction to make the order appealed from, and is it in accordance with law and a proper exercise of judicial power ? ”

The appellants maintain the negative of this proposition and make a preliminary challenge to the order, because it transcends the relief sought for by the primary order to show cause. There was in that order no prayer or notice for an injunction, or for any direction to the referee to take charge of the election, and no prayer for other or further relief, but the moving paper sought all the relief granted, and laid the foundation for its bestowment, and the parties appeared and were fully heard, and the court, therefore, acquired jurisdiction and possessed sufficient power to grant all appropriate relief, so far as the same was germane to the subject involved. Upon the merits, we think the appointment of the receiver was authorized by section 713 of the Code of Civil Procedure, which is as follows: “ In addition to the cases where the appoint-men of a receiver is specially provided for by law, a receiver of property, which is the subject of an action in the Supreme Court, a Superior City Court, or a County Court, may be appointed by the court in either of the following cases: ” * * * “ By or after the final judgment to carry the judgment into effect, or to dispose of the property according to its directions.”

"We think the section has a very salutary application here, and was designed to meet an emergency such as has arisen in this case. The judgment cannot be carried into effect, and a disposition made of the property according to its direction, without wresting such property from the fraudulent possession of the defendants, and placing it in the custody of an officer of the court. We are unwilling to confess the inability of the Supreme Court, with the equity powers of the old Court of Chancery, to carry into execution the judgment in this action by the employment of all the instrumentalities known to the law, and ordinarily utilized for such purposes, even without the provision of section 713 of the Code. Neither do we think the general provision of the Code of Civil Procedure resnecting the appointment of receivers of the property of corporation antagonistic to the exercise of the powers vested in the courts of equity to execute their judgments. These provisions, as well as those of chapter 378 of the Laws of 1883, apply only to the appointment of receivers in cases of insolvency. Application for the appointment of receivers in equity actions, in all stages, are by no means uncommon, and they are appointed on general principles of equity, independent of all statutory provisions. They are common-law receivers, and custodians of the property for its protection, and their appointment may be made without reference to the location of the principal office of the company. (United States Trust Co. v. N. Y., W. S. and B. R. R. Co., 35 Hun, 341; S. C., 101 N. Y., 478.) Beside all this, under the judgments of the courts, these defendants now occupy the position of contnmacious usurpers. They have no right to represent this corporation; they have been detected in efforts to prostitute the company to fraudulent purposes, and a solemn adjudication has been made requiring them to surrender all the property and franchises to the equitable and lawful owners. This terminal company was formed in pursuance of an agreement between the plaintiffs and the defendant Barnes, providing for the organization of a corporation under the laws of this State, for the purpose of taking title to such property as might be purchased, and for the payment therefor by the issuance of full paid capital stock or otherwise. This agreement provided that the parties thereto, the plaintiffs and the defendant Barnes, should bear equally the costs of such property as might be purchased, and all expenses incident to the creation and organization of the corporation and of the contemplated enterprise generally; and they were to share equally in the profits, benefits and advantages that might accrue from the execution of the agreement.

It is, therefore, the agreement, which is beyond the corporation, which controls the rights of these parties in this action, and it is the execution of that agreement which the courts are called upon to enforce; and the profits, benefits and advantages to accrue from the execution of the agreement were to be shared equally by the parties thereto. By the agreement the parties entered upon a joint enterprise for their mutual benefit, and their rights and liabilities rest upon the express terms thereof, and are to be enforced upon the principles applicable to partnership transactions.

The action is prosecuted to establish and enforce the rights of the parties who have advanced money and incurred liabilities in reliance upon the agreement for the joint enterprise, and is, therefore, peculiarly and indisputably within the jurisdiction of a court of equity, and the remedies of injunction and receivership are incidental and necessary to the final and complete relief. (King v. Barnes, 109 N. Y., 267.) These litigating defendants cannot shield themselves behind the company. The rights, duties and liabilities of the parties to the agreement are not to be determined by the rules of law applicable to corporations in actions brought against them, and these rules of law cannot be invoked by these- defendants in any stage of this litigation. This action is based upon the original agreement and general principles, of equity jurisprudence, and applies to the general jurisdiction of courts of equity, under which those coiu'ts decree the specific performance of agreements: Relieve against fraud; marshal property; adjust equities between parties to partnerships and joint adventurers, and “ varies its adjustments and proportions so as to meet the very form and pressure of each particular case in all its complex habitudes.” (Story’s Equity Jurisprudence, § 439.) These defendants cannot, therefore, defend themselves against the charge of fraud made against them by setting up rules of law available to corporations. They are required to defend themselves and answer the charges made against them, without regard to the artificial body created under the agreement as a mere instrument .to be utilized in the execution of a great scheme. They can claim no immunity under that organization ; neither can they place that body between them and justice; and the plaintiffs cannot be embarrassed in any way by reason of its existence, or by reason of any rules of law which it might invoke for its protection in a proper case.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred.

Dykman, J.:

This is an appeal from an order made at a Special Term of this court, adjudging the defendant Barnes guilty of contempt for aiding and abetting the defendant Post and Disosway in their contempt in willfully disobeying the order of this court.

An order was made requiring the defendant Barnes and others to show cause why they should not be punished for contempt, and on the return of that order an order was made adjourning the motion to October 20, 1888, and directing the parties to attend at the court on the last-named day with their witnesses, and that the testimony of such witnesses, and such documentary proof as might be then produced by either party in respect to the charges made against said Barnes in the moving papefs, be taken in open court. No opposition or objection was made to that order. The motion was subsequently adjourned to October 26, 1888, and on that day the counsel for plaintiffs and defendant Barnes both appeared, and testimony was taken before the judge in open court, and thereupon an order was made which adjudged the defendant Barnes guilty of the misconduct alleged against him in the moving papers, and that he had aided and abetted the other defendants in their contempt and willful disobedience of the order of this court. , A fine was imposed upon him of $250, and he was also committed to the county jail for six months. No objection was lodged against the order for taking testimony or against the taking of the testimony in that way, or to the mode of procedure in any way at any stage of the proceedings; and it seems to have been assumed that all the proceedings in that respect were assented to by the defendant Barnes. No appeal was made from the order for taking the testimony until the time had expired, and then an order was made at Special Term permitting the defendant Barnes to amend his notice of appeal from the order inflicting his punishment for contempt, so as to bring up for review the first order.

The first objection made to the final order is this: The preliminary order commanded Barnes to show cause why he should not be punished for contempt in refusing to transfer stock, in compliance with the final judgment in this action, and why the plaintiff should 'not have such other and further relief; whereas the final order for punishment was based upon a charge of aiding and abetting the officers of the company in their contumacy, and that variance is now claimed to be fatal. The final order was made after a full hearing, when all the parties were before the court, and is not beyond the scope of the preliminary order, which did require Barnes to show cause why he should not be punished for the alleged offense of contempt, and the objection cannot prevail. Again, it is insisted that the whole proceeding was erroneous, because the judge received testimony on the hearing of the motion. We are by no means prepared to yield assent to the claim of error here put forth as a proposition of law; but we are not required to decide the question, because the defendant is not in a position to raise it. The order for oral testimony was made, and the testimony taken, without objection, and the defendant being present by his counsel, must be deemed to have assented to the proceeding and to have waived all objection which might have been made thereto. The legal view, therefore, is, the whole proceeding was by consent. There was no compulsory ■obedience to the order for oral proof, and the parties appeared voluntarily, and the testimony was taken, and it would be quite unjust to the plaintiff to permit an objection after such voluntary acquiescence in the proceedings.

Upon the merits, we find the conviction well sustained and fully justified. The proceedings show the infusiqn of the master will of Barnes to control the other defendants, and especially the defendant Post, to whom he furnished pecuniary aid, as well as strength of purpose, to resist the judgment and orders of the court. Entering the company upon the selection of others, under an agreement or understanding to resign on request, and permitted to qualify himself for a director by subscription for stock, without paying therefor, the defendant Post has been, from the first, entirely subservient to the wishes of Barnes, sustained by his care and molded by his will, without freedom of thought or independence of action. We are prepared to sustain the conviction; and although the question of punishment* is involved in some obscurity in all these cases of civil contempt, yet we think the punishment imposed on this defendant is neither beyond the requirement of the offense nor the authority of the statute.

Aiding and assisting others in the violation and defiance of the orders of the court amounts to a civil contempt, and may be punished as such. (People ex rel. Mayor v. N. Y. and Staten Island Ferry Co., 64 N. Y., 624.) A civil contempt may be punished by both fine and imprisonment, and if the act or duty cannot be performed, then the imprisonment may not exceed six months and until the fine is paid. (People ex rel. Munsell v. Oyer and Terminer, 101 N. Y., 245.) It was the duty of the defendant Barnes to refrain from evil and exert no malign influence upon his co-defendants, and for a failure of duty in that respect he has been punished. That duty cannot now be performed, and he may now be punished for his violation of the private rights of the defendants ; and even though there be in such imprisonment a trace of the element of punishment, yet such punishment may be. imposed to check similar violations in the future. (Id., 247.)

The order should be affirmed, with ten dollar's costs and disbursements.

Pratt, J., concurred.

Dykman, J.:

This is an appeal from an order of the Special Term of the Supreme Ooiu-t inflicting punishment on the defendant Post for a contempt in refusing to obey the mandate of the court.

On the 13th day of October, 1888, an order was made at a Special Term of this court, appointing a receiver of all the franchises, seal and property of every description, records, books and papers of the corporation known as the New York Transit and Terminal Company (limited); that order also required all persons in possession of any such franchises, property, records, books, papers and seal to surrender the sanie to the receiver on demand forthwith. A copy of the order was served on the defendant Post, personally, on the 19th day of October, 1888, accompanied by a letter from the receiver, requesting Post to inform him at what hour that afternoon, or on the following Monday, the officers of the Terminal Company, Post being one, would deliver to him the property, books,» papers and seal of that company, as directed by the order. Post stated in reply that he would meet the receiver at the office of the company on Monday, November 22, 1888. at noon. The receiver, with his counsel, attended at the appointed time and place, but Post was not there; another appointment was made for a meeting at the same place on the following- Wednesday, at noon, and the receiver and his counsel, Mr. .Boardman, then met the defendants Barnes and Post and had an interview. A formal demand was then made for the books, seal and property of the Transit and Terminal Com. pany in accordance with the order of October 13, 1888, accompanied with a statement that the whole, or any part thereof, would be accepted. In reply to the demand Mr. Post said he had taken counsel and was advised that the order of October 13, 1888, was made in a case hot authorized by law, and contrary to the express provision of the statute. He stated further that, in order to have the matter judicially determined, he had, that morning, obtained from the Supreme Court an order to show cause why the order of October thirteenth should not be vacated and declared void, which order was returnable on Friday next, and lie suggested that matters should be allowed to stand as they were until the hearing upon such order. To that suggestion no reply was made. At this interview Post made no denial of his ability to deliver the property demanded, and based his refusal to comply with the order upon its illegality and invalidity solely. In his affidavit to oppose the motion for his punishment for contempt, he says he did not then have any of the books or papers in his possession, which means only actual possession, and is far from a statement of want of control or ability to comply with the order. On the contrary, his conduct and language amounted to an admission of ability to comply with and obey the order, and a refusal to obey because the order was illegal and void. Such conduct and refusal was clearly contumacious. While the order was in force it was the duty of the defendant to obey it and not to avoid it by subterfuges. If a party can be permitted to disobey an order of the court because he deems it invalid, there will be a speedy end to obedience of legal process. Mandates of courts of general jurisdiction, issued in the usual course of legal procedure, are valid until reversed, and impose a duty of compliance, and disobedience thereto is contempt.

In this case, however, the design of the defendant was to avoid and defy the order. His pretense was false and frivolous. His conduct amounted to a willful contempt, and presents a case for the interposition of the court for the vindication of its process. It is true that no punishment can be imposed for disobedience of a mandate in excess of the jurisdiction and beyond the power of the tribunal from which it issued, and the authorities cited by the appellant relate to that class of writs and orders.

Errors committed by a court upon the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional facts, do not invalidate its orders or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action. (Fischer v. Langbein, 103 N. Y., 90; Day. v. Bach, 87 id., 56.) Here the order for the appointment of a receiver was within the powers and jurisdiction of the Supreme Court and was made on notice, and after full hearing in an action where the court had jurisdiction of the parties, and of the subject-matter. Moreover, the order has been affirmed at the present term of this court, and our reasons for such affirmance are contained in the opinion prepared upon that appeal and require no repetition here.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred.

Order adjudging Barnes in contempt affirmed, with ten dollars costs and disbursements. Order adjudging Post in contempt affirmed, with ten dollars costs and disbm-sements. Order appointing receiver, etc., of date of October 15,1888, affirmed, with ten dollars costs and disbursements. Motion to dismiss appeal denied, without costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    THE ISLE OF WIGHT COMPANY, Appellant, v. FREDERICK H. SMITH, Jr., Respondent.

      TTsu/rious agreement — a corpoi’ation cannot sue for the surrender of securities pledged by it as collat&ral th&reto.

    Upon an appeal from a judgment, sustaining a demurrer to the complaint, in an action brought by a corporation to procure the surrender of certain securities, given to secure the payment to the defendant of a usurious loan:

      Held, that the judgment should be affirmed.
    That as the plaintiff was forbidden, by chapter 172 of the Laws of 1850, to interpose the defense of usury, in an action brought to enforce the payment of a loan, it could not accomplish by indirection what it could not do directly.

      Southern Life Insurance Company v. Packer (17 N. Y., 51); Curtis v. Leavitt (15 id., 9) followed.
    Appeal from a judgment, entered in the office of the clerk of the county of Queens on October 13, 1888, dismissing the complaint herein, and from an order made at a Queens County Special Term, held on September 1, 1888, which sustained a demurrer to the complaint herein and directed that the defendant have a judgment thereon, with costs.

      Frederick Elder, for the appellant.

      Thaddeus D. Kenneson, for the respondent.
   Dykman, J.:

This is an action brought to procure the cancellation and surrender of certain securities for the payment of a usurious loan made by the defendant to the plaintiff.

The defendant demurred to the complaint, and had judgment in his favor in the court below, from which the plaintiff has appealed. We find no principle which will justify a recovery in this action. The plaintiff is a corporation and could not interpose the defense of usury in any action brought to enforce the payment of the loan. (Laws 1850, chap. 172.) As, therefore, the interposition of such a defense would be unsuccessful, it follows necessarily that the same facts set up in a complaint in an action for affirmative relief can afford the plaintiff no greater relief. It cannot accomplish by indirection what it cannot do directly. Moreover, we think the question has been adjudicated in this State, and decided against the contention of the plaintiff. (Southern Life Ins. Co. v. Packer, 17 N. Y., 51; Curtis v. Leavitt, 15 id., 9.)

The judgment appealed from should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order sustaining demurrer to complaint affirmed, with costs.


author: Pratt, J.:

text:
    JOHN DANAHER, as Administrator, etc., of the Estate of THOMAS P. DANAHER, Deceased, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Negligence of a city in maintaining a well containing impure water caused by the properties contained in the earth through which the water percolates—the city is not liable until notice — duty of the board of health to examine the water and notify the city — adjudications of the board of health not competent to charge the city until brought to its attention — effect of the subsequent act of the city abating the nuisance.

    Upon an appeal from a judgment dismissing the plaintiff’s complaint, it appeared that the action was brought to recover damages, against the city of Brooklyn for causing the death of the plaintiff’s intestate by negligently maintaining a well and pump for drinking purposes, and furnishing impure, poisonous and unwholesome drinking water to the deceased, by the drinking of which he was killed.
    No proof was offered to show that the well had become fouled by anything which had gone into it directly from the surface of the ground, or through anything injected into it through imperfections in any of the sewers or street arrangements, or from any special deposit of filth upon the surface in its immediate vicinity; or that the city, or any of its officers, did or suffered any act which polluted the water from rains falling upon the surface, and percolating from the surface into the well, or that they in any way impeded or clogged, or otherwise subjected to influences which would pollute, the water so percolating from the surface into it.

      Held, that, as it was apparent that the impurities in the water must have come from the properties of the earth, through which the percolation of the water occurred, which were taken up during the process, the cause of the impurity of this water fell within the range of the powers lodged in the city department, whose duty it was to care for the public health.
    That the sickness and death here complained of, assuming that they were traceable to the water of the well, were attributable to the failure of the health department to watch over the influences which might affect the water, or to examine it or to take, or call upon the city to take, measures to prevent the public from using the well.
    That the duty of watching over the qualities of this water, as it was affected by the natural sources of this well, was not imposed upon the city of Brooklyn until the health department of the city gave notice to it of the impurity, or until it acquired knowledge of the fact in some other way.
    That a clear distinction existed between the duties of the health department and the city itself in respect to the cause which led to the death of the deceased. That the former was bound to exercise reasonable diligence over the influences which might affect this water, as connected with the method 'by which it was collected, while the latter was bound to keep its sewers and streets in such condition that the water would not be polluted, and to keep the wells and pumps in proper repair.
    That adjudications, made by the department of health respecting the natural quality of this water, were not material or competent evidence to charge the city with any active duty respecting it until they were brought to its attention; nor was the fact that the city subsequently acted on the theory that this water was unwholesome of any importance.
    The cases relating to the liability of the city, arising in the discharge of the duties imposed upon it by its charter, collated and considered by Pratt, J.
    Appeal from a judgment of the Kings County Circuit Court on June 16, 1887, dismissing the plaintiff’s complaint, entered in the office of the clerk of Kings county on the same day.
    The action was brought against the city of Brooklyn to recover damages for causing the death of the plaintiff’s intestate by negligently maintaining public wells and pumps for drinking purposes, and furnishing impure, poisonous and unwholesome water, by the drinking of which he was killed.

      Franklin, M. Danaher and Roger A. Pryor, for the appellant.

      Almet F. Jenks, for the respondent.
   Pratt, J.:

We have failed to find anything in the evidence which was received, or that offered, if it had been admitted, which would justify a finding of negligence in this case against the city.

Before applying the legal principles which seem to us to govern the case, let us endeavor to get a clear view of the facts upon which the plaintiff’s theory is founded. It is alleged, in substance, that plaintiff’s intestate became sick and died because he had been drinking water from one of the public wells which the city had established in one of its streets, and in which it had" placed a pump for public use. The theory of the action i is that the city authorities, in that way, invited the public to partake of the water, and that the city, for that reason, was bound to be vigilant and take notice of the quality and properties of the water, and, in fact, assure its wholesomeness, so long as it maintained the pump, and was bound to abate it as a nuisance so soon as it, the water, became unfit for use. We do not understand that any proof was offered tending to show that the well had become foul from anything which had gone into it directly from the surface, or through anything injected into it through imperfections in any of the sewers or street arrangements, or from any special deposit of filth upon the surface in its immediate vicinity; but solely from the general fact that it was an ordinary well, sunk and stoned up in the ordinary way into earth, the surface of which was used as it is ordinarily used in large cities. In other words, it was assumed, if not proven, that this well was supplied as wells are ordinarily supplied with water, viz., from rain-falls through percolation from the surface until it reaches some impermeable stratum, and thence into the shaft which is sunk therein; and that the impurities came from properties of the earth through which this percolation occurred, which were taken up during this natural process. There is no pretense that the city, or any of its officers, did or suffered any act which polluted- these waters, or that they constructed or, in any respect, mismanaged any part of the street so that this natural process was, in any respect, impeded or clogged or otherwise subjected to influences which would pollute the percolating water. It is thus apparent that the cause of the impurity of this water fell within the range of the powers lodged in the city department, whose duty it is to care for the public health. For aught that appears, the impurities may have been attributable to privy vaults or discharge of refuse upon the lands of private owners, or the accumulation of stagnant surface-water upon remote vacant lots, which, descending by natural laws, found their way into this excavation. Hence it is tolerably plain that the impurity of the water was not the result of the use of the street as a street, but either to the want of foresight in adopting a plan in this system of supplying water,' or to the lack of vigilance in those whose duty it was to watch over the influences which would affect the quality of the water thus collected. The fixing of this liability involves a statement of a few of the general principles relating to the powers and duties of municipal corporations.

Turning, then, to the duties of the city, it may be observed that its functions are of two classes, those of a purely public and political character as the representative of the State, and those of a private nature. Generally speaking, it is only for its exercise or neglect of the latter class of powers that it becomes liable in damages. But unlike the involuntary and quasi corporations, composed of the counties and towns of the State, it undoubtedly assumes certain powers, and is bound to discharge certain duties which they are not bound to perform. For example, the latter are bound to take care of the public highways; but, in the absence of statutory liability, they are not liable for injuries to individuals from neglect to exercise- these powers. The duty of keeping public roads safe for ordinary use rests upon the officers, when the money or other means for that purpose are in their hands ; and if they are without such means, then, generally speaking, the injured person is without redress. i It is not so with municipal corporations; they exist by their own choice, and not as a necessary part of the fundamental political divisions of the State. By the solicitation and acceptance of their charters they, without express statutory liability, assume and are bound to the reasonable exercise of their chartered powers, because their existence is voluntary, and, in the nature of things, they have procured special powers which are not necessary to the general system of the State, such as the right to establish streets with their sidewalks, and the peculiarities which distinguish them from the ordinary country roads, sewers, etc. But it is not for injuries resulting from every exercise or omission to exercise these special and peculiar powers that the municipal corporation becomes liable to the person injured. The State makes use of the municipalities as the means by which to exercise its own governmental functions within the territory which would otherwise be under the control of its counties or towns. So, too, they are invested with certain judicial or legislative powers to determine when and by what means they will establish their own local improvements. They may act or omit to act within the whole range of power which is judicial in its nature and character, generally speaking, without liability. They may) in the exercise of purely judicial functions, determine when and where a street shall be opened or a sewer shall be constructed, and for that exercise of power or omission to exercise it no liability arises. So, too, it may be generally stated that they are not liable for defects in the plan of construction as distinguished from the method and manner of its execution.

Perhaps this statement requires some qualification when applied to peculiar cases (Gould v. City of Topeka, 32 Kans. 485 ; 49 Am. Rep., 496 ; City of Evansville v. Decker, 84 Ind., 325 ; 43 Am Rep., 86), but it is believed to be true as a general rule. (Urquhart v. City of Ogdensburg, 91 N. Y., 67.) For example, they are not liable for errors of judgment in determining the grade of a street nor in the capacity of a sewer, but they are liable if they do not execute their plan with care and skill or fail in reasonable vigilance in the use of it or in keeping it in repair, and in special cases for the results of such use where a trespass is thereby committed upon another. It may well be doubted if they may, with impunity, adopt a plan, the natural, obvious and direct result of which would be to create a nuisance (City of Evansville v. Decker), or where the use of the sewer substantially appropriates private property to public uses without compensation. (Seifert v. The City of Brooklyn, 101 N. Y., 137.) But that can scarcely be applied to the present case. Eo such result would follow from the execution of the plan to construct a well, unless under special and peculiar circumstances which do not apply to the construction and use of this well. The same general rule applies to their duties respecting streets and public places, and even for the uses which it suffers individuals to make thereof. To this class of liabilities belong all struetiu'es or contrivances which overhang or underlie a street or sidewalk such as signs or vaults and the, like, as well as those which are made upon the surface, such as coal-holes, area-ways, etc. The ground of this liability is that such contrivances interfere with the street' itself, which they are bound in their private capacity to maintain in a reasonably safe condition for public use.

In all these cases the municipality is liable without any express statutory imposition of duty. The general rule deducible from this class of powers seems to be that while the city incurs no liability for its omission to exercise its judicial and legislative functions, it, nevertheless, becomes liable for neglect in the reasonable management of the institutions which it determines to establish, so soon as it enters upon the establishment thereof. But there is a different class of powers exercised by municipal corporations which impose no liability unless by express provision of statute. These may bo classed as governmental powers, that is to say, they are peculiar to and do nor fall within the limitations which distinguish them from the quasi corporations to which we have alluded. To this class belong the injuries resulting to persons and property by their failure to afford protection against the violence of mobs, the acts of policemen, firemen, etc. And the simple fact that it has the power to appoint, and of taxation to compensate its appointees, does not create a liability.

In these respects it acts as the agent of the State and exercises a purely governmental power. The officers thus created are public officers engaged in the discharge of public as distinguished from the special and peculiar functions which distinguish municipal corporations from the other political divisions of quasi corporations of the State. While these rules are well established, a few illustrative cases may be of service in Lading up to the consideration of the particular cause of the injury of which plaintiff conrplains. A county is not liable for the acts or negligence of officers or employees which it appoints in the. erection or management of a court-house (Hollenbeck v. Winnebago Co., 95 Ill., 148 ; 35 Am. Rep., 151); nor for injuries sustained by the defective construction or imperfect lightingthereof (Kincaid v. Hardin Co., 53 Iowa, 430; 36 Am. Rep., 236); nor is a city liable for the acts or neglect of its board of education (Ham v. Ihe Mayor, etc., 70 N. Y., 459); nor for those of the board of charities, etc. (Maxmilian v. The Mayor, etc., 62 id., 160); nor for those of an inspector of steam-boilers, (Mead v. The City of New Haven, 40 Conn., 72 ; 16 Am. Rep., 14); nor for the destruction of buildings to prevent the spread of conflagrations (Russell v. The Mayor, 2 Denio, 461); nor for the action of its health authorities (Ogg v. The City of Lansing, 35 Iowa, 495; 14 Am. Rep., 499). These are all deemed to be within the range and immunities incident to its power of sovereignty.

We think that the evidence discloses the facts that the sickness and death here complained of, even assuming that it was traceable to the waters of this well, were attributable to the failure .of the department of health to watch over the influences which might affect, or to examine, the water, or to take or call upon the city to take measures to prevent the public from using the well and pump. There was nothing in the plan of construction or method of execution of the plan for this well or the pump, which would suggest that the water was liable to become dangerous. As already observed, there is no suggestion that anything was out of order about either the well or pump, or sewers or the streets, in consequence of which the water was rendered impure. Its unwholesomeness was the result of natural causes, and was not attributable to the city in its private capacity, unless it was a part of its water supply, a point which we shall presently examine.

We come, then, to examine the question whether or not the charter imposes any statutory liability upon the city for an injury resulting from such a cause. Let us repeat that the simple fact that the charter grants power to appoint the officers of the department of health, and provides the means by taxation for the performance of their duties, does not meet the difficulty. These are all mere incidents of the exercise of sovereign powers. We do not understand that plaintiff claims that the charter goes farther than that, unless it be in this respect, that the health department of the city was limited to mere recommendation by which the duty of supplying a remedy was cast upon the city itself. We shall see, however, that the injury in this case did not result from the failure to apply a remedy, but from the lack of vigilance in apprising the city authorities of the occasion for activity. But, irrespective of this contention, we are satisfied that the charter does not impose the' duty of watching over the quality of this water as affected by the natural sources of supply to this well. It does precisely what almost every other charter does for the municipality, viz., gives power to appoint the head of the department, and is special' in this respect, that it authorizes that department to provide a sanitary code, to be approved by the common council. Its provisions are broad enough to authorize the adoption of a complete system of rules and regulations, with fines and penalties for. the infraction thereof; and we may, I think, take notice of the fact that such code has been adopted. We look in vain for any special provision which imposes any duty upon the city to exercise vigilance in matters affecting the public health, except through this department. It is, indeed, hinted that, inasmuch as this well was in one of the public streets, there could be no interference therewith, except through special direction of the common council to the department of public works. But the difficulty with this theory is that the city owed no duty respecting the causes which poisoned these waters, except through this department, and was not, therefore, bound to know that they were unfit for use until this department gave notice of, or until it acquired knowledge of the fact in some other way. The duty of vigilance, inspection, detection, analysis, etc., were with that department. So that the neglect, if any, was in its failure to inspect and 'require action by the common council. That being true, there was no relation of master and servant between this department and the city respecting this duty of vigilance upon which to predicate the liability of the latter. Hence we see that a clear distinction exists between the duties of this department and the city itself in respect tó the causes which led to this difficulty.

The former was bound to exercise reasonable vigilance over influences which might affect this water, according to the plan by which it was collected. The latter was bound to keep its sewers and streets in such condition that the waters would not be polluted, and to keep the well and pump in proper repair. Hence knowledge or neglect of the means of knowledge, in respect to the natural quality of this water by this department, was not the knowledge or neglect of the city; and, therefore, the acts of adjudications of this department, respecting the natural quality of this water, were not material or competent evidence to charge the city with any active duty respecting it until they were brought to its attention. This conclusion disposes of the offers of evidence of the acts of the department of health. Nor was the fact that the city subsequently acted on the theory that this water was unwholesome of any importance. (Hunt v. Mayor, 109 N. Y., 134.) There was no notice to the city, or knowledge by it, of this unwholesomeness until the department made its report, and that was fully three weeks after the plaintiff’s intestate was dead and buried.

We do not mean, by any of these suggestions, to indicate that the health department was, or that any of its officers were, guilty of any neglect in the premises. On the contrary, we are inclined to think that the evidence failed to show any actionable neglect in that direction. But, since that question is not before us. it will subserve no useful purpose to discuss it. Suffice it to say that to hold the city for the acts or omissions or opinions of 'this department, before it was notified thereof, would add to the absurdities which are clearly pointed out by Mr. Justice Day in Ogg v. The City of Lansing. We fail to see how its actionable character can be imputed to the city any more than Lees’ neglect to notify Ogg could be attributed to the city of Lansing. Lees was the agent of the health authorities. He asked Ogg to assist in removing a corpse infected with small-pox, without disclosing the danger. It was held upon reasoning, the soundness of which we cannot doubt, that the city was not liable for the injuries which resulted to Ogg. And the same principle seems to apply to the causes for, and the fact of, the unwholesomeness of this water.

We have not overlooked the case of Seifert v. City of Brooklyn (supra). That was a case in which the city exercised its judicial functions, chiefly for its private benefit, in the private capacity to which we have alluded, and the influence thereof upon public health was purely incidental. Besides that, the element of negligence in the execution of the plan and in the use of the sewer by the city, as* effecting a trespass, clearly distinguishes the case from that under consideration.

The case of Chapman v. Rochester (110 N. Y., 273) is clearly distinguishable from this one. There was no evidence admitted or offered which tended to show that the city polluted this well or the sources of the supply. For aught that appears, it did no act which led to the state of this water. Had it turned any part of the sewerage or surface water from the streets into the well, the case would have heeu different. But there was no such element in the proof or offer of proof.

We do not think that the well in question was any part of the general system of water supply for the city. These public wells were isolated and independent contrivances for local convenience. The city derived no revenue from any of them. There was no element of a private business enterprise about them. The case of Milnes v. The Mayor of Huddersfield (L. R., 10 Queen’s Bench Div., 124), is not in point. It related to water supplied by the city for the use of which it derived a revenue as a private enterprise, precisely as it might have done from gas, or any other business of a private nature. Lord Ch. J. Coleridge says: Inasmuch as they were bound to supply him a wholesome article, and the whole carriage of the article from the reservoir to his house was through what belonged to and was under the domination of the corporation, the corporation would be liable.” How was the city bound to supply anything from this well? Hpon what consideration was it bound to do anything of the kind? Nor was there here any element of representation respecting the character of this water. The city had simply sunk a well to gather water which percolated through the earth in the ordinary way from the surface. The public could judge as well as the city authorities whether water thus collected was likely to be pure or impure, while in the other case the city professed to go away to sources remote from the observation of consumers and convey water by artificial means, for hire, into consumers houses or to convenient points for their use. This approximates a representation like that which is impliedly made by every offer of food for consumption. Undoubtedly where a city supplies water for domestic use, and receives pay, it is bound to furnish wholesome water and is liable if it does not, but this is not such a case. Assuming the correctness of the views which we have presented, it will be unprofitable to further consider the matters suggested in the able and exhaustive brief presented by appellant’s counsel.

The judgment is affirmed, with costs.

Barnard, P. J., and Dyicman, J., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J. :

text:
    WILLIAM AUGUSTUS WHITE, Plaintiff, v. GEORGE S. WHEELER and Others, Defendants.

      The legislature has power to make a deed, giren to a purchaser at a taec sale presumptive evidence of a good and sufficient title.

    In an action, brought for the recovery of real estate in the city of Brooklyn, the plaintiff’s title was founded upon a sale of the premises described in the complaint for the non-payment of taxes, under chapter 114 of 1888, which provides that the purchaser “shall take a good and sufficient title in fee simple absolute to the property sold of which the said deed shall be presumptive evidence.”

      Held, that the legislature had power to make the said deed presumptive evidence, and that the plaintiff was, therefore, bohnd to produce nothing but his deed from which his title was to be presumed to be valid.
    Motion for a new trial upon exceptions taken by the defendants upon the trial of this action at the Kings County Circuit, which were ordered to be heard in the first instance at the General Term of this court after a verdict of the jitry had been rendered in favor of the plaintiff by the direction of the court.
    This is an action of ejectment, the plaintiff claiming, as owner, to obtain possession of four lots of land situate in the city of Brooklyn, and damages for withholding the same. The answer of the defendant Wheeler denied the ownership of the plaintiff and his right of possession, and admitted that the defendant claimed title to the premises, and that the other defendants are and were at the commencement of the action tenants in possession of the premises under the defendant Wheeler. The cause was tried at the Kings County Circuit, and at the close of the testimony the court directed a verdict for the plaintiff and ordered that the defendant’s exceptions be heard in the first instance at the General Term.
    Morse, Low & Wallace, for the plaintiff.

      John J. Townsend, for the defendant.
   Barnard, P. J. :

It is provided by chapter 114, Laws of 1883, section 4, under which the sale in question was made, that the purchaser “ shall take a good and sufficient title in fee simple, absolute, to the property sold, of which the sand deed shall he presum/ptme evidence.” The objection that it was not in the power of the legislature to so declare is not good. The power has been usually exercised in official sales for taxes. The same provision exists as to a State comptroller’s deed, except that the words are absolute “ shall vest in the grantee an absolute estate in fee simple.” (2 R. S., [Bank’s 7th ed.], 1028, § 63.)

The Court -of Appeals made no question of the power of the legislature, but permitted proof of irregularities to destroy the conveyance. (Johnson v. Elwood, 53 N. Y., 431.) Chapter 65, Laws of 1878, and chapter 260, Laws of 1881, make similar deeds on tax sales evidence of title. The present law makes the deed presumptive evidence of title, thus in words making the conveyance conform, in legal effect, to the decision of the Court of Appeals as to deeds where the words are absolute, as to the transfer of title. The plaintiff is, therefore, bound to prove nothing but his deed, and his title was presumed. If he was to prove the negative as to the nonpayment of the tax to authorize the sale, the presumption of the deed is of no value to him. The uniform presumption is in favor of the performance of official duty. In the absence of proof to the contrary, the sale will and must be deemed to be based upon an existing arrear. The proof shows that there had been a ward map before this assessment was levied and that a new one had been made. The charter requires that all assessments must refer to said maps.” The charter referred to maps “ made or to be made,” and required, further, that they should remain with the assessors. The old map referred to these lots by one designation and number,rand the new map referred to them by different numbers, but according to the number on the new map. There was no necessity for the assessors to refer to both maps; both maps were in the office but only one was used as a basis for assessment, and that was in the assessor’s office for reference for any taxpayer. A reference to any former map is not required by the charter. The case shows that the board of assessors made their certificate and delivered the same to the register of arrears. The advertisement of sale, by the terms of the act, must state the ward in which the property to be sold is situate, but shall state that further particulars could be obtained at the register’s office, “ and it shall not be necessary to include any further particulars of the property to be sold.”

If the land was assessed properly, and the arrears properly determined and advertised properly, it is of no moment that the register, as a further description to that given by the map numbers which was contained in his certificate, also added the number of feet in a named street. It was an addition to the certificate required by law, and designed to aid the taxpayer by giving a more specific description. The evidence of the rental value was proper under section 1531 of the Code. The question of the validity of the arrears law was decided at the September Term of this court in the case of Terrel v. Wheeler (49 Hun, 262). We held in that case that the act was not in violation of the Constitution ; and, until the Court of Appeals pass upon the question, that conclusion is controlling in all actions involving the validity of the principles of the act itself.

The exceptions should be overruled and the plaintiff have judgment on the verdict, with costs.

Pbatt, J., concurred.

Exceptions overruled and judgment for the plaintiff on the verdict.


author: Barnard, P. J.:

text:
    FREDERICK H. SMITH, Appellant, v. THE NATIONAL BENEFIT SOCIETY OF THE CITY OF NEW YORK, Respondent.

      An insurance policy, obtained by a person with intent to commit suicide, is mid although it contains no condition as to the ma/nner of death.

    John Tyler, who, in June, 1886, was indebted to the plaintiff in the amount of over $100,000, procured from the defendant an insurance upon his life for that sum, and subsequently, under a rule of the defendant, the plaintiff was substituted as beneficiary under the policy. Tyler died on November 11,1886. In an action, brought by the plaintiff to recover the amount of the policy, it was proved on the trial that the deceased obtained the policy with intent to take his own life, and that he was sane at the time he obtained it.
    The deceased, who was poor and frequently in need of money, within the year previous to his death obtained insurance bn his life in different companies to the amount of $282,000, divided among thirty-six different companies, none of policies issued to him containing any conditions as to the cause of death.

      Held, that there was a legal fraud in the inception of the policy, and that it never had any binding force in Tyler’s hands.
    That the plaintiff stood in no better position with referenee to the policy than Tyler,

      That the fact that the deceased had designated the plaintiff as a beneficiary did not require the court to exclude evidence of his declaration, made the day preceding his suicide, as he was the owner of the policy until he died, and the plaintiff was in no better condition in respect to the policy than the decedent’s representatives would have been if they had brought the action.

      Swift v. Massachusetts Mut. Life Insurance Company (63 N. Y., 186) followed.
    Appeal by the plaintiff from a judgment recovered at the Kings County Circuit Court on February 6, 1888, and entered in the office of the clerk of Kings county on February 24, 1888 ; and also from an order denying a motion made by the plaintiff for a new trial upon the minutes of the justice presiding at the trial, which was dated February 11, 1888.

      Joseph A. Shoudy, for the appellant.

      A. J. Perry, for the respondent.
   Barnard, P. J.:

The plaintiff was creditor of one John Tyler to the amount of over $100,000 Tyler in June, 1886, procured from the defendant an insurance on his life for that sum, and subsequently, under a rule of the defendant, the plaintiff was substituted as beneficiary under the policy. Tyler died November 11, 1886. The plaintiff furnished proofs of death, and the loss was not paid. This action is brought to recover the amount of the policy. The defense is that the insured, Tyler, obtained the policy with the intent to commit suicide and thus to defraud the insurance company out of the insurance money. The policy contained no clause that death by suicide avoided the policy. The proof is abundant that the deceased obtained the policy with the intent to take his own life, and that he was sane at the time he obtained the policy, and the jury so found. The deceased was poor and frequently in need of money, and within the year previous to his death obtained insurance on his life in different companies to the amount of $282,000, divided among thirty-six different companies.

On the day before his death he wrote to his mother that aill his policies were in companies which make “ no conditions as to cause of death ” * "x" * “ so that my plans are so laid that if I cannot benefit or help myself, I can help those whom I should help if I could.” On the day preceding the date of this letter, he had given directions for his burial, and indicated suicide by the words, “I assume all responsibility for this and other acts of mine.” The policy was clearly a fraud upon the defendant, without any condition that suicide avoided the policy. The deceased designed to get a large aggregate of insurance. He was unable and did not intend to continue the payment of the premium until death came naturally, but his purpose was to provide for creditors and family by causing his own death. This was a legal fraud in its inception, and a policy thus obtained never had any binding force in his hands. The deceased had the right, with the consent of the company, to change his beneficiary from time to time, without the consent of such payee or beneficiary. (Laws of 1883, chap. 175, § 18.) Hnder this section the plaintiff was designated, and the designation was never changed. ' The plaintiff got no separate standing by the designation under the policy before the date of the death ; before that the sole right was in Tyler. (Hellenberg v. District No. 1, I. O. of B. B., 94 N. Y., 580.) The deceased, by his designation of plaintiff as beneficiary did not make a case to exclude evidence of his declaration.

He stood as owner until he died, and the plaintiff was in no better condition in respect to the policy than if the decedent’s representative had brought the action. The ease is, therefore, different from that class of cases which hold that evidence of the declaration of an assignor cannot be received to impeach the title of the assignee, and falls under Swift v. Massachusetts Mutual Life Insurance Company (63 N. Y., 186.) The charge of the judge was correct. The jury were told that if the deceased took out the policy with the intent to commit suicide, and did, in fact, commit suicide in pursuance of that intent, the action failed if the deceased was sane when he took his own life, if he did so take it. This covers the whole case, and the request to introduce an application of other questions on probable conclusions from the evidence was properly refused. These considerations seem to cover the entire case, and, therefore, the judgment should be affirmed, with costs.

Pbatt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    WILLIAM COLE, as one of the Executors and Trustees of the Trusts Created in and by the Last Will and Testament of CLARISSA F. PRINCE, Deceased Respondent, v. CHARLES E. FROST, Individually and as One of the Executors and Trustees of the Trusts Created by the Said Will, and THOMAS E. SIMMONS, THE METHODIST EPISCOPAL HOSPITAL, in the City of Brooklyn, Appellants, and HARRIET A. DOTY and Others, Respondents.

      To what corporations a, devise or bequest is void, if not made at least two months before the death of the testator — section 6 of chapter 319 of 1-848.
    The provision contained in section 6 of chapter 319 of 1848, providing for the incorporation of benevolent, charitable, scientific and missionary societies, which declares “that no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator,” is not applicable to a corporation created under chapter 404 of 1881, section 7 of which provides that “the said corporation are authorized to take by purchase, devise, bequest or otherwise, and may hold, transfer and convey, for the purposes of said hospital, any real and personal property so far forth as the same is in accordance with the general laws of this State, and not otherwise.”

      Held, that the provisions in the act (chap. 404 of 1881) had no special reference to wills, but had regard to the general powers and restrictions concerning the taking, holding and managing of property by all corporations.
    The legislature did not intend the restriction in the Laws of 1848 to be a general law, and it does not apply to corporations created previous to the passing of that statute, or to corporations organized under other acts passed since 1848, except so far as the restriction has been made applicable to such corporations by their respective charters.

      Stephenson v. Short (92 N. Y., 433); Kerr v. Dougherty (79 id., 352) distinguished.
    Appeal by the defendants Charles E. Frost, Thomas E. Simmons and the Methodist Episcopal Hospital, in the city of Brooklyn, from a judgment entered in the office of the clerk of Kings county on October 31, 1888, after a trial of the action at a Special Term, held in the city of Brooklyn on the 31st day of October, 1888, by the court without a jury.
    Clarissa F. Prince died at Brooklyn on the 28th day of October, 1885, leaving a last will and testament and a codicil. The will was dated on October 19,1885, nine days before her death. The codicil, which was dated October 23, 1885, five days before her death, provided as follows: “ First. I hereby except from any distributive share of my estate Julia C. Farrier (one of her heirs-at-law and next of kin), who is to receive no part or portion of my estate, and the share or portion which would have gone to her by my said annexed will I give and bequeath to the Seney Hospital of Brooklyn.”

      P. V. R. Stanton, for the appellants Frost and Simmons.

      G. G. & F. Reynolds, for the Methodist Episcopal Hospital.

      James & Thomas H. Troy, for the plaintiff, respondent.
   Pratt, J.:

The questions in this case are fully discussed in the opinion rendered at Special Term, in which we concur with a single exception, to wit, that part that holds that the legacy to the Seney Hospital is illegal and void.

The hospital charter, which was granted in 1881, contains these words: “ The said corporation are authorized to take by purchase, devise, bequest or otherwise, and may hold, transfer and convey for the purposes of said hospital, any real and personal property, so far forth as the same is in accordance with the general laws of this State, and not otherwise,” and the question, therefore, is whether the restriction contained in section 6 of chapter 319 of the Laws of 1848 is applicable to this case; or, in other words, whether the said statute of 1848 is a general law of the State. The plaintiff claims that it is a general law because it applies to the whole State, and to every inhabitant thereof; also to every benevolent, charitable and missionary society. It does apply to the whole State, but it does not apply to corporations created previously to the passing of that statute, neither does it affect corporations organized under other acts passed since 1848, except so far as the restriction has been made applicable in the respective charters. It must now be regarded as settled law that all corporations, not subjected in terms to the restrictions of that act, may take under wills as if no such act existed. I cannot find that the precise language used in this will has been finally adjudicated in reference to the application of the restriction contained in the act of 1848. In the case of Stephenson v. Short (92 N. Y., 433), it was held that a charter containing the words “ subject to the provisions of law relating to bequests and devises to religious societies,” was within the .restriction, but it will be observed that this is a widely different expression from the one contained in defendant’s charter, “ subject to the general laws of the State,” etc. The act of 1848 is a “ provision of law relating to bequests and devises,” but it does not follow that it is a general law, and it is only to general law and not to all provisions of law that the defendant is subjected.

The case of Kerr v. Dougherty (79 N. Y., 352), was similar in principle, the words of the charter being “ to take subject to existing laws,” and as amended (chap. 129 of 1870) “to take and hold by gift, grant or devise,-or otherwise, subject to all the provisions of law relating to devises and bequests by last will and testament.” This case was held to come under the restriction. The legislature never intended the restriction in law of 1848 to be a general law, if it had, language would have been used to effectuate such a purpose. The restriction was only to such corporations as were organized under that act. Had the language been that no religions or benevolent corporation in this State shall hereafter take, etc., under a will made within two months prior to the death of the testator, the intent would have been plain. An instance of such intent to make a general law is manifested in the act of 1860 (chap. 360), and it is to such general laws that the language of defendant’s charter has reference. The prohibition in the defendant’s charter (as the plaintiff terms it) has no special inference to wills, but has regard to the general powers and restrictions concerning the taking, holding and management of property by all corporations. There are many general laws of the State relating to corporations and the management of their affairs and property, and many laws relative to wills, and it was to these law's the defendant’s charter was made subject, and only those. The act of 1848 being specific and relating only to corporations organized under it, the restriction does not apply to defendant’s charter. The act of 1848 should not be strained to cover cases that do not fairly fall under its terms. When the legislature intends to make a special charter, subject to the two-months limitation contained in the act of 1848, it is fair to presume that it will use appropriate language to accomplish that result, when it fails to do so it is not within the province of the courts to extend such limitation over it.

It seems to us that in no sense is the law of 1848 a general law, except that it furnishes a general scheme for the promotion of benevolent and religious corporations, and upon all such as are formed under it the restriction applies and to none others. The case of Hollis v. Drew Theological Seminary, in its reasoning, seems to point to this result, and we think it decisive of this point.

The judgment of the Special Term must, therefore, be modified so far as it declares the bequest to the Seney Hospital of no eflect, by holding that the same is valid, and after such modification the judgment affirmed, with costs to be paid out of the estate.

Dyicman, J., concurred ; Barnard, P. J., not sitting.

Judgment modified so as to uphold the bequests to Seney Hospital, otherwise affirmed, with costs out of the estate.


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    ALEXANDER G. BLACK, Appellant, v. THE CITY OF BROOKLYN and JOHN C. McGUIRE, Registrar of Arrears, Respondents.

      A church sold under aforeclostcre of a mortgage to an individual, who still permits it to be used for public worship, is not exempt from taxation.

    A church edifice, erected find used for the purposes of religious worship, and subsequently sold under a judgment of foreclosure to a parly, who for a time, during which certain taxes are levied upon the property, allows it to be used for public worship, is not entitled to exemption from such taxes, nor can the purchaser maintain an action to have such taxes declared void.

      People ex rel. Rorke v. Assessors (32 Hun, 457) followed.
    The law was intended to benefit church societies and incorporations; and as no religious society can be benefited by the exemption from taxation of the property in the hands of a private individual, he cannot maintain an action to have the taxes declared void.
    Appeal from a judgment recovered upon the trial of this action at a Special Term of this court, held in the city of Brooklyn on October 3, 1888, and entered in the office of the clerk of Kings county on October 4,1888, dismissing the complaint, with costs, and dissolving a preliminary injunction heretofore granted in this action.

      Arnold & Greene, for the appellant.

      William T. Gilbert, for the respondents.
   Dykman, J.:

It is the object of this action to secure exemption from taxation for certain real property in the city of Brooklyn, and to obtain a judgment which shall declare certain taxes levied upon the property illegal and void.

There was erected upon the premises in question, many years ago, a church edifice, which was devoted to the purposes of religious worship. There was a mortgage upon the property, which was foreclosed, and the property was sold under the judgment in that action, and the plaintiff became the purchaser of the property at such sale, and received the deed of conveyance therefor in March, 1885, and has since that time been the individual owner thereof. The property was not assessed for taxation, and no tax was levied against the same until the plaintiff became the owner. It was used as a place of public worship until August, 1887, and, as we gather the facts, it has not since been used for any purpose, but has been in the market for sale as the private property of the plaintiff.

The plaintiff’s claim for exemption for this property is based upon the statute which exempts from taxation “ every building erected for the use of a college, incorporated academy or other seminary of learning, every building for public worship), every school-house, court-house and jail, and the several lots whereon such buildings are situated, and the furniture belonging to each of them.” The statute quoted was not made for this plaintiff. If he can successfully invoke its provisions to secure immunity from taxation for the property in question, then any private property hired out and used for educational or religious purposes will escape taxation for the same reason. Such never could have been the intention of the legislature, and the statute is not fairly susceptible of such interpretation. The law was intended to benefit church societies and incorporations, and seminaries of learning. Ho religious society would be benefited by the exemption of this property from' taxation in the hands of the plaintiff. lie is the only party interested in the question, and no other party will be prejudiced by a sale of the property for unpaid taxes.

There .was a similar question presented to us in People ex rel. Rorke v. Assessors (32 Hun, 457), and we refused the exemption; and our decision was affirmed by the Court of Appeals. The reasons which induced the conclusion reached in that case have application here, and, in our view, they are unanswerable.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM WARDROP, Appellant, v. JOHN P. ADAMS, Commissioner of the Department of City Works, in and for the City of Brooklyn, Respondent.

      Chapter 708 of 1887, giving a preference to honorably discha/rged soldiers and sailors — it does not entitle a veteran, whose office is abolished, to displace a/notiwr officer to whose duties the duties of the office so abolished home been added.

    The relator, an honorably discharged veteran from the Union army,* who had held the position of lamp clerk in the department of city works, in the city of Brooklyn, was removed from his position by the commissioner of city works, who had abolished the position upon economical grounds, and attached the duties of that office to those of a clerk who held the office of assistant notice and complaint clerk. The latter clerk had since performed the duties which were done by the relator, as well as those done by the notice and complaint clerk, before the reorganization of the office.
    No claim was made that the commissioner did not act in good faith.

      Held, that a claim made by the relator that the entire office, as reconstructed, should have been given to him, under the provisions contained in chapter 708 of the Laws of 1887, could not be sustained, as the spirit of that act did not require that if an office was abolished the incumbent, if a veteran, should displace another officer who was not a veteran
    Appeal by the relator from an order made at the Kings County Special Term on Hovember 13, 1888, and entered in the office of the cleric in the county of Kings on the same day, denying the prayer of the relator’s petition for a mcmdam^s.

      Sidney Williams, for the relator, apppellant.

      Almet F. Jenks, for the respondent.
   Barnard, P. J.:

The relator is an honorably discharged veteran from the Union army. He, held the position of lamp clerk in the department of city works in the city of Brooklyn.

There was no cause for his removal from his position, but the commissioner abolished the position upon economical grounds, and attached its duties to the position of assistant notice and complaint clerk. This clerk was an existing officer at the time of the change, and he has since performed the duties which were done by relator as well as those done.by the notice' and complaint clerk before the reorganization of the office. There is no claim that the commissioner did not act in good faith. Was there a removal of an officer without cause assigned and without notice % The Court of Appeals in Phillips v. The Mayor (88 N. Y., 245) held that the right to hold office during good behavior did not prevent the discharge of a clerk discharged without a hearing where the clerkship was abrogated.

In the case of Langdon v. The Mayor (92 N. Y., 427) it was held that a clerk who held office during good behavior could be discharged without notice when the-duties were so diminished that the.services of the clerk were no longer needed. The claim is not well founded that the entire office, as reconstructed, should have been given to relator. If lie was properly discharged because his office was not needed, he had no claim to be appointed to the office of complaint clerk. Ho reason is given other than the fact that the complaint clerk is not a veteran. The spirit of the act in respect to veterans (chap. 708, Laws of 1887) does not require that if an office is abolished the incumbent, if a veteran, shall displace another officer who is not such.

The order should be affirmed, with costs.

Pratt, J., concurred.

Order affirmed, with costs and disbursements.


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    ELLA M. HAYNES, Respondent, v. CATHARINE M. SHERMAN, Individually and as Sole Executrix of and Trustee UNDER THE LAST WlLL AND TESTAMENT OF ELIJAH T. SHERMAN, Deceased, and Others, Appellants.

      Trust for a wife ancl family with a devise over — afee not given to the wife—illegal provision as to the duration of the trust — when the trust will be sustained, so fan' as it is legal—estate, vested on the death of the testator.

    Elijah T. Sherman, who died in 1886, leaving a widow and six children, left a last will by which lie made his widow his sole executrix, with power to sell all his real estate, and gave to her all his remaining property, after the payment of his just debts, “in trust, nevertheless, to have and to hold the same, and use so much of the income and principal as she may deem necessary for her support, and the support of our children, until our youngest child now living sliall arrive at the age of twenty-one years, or would, arrive at that age if living; and at that time I order and direct my said estate to be divided among my legal heirs then living in such manner and proportions as they, and each of them, would be entitled under the laws of the State of New York if I had died intestate.”

      Held, that as the trust was for the wife and the family, with a devise over after the trust ceased, that the testator did not intend to gire the entire fee to his wife.

      Wager v. Wager (96 N. Y., 164) followed; Campbell v. Beaumont (91 N. Y., 464) distinguished.
    That the primary disposition was designed to protect the widow and children through the minority of the youngest child, and that the direction contained therein, providing that in case of her death, before "attaining the age of twenty-one, the trust should be continued up to the day at which the child would have reached its majority if it had lived, was not so interwoven with the valid trust as that it must fall with the illegal limitations incident to it.
    That the gift to the children was absolute, and that only the time when they were to take possession was postponed, and that each child had a vested remainder in fee, subject to be divested by death under age and subject to the trust, to continue during the minority named in the will, which would terminate when the youngest child died, if he should die under age.
    Appeal from so much of the judgment of the court rendered upon the trial of this action at a Special Term, held in the city of Brooklyn on the 5th day of May, 1888, by the court, without a jury, which was entered in the office of the clerk of Kings county on May 8, 1888, as adjudged and decreed that the attempted disposition of the defendant’s, Catharine M. Sherman, testator’s property, by his will, was void because it required a suspension of the power of alienation of the said property for a definite term of years, and that the testator Elijah T. Sherman died intestate as to the said real property.

      S. P. & J. McL. Nash, for the appellants.

      Abel E. Blackman, for the respondent.
   Barnard, P. J.:

Elijah T. Sherman died in 1886, leaving a widow and six children. The youngest child would become of age in 1893. The testator left a will by which he made his widow sole executrix, with power of sale of all his estate. .

He disposed of all his property in the following clause: “ First. After paying my just debts, I give and devise and bequeath all’my estate, real and personal, and mixed, and wherever situated, to my wife Catherine M. Sherman, in trust, nevertheless, to have and to hold the same, and use so much of the income and principal as she may deem necessary for her support and the support of our children until our youngest child, now living, shall arrive at the age of twenty-one years, or would arrive at that age if living; and at that time I order and direct my said estate to be divpled among my legal heirs, then living, in such manner and proportion as they and each of them would be entitled under the laws of the State of New York.” Under this clause the widow did not take a fee. The caséis entirely different from Campbell v. Beaumont (91 N. Y., 464). In that case the property was all left to be used by the wife “ for her sole use and benefit,” and the remains thereof the testator expressed a wish and desire should be received and enjoyed by her son. Here the trust is for the wife and family, with a devise over after the trust ceases, thus clearly showing an intent not to give the entire fee to the wife. (Wager v. Wager, 96 N. Y., 164.) Does the clause in question create an illegal suspension of the power of alienation ? The question is presented by the use of the words “ or would arrive at that age if living,” after fixing a limit to the time when the youngest child became of age. A trust limited solely by time is unauthorized and void, but the rule is equally well settled that an invalid limitation will not be allowed to invalidate the primary disposition of the will. An invalid limitation will be cut off from a trust which is not an entirety. The trust, during minority, is valid, and it may never happen that the child will die under age. The primary disposition is designed to protect the widow and children during the minority of this child. That the testator, in case of death, provided that the trust continued up to a date at which the child would reSeh his majority if he had lived is not so interwoven with the valid mist as that it must fall with the illegal limitations incident to the trust. (Tiers v. Tiers, 98 N. Y., 568.) There is nothing in this will, except infancy, which restrains alienation by the children. The gift to them is absolute, and the time when they are to take possession is only postponed; each child has a vested remainder in fee, subject to be divested by death under age, and subject to the trust during the minority of the child named in the will. This trust will terminate when the child dies, if he should die under age. A limitation during minority is legal and valid. (Beardsley v. Hitchcock, 96 N. Y., 201.)

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

Pbatt, J., concurred.

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


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    GEORGE McGIBBON, Appellant, v. WHITTEMORE BAXTER, Respondent.

      When an owner, setting ajñ'e on his own land, is not liable for injuries caused by it to a neighbor.

    One of two adjoining land owners set fire to some brush heaps on his own land at a point where there was a pond-hole originally made by fires, which in wet time was filled with water, distant some 100 yards from the land of the adjoining owner. The fire communicated to the soil and continued to burn slowly for six weeks or more and then entered upon and damaged the land of the adjoining owner, >

      Held, that the owner setting fire to the brush was not liable for the injuries caused by the fire.
    That the fact that the fire was started in a very dry time, and that nothing was done by him to prevent its spread, did not create a liability on his part for its consequences.

      Clark v. Foot (8 Johns., 421); Stuart v. Hawley (22 Barb., 619) followed.

      Appeal by the plaintiff from a judgment rendered upon the trial of an action at the Orange County Circuit, at which a nonsuit was granted, which was entered on May 5, 1888, in the office of the clerk of Orange county, dismissing the complaint in this action, with costs.

      A. S. Cassidy & Sons, for the appellant.

      E. A. Brewster, for the respondent.
   Barnard, P. J.:

There were no sufficient facts proven to make a case for a jury. The plaintiff and defendant are adjoining owners of land. The defendant set fire to some brush heaps on his own land. The fire communicated to the soil, and slowly continued to burn for six weeks or more, and then entered upon plaintiff’s land and did him injury. The place of the fire at the starting point was some 100 yards from plaintiff. There was a pond hole originally made by fires, and in a wet time filled with water. It was a very dry time when the fire was started, and no rains of any consequence fell, and the drouth continued until the snow of December put the fire out. There is no conflict in the cases upon the subject. A man may set fire to 1ns own, and lie is not liable to an action if the fire escape into his neighbor’s premises. The case is not varied if the fire is started in a dry time and nothing is done to prevent its spread. (Clark v. Foot, 8 Johns., 421; Stuart v. Hawley, 22 Barb., 619.) The case is a very strong one for the defendant, because it was started so far from the plaintiff’s land, and was only to burn some brush heaps, and in view of the fact that it burnt six weeks to reach plaintiff’s. A drouth of this duration could not be anticipated in the fall of the year.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    JEAN R. STEBBINS and JOHN C. WINSLOW, Respondents, v. JAMES KAY, PATRICK R. GAINS and JOHN GIVEN, Appellants.

      Legislative potoer, in the same act, to create a tax and apportion it on a district of assessment established by it.

    By chapter 531 of 1873, as amended by chapter 264 of 1874, the legislature laid out the Gravesend avenue, in the city of Brooklyn, and created a district of assessment, which was to be determined after notice had been given to all persons interested in the matter, and directed that the expense of the improvement be placed upon the district of assessment, 11 estimated according to the ownership per lineal foot on said avenue.”

      Held, that the legislature had power to lay the tax and to apportion it, in the law which created the tax.

      Matter of Van Antwerp (56 N. Y., 261) followed; Stuart v. Palmer (74 id., 183) distinguished.
    That, the apportionment having been made according to the legislative direction, the omission of any statement to that effect in the certificate of the commissioners was not important.

      Matter of Cameron (50 N. Y., 502); Matter of Hearn (96 id., 378) distinguished.
    A statement of the ordinary taxes, and of the amount due for the opening of the Gravesend avenue, was annexed to a warrant issued to the collector of the town of Gravesend.

      Held, that the omission of the word “ assessment ” in the warrant was not material.
    Appeal by the defendants from a judgment in favor of the plaintiffs, recovered upon tlie trial of tlie action before the court without a jury at the Kings County Circuit, which was entered in the office of the clerk of Kings county on August 30,1888. In this action of ejectment, the plaintiffs claimed title under a deed to them by the comptroller of the State of New York, given under a tax sale made by him of the land in question. Tlie sale was for the total assessments levied under act chapter 531 of the Laws of 1873, as amended by act chapter 264 of the Laws of 1874, for the opening and improving of Gravesend avenue.

      William J. Gaynor, for the appellants.

      Welton C. Percy, for the respondents.
   Barnard, P. J.:

The legislature, by chapter 531, Laws of 1873, laid out the Gravesend avenue. This act was amended by chapter 264, Laws of 1874. A district of assessment was provided for upon notice to all persons interested, and proceedings were instituted to the end that the landowner should be paid for the land taken. (Sec. 12.) So far, the law seems to be without valid objection under the case of Stuart v. Palmer (74 N. Y., 183.) The Gravesend act then provides for the improvement of the avenue after the report upon the opening is confirmed, and directs that the expenses be apportioned upon the district of assessment, estimated according to the ownership per lineal foot of frontage on said avenue.” The act in question, in the case of Stewart v. Palmer, directed this expense to be assessed upon the owner, and no notice was provided for to the owner. In the act under consideration, the legislature apportions the tax per lineal foot. The sole question, then, under this section, is, whether the legislature could lay the tax and apportion it in the law which creates the tax. The legislature has this power. (Matter of Van Antwerp, 56 N. Y., 261.) There the act imposed two-thirds of the assessment upon a district of assessment. The case of Stuart v. Palmer disapproves of a tax arbitrarily imposed, “without reference to some system of just apportionment.” The apportionment of the tax is part of the taxing power. (People ex rel. Griffin v. Mayor, 4 N. Y., 419; Litchfield v. Vernon, 41 id., 123 ; Gordon v. Cornes, 47 id., 608; Genet v. City of Brooklyn, 99 id., 296.) The court say, in this case, the legislature may itself fix a district of assessment, or the power may be delegated by the supreme legislative body to “ other official agencies,” as may also the incidentals of the taxing power, such as the apportionment and distribution of the tax as between the person and property on which it is laid. The assessment and apportionment of the tax upon the land equally per lineal foot was a valid legislative act, within the principle of the cases. The remaining objections are to the regularity of the proceedings. The case shows, and it is found, that the apportionment was according to the legislative directions. The omission of the statement of this fact from the certificate of the commissioners was unimportant. The assessment was not made by the commissioners, and, in this respect, the case is different from In Matter of Cameron (50 N. Y., 502), and Matter of Hearn (96 id., 378).

The warrant of the collector in 1874 was sufficient. The ordinary taxes and the amounts due for the opening of Gravesend avenue were all annexed to the warrant. The omission of the word assessment wás not material. An order to collect the tax annexed to the warrant would cover the assessment in question.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurred.; Pratt, J., dissented.

Judgment affirmed, with costs.