author: Landon, J.:

text:
    ROBERT McCREA, Respondent, v. GEORGE CHAHOON and Others, as the Board of Supervisors of Clinton County and Others, Appellants.

      Taxpayers’ suit — claims audited by the board of town cmditors cannot be afterwa/i’ds audited by the board of supervisors — action against several claima/nts hewing distinct claims— who are proper parties thereto.

    Upon an appeal from an interlocutory judgment overruling demurrers to tire complaint, it appeared that an action was brought by he plaintiff, as a taxpayer of the town of Champlain in the county of Clinton, who had been assessed and paid taxes within a year from the time of the commencement of the action in that town, upon an assessment which exceeded $100, against the board of supervisors of the said county, the supervisor and collector of taxes of said town and fourteen other persons, twelve of whom had separate accounts and claims, and two of whom jointly had an account and claim against the said town, to annul an alleged illegal act on the part of the said board, and to prevent such act from being carried out by the supervisor and collector of taxes of said town, and the receipt of the amount of such claims by the respective claimants.
    The complaint alleged that the claimants, who were made defendants, had claims against the town, and that the amount of said claims had been presented to the hoard of town audit of the town of Champlain, and that three of them were entirely rejected because not itemized, and that the other ten were, respectively, only in part allowed, and the balance rejected, because, as alleged by the board of town audit, the goods furnished and the services performed, which made up the claims, were not worth more than the sum allowed.
    That the same claims were presented to the board of supervisors, referred to a committee, and upon the coming in of its report the board of supervisors directed that each of the said claimants be allowed sums in addition to the amounts audited and allowed by the board of town audit, and that a warrant, duly executed, had been issued by the board of supervisors to the collector, commanding him to collect taxes, including the amount of the aforesaid audits.
    The complaint prayed for a judgment prohibiting the defendants, supervisor and collector, from paying over the amount allowed in addition to the town audit, and for the restitution of any sums paid, and for such other relief as was by law provided. The defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action against them, that there was a misjoinder of parties and that several causes of action had been improperly united.

      Held, that the complaint alleged a good cause of action against the supervisor and collector of the town of Champlain and the several defendants in whose favor the hoard of supervisors audited the claims presented hy them against the town, hut did not state a cause of action against the hoard of supervisors, nor was it a necessary or proper party to the action.
    That the hoard of town auditors and the hoard of supervisors have each jurisdiction to audit accounts chargeable against the town, except in the cases in which the statute, chapter 68, Laws of 1860, confers exclusive jurisdiction upon the hoard of town auditors.
    That if the hoard of town auditors has acquired jurisdiction, that jurisdiction is full and complete, and its action within its jurisdiction, so far as it goes, completes the matter, and if the hoard of supervisors subsequently acts upon the matter, it necessarily must limit its action to questions yet open, such as the inclusion of the amount in the tax levy.
    That as it was not alleged that the claimants, whose accounts were rejected hy the hoard of town auditors as “ not itemized,” had, after the rejection of their hills there, given the items and then presented the accounts to the board of supervisors, it could not he assumed, upon demurrer, that the hoard of supervisors had jurisdiction to audit the hills, and that it must he assumed that the subsequent audit and allowance hy the hoard of supervisors of the same claims and accounts previously passed upon hy the hoard of town-auditors, were void.
    That as the hoai'd of supervisors had completed its action in the premises, and neither threatened to do, nor could do anything further, no preventative relief could he had against it, and that it had no interest in the subject-matter of the action.
    That it was proper for the plaintiff to bring this action against such parties only as it was needful to hear or to restrain, in order to prevent the waste and injury about to he effected hy the payment of the illegal allowances made hy the hoard of supervisors.
    It was urged that there was no joint cause of action stated against the defendants, in whose favor the audits were, and that each one was only interested in his own and not in his co-defendant’s claim.

      Held, that as this was an equity action in which each claimant was interested in the single resolution of the hoard of supervisors, in which all the audits were embraced, that the joinder of all the claimants was authorized hy sections 442 and 447 of the Code of Civil Procedure, and hy the recognized practice of the court.
    Appeal by the defendants from an interlocutory judgment rendered at a Special Term held in Clinton county, which was entered in the office of the clerk of Clinton county on the 30th day of November, 1888, by which appeal the appellants intended to bring up for review the orders of the Special Term in this case upon wbicb tbe said interlocutory judgment was based, and wbicb were entered in tbe said clerk’s office on November 1, 1888.
    Tbis action was brought by tbe plaintiff as a taxpayer of tbe town of Champlain in the county of Clinton, who has been assessed and has paid taxes within a year from tbe time of tbe commencement of tbe action in that town, such taxes being assessed upon an amount exceeding tbe sum of $100, against tbe board of supervisors of said county, tbe. supervisor and collector of taxes of said town and fourteen other persons, twelve of whom have separate accounts and claims, and two of whom jointly have an account and cl aim against said town, to annul an alleged illegal act on tbe part of said board, to prevent such act from being carried out by tbe supervisor and collector of taxes of said town, and tbe receipt of tbe amount of such claim by tbe respective claimants.
    Tbe complaint alleged that tbe several defendants, such claimants, bad claims which were town charges only and not county charges.Tbe amount of each claim being stated, that such claims were, respectively, presented to the board of town audit of tbe town of Champlain, and three of them were entirely rejected because not itemized, and tbe other ten were, respectively, only in. part allowed and the balance rejected because, as alleged by the board of audit, tbe goods furnished and tbe services performed, that made up tbe claims, were not worth more than tbe sum allowed.
    Tbe complaint further alleged that these same claims were, by tbe respective claimants, presented to the said board of supervisors with tbe request to audit and allow them against said town of Champlain; that said board thereupon appointed a committee to examine and report upon said claims, and upon the coming in of tbe said report, tbe said board resolved and directed that each of tbe said claimants be allowed sums in addition to tbe amount audited and allowed upon said respective claims by said board of audit of tbe town of Champlain, said several amounts being particularly specified in tbe complaint, and that said board of supervisors by such resolution directed that tbe said several amounts audited by it be substituted for tbe amount allowed on said claims by the said board of audit of tbe said town of Champlain, thereby allowing and auditing against said town of Champlain tbe sum of $426.10, illegally and without authority, and imposing said sum as a charge upon said town.

      That thereafter, and on or about the 9th day of December, 1887, the said board of supervisors, or a majority of them, issued their warrant to the defendant, Napoleon Sanschagrin, the collector of taxes of the town of Champlain, commanding him to collect a large amount of taxes assessed upon said .town to wit: the sum of over $13,000, and pay over the same or part of the same to the defendant, James Averill, Jr., as supervisor of the town of Champlain for town charges assessed upon said town, including the said amount so by them illegally audited against said town.
    That the assessment-roll of the said town, with the said warrant delivered to the said collector, contains a direction to said collector to pay over to the said claimants the amounts on their said respective claims allowed by the said board of town auditors, and the additional amounts allowed and audited by the said board of supervisors to said claimants, and that plaintiff has been informed by the defendant, the said supervisor of said town, that he expects to pay said claimants the amount so additionally allowed out of the funds of and from the taxes levied upon said town.
    The complaint prayed the judgment of the court prohibiting and enjoining the said defendants, the said supervisor and the said collector of the town of Champlain, from paying over the amount so additionally allowed said claimants by said board of supervisors or any other or greater sums than allowed them by the board of audit of said town of Champlain, and directing the restitution of said sums, if heretofore or hereafter paid said claimants, and for such further relief as by the law provided.
    The defendants, constituting the board of supervisors, demurred to the complaint on the ground:

      First. That the complaint does not state facts sufficient to constitute a cause of action against them.

      Second. That causes of action have been improperly united. “ These defendants should not be joined with all the othe? defendants named in one and the same action.” They should not be joined with either of the defendants named, as presenting claims for audit to said board of supervisors, and if with anyone of such defendants, then with only one. That several causes of action, one against each of the persons alleged to have presented claims have been improperly, united.

      Each of the defendants, snch claimants, except Eveline Smith, and the defendants, constituting the board of supervisors, demurred to the complaint on the same grounds as first above stated; and, second, that causes of action have been improperly joined; that such last-named defendants should not be joined with the defendants named as constituting the board of supervisors of Clinton county; that the defendants, such claimants, should not be joined together each with the other in one action; that if any cause of action is stated in the complaint against any of such claimants, defendants, a separate cause of action against each of the defendants alleged to have presented claims is stated, and it is improper to unite them in one action.

      & A. Kellogg, for the appellants.

      Royal Oorbin, for the respondent..
   Landon, J.:

We think the complaint alleges a cause of action against the supervisor and collector of the town of Champlain and the several defendants in whose favor the board of supervisors audited the claim presented by them against the town, but we do not think that a cause of action is stated against the board of supervisors, nor that they are necessary or proper parties to the action.

The action is brought by a taxpayer to prevent waste or injury to the town of Champlain or its taxpayers. (Code Civil Pro., § 1925 ; chap. 673, Laws 1887.)

The injury threatened is the payment by the collector to the supervisor and by the supervisor to the several claimants of the amounts respectively allowed to them and charged to the town of Champlain by the board of supervisors in excess of the amounts allowed -by the board of town auditors upon their previous audit of the same claims. The board of town auditors and the board of supervisors of the county have concurrent jurisdiction to audit accounts chargeable against the town, except in the cases in which the statute (chap. 58, Laws of 1860), confers exclusive jurisdiction upon the board of town auditors. This exception is not here material. The board of town auditors are authorized by chapter 305, Laws 1840, to audit and allow “ the accounts of all charges and claims payable by their respective towns.” The board of supervisors are authorized “ to audit the accounts of town officers and other persons against their respective towns, and to direct the raising of such sums as may be necessary to defray the same.” (1 R. S., 367, § 4.)

The prior audit by the board of town auditors is conclusive and cannot be reviewed or reversed by the board of supervisors. (Osterhoudt v. Rigney, 98 N. Y., 222, 234.) If the board of town auditors first .acquire jurisdiction, that jurisdiction is full and complete, and their action within their jurisdiction, so far as it goes, completes the matter, and if the board of supervisors subsequently act upon the matter, they necessarily must limit their action to questions yet open, such as the inclusion of the amount in the tax levy.

Three of the accounts were rejected by the board of town auditors because “ not itemized.” This was not a rejection upon the merits, but was conclusive against the accounts in the form in which they were presented to the board of town auditors. A s the complaint is framed, it would be competent for the plaintiff to prove that the same accounts in the same form were presented to the board of supervisors. It doubtless would be competent for the claimants after the rejection of their bills because “not itemized” to reconstruct them and give the items, and thus give the board of supervisors jurisdiction. (Osterhoudt v. Rigney, supra.) But as it does not appear from the complaint that this was done, we cannot assume upon the demurrer that the board of supervisors had jurisdiction to audit these bills. If any issue can be made upon this subject it is an issue of fact, to be presented by the answer. ¥e must assume, therefore, that the subsequent audit and allowance by the board of supervisors of the same claims and accounts previously passed upon by the board of town auditors was void.

It was proper for the plaintiff to bring his action against such parties, as it was needful to hear or to restrain in order to prevent the waste and injury about to be effected by the payment of the illegal appropriations ordered by the board of supervisors. But the board of supervisors had completed their action in the premises) and neither threatened to do nor could do anything further. No preventative relief can be had against them. They had no interest in the subject-matter of the action, Chapter 673, Laws of 1887, provides that where “the waste or injury complained of consists in any board or officer, * * * by collusion or otherwise, auditing, * * * or conniving at the contracting, audit, allowance or payment of any fraudulent, illegal, unjust or inequitable claims * * * the court may * * * adjudge and declare the colluding or defaulting official personally responsible therefor.”

This complaint does not allege any collusion or connivance on the part of the board of supervisors, and hence their good faith must be assumed, and although restitution is asked, the allegations of the complaint do not make a case requiring it.

The separate demurrer of the other defendants was properly overruled. The Code authorizes a demurrer for a defect of defendants, not for an excess. (§ 488; Fish v. Hose, 59 How., 238.) The fact that no case is stated against the board of supervisors does not avail the other defendants, provided there is a case stated against them.

It is urged that there is no joint case stated against the defendants in whose favor the audits were made; that each one is only interested in his own, and not in his co-defendant’s case. ' But this is an equity action in which each claimant is interested in the single resolution of the board of supervisors in which all the audits are embraced and the audit of the board of town auditors enlarged.

The plaintiff seeks to restrain the payment of the whole amount of the excessive audit, and, therefore, must make each .person claiming a part thereof a party. It would be oppressive* to the supervisor and collector to be sued in many actions, when the whole controversy can be determined in one action against them. Itis not perceived that any claimant can be embarrassed by the case of his co-defendant. The joinder of all the claimants seems to be authorized by sections 447, 452 of the Code, and sanctioned by authority. (Osterhoudt v. Board of Supervisors, 98 N. Y., 239; Latham v. Richards, 15 Hun, 129; Mahler v. Schmidt, 43 id. 512; Weeks v. Cornwall, 39 id., 643.)

The interlocutory judgment is reversed as to the board of supervisors, with costs, and their demurrer allowed with costs; it is affirmed as to the other defendants, with costs, with the usual leave to all parties to amend on payment of costs.

Learned, P. J., and Putnam, J., concurred.

Interlocutory judgment reversed as to board of supervisors, and judgment on demurrer for them rendered, with costs. As to other defendants judgment interlocutory affirmed, with costs, with usual leave to withdraw demurrer and answer on payment of costs.


source: Caselaw Access Project

author: LaNDON, J. :

license: Public Domain

text:
    WILLIAM B. LE ROY and Others, Appellants, v. ANNE BROWNE and MARY J. LEVY, Respondents.

      Costs — in an action to abate a nuisance and for damages — taxation of costs without an order of the court — appeal from the judgment not a bar to a motion for a retaxation of the costs.

    In an. action brought for the abatement of a nuisance and the recovery of damages, the plaintiffs were nonsuited ; no award of costs was asked by the defendants and none was made, but judgment was entered by the defendants for costs without any notice to the plaintiffs; a notice of retaxation having been given, both parties appeared before the clerk, who, after consideration and on April eleventh, taxed the costs for defendants as proposed. On April thirteenth the plaintiffs, without knowing that the clerk had adjusted the costs, served on the defendants’ attorneys a notice of appeal from the judgment.
    Upon an appeal from an order denying a motion to readjust the taxation of costs by disallowing the same:

      Held, that the general rule, that a party taking an action which implies the regularity of some previous action of the opposite party, waives his objection to its irregularity, was intended to promote fair practice and should be fairly applied, and did not defeat the plaintiffs’ motion in this case.
    .That the plaintiffs’ motion was the proper mode'of appeal from the adjudication of the clerk, and that the appeal from the judgment and from the clerk’s adjudication were not inconsistent with each other, as both were steps taken to protect the plaintiffs' rights.
    Appeal by the plaintiffs from an order made at a Special Term held in Albany county, which was entered in the office of the clerk of Albany county on the 12th day of September, 1889, denying plaintiffs’ motion for a readjustment of costs herein, by striking out the same from the judgment in the action, upon the ground that the defendants were not entitled to costs in the absence of an order of the court.

      J. F. Cremford, for the appellants.

      Doyle c& Fitts, for the respondents.
   LaNDON, J. :

The complaint charged the defendants with maintaining a nuisance, and demanded judgment, that the same be abated and for damages. TJpon the trial the plaintiff’s were nonsuited, but no award of costs was asked by the defendants, and none was made. Costs are not allowed as “ of course,” but only upon the award of the court in such an action, and the defendants were irregular in entering them in their judgment. The judgment was entered for the defendants, with $138.93 costs, March 16, 1889, without notice to plaintiffs. Notice of retaxation was thereupon given and both parties appeared before the clerk March 23, 1889, the plaintiffs opposing the taxation upon the ground that costs had not been awarded the defendants-The matter was adjourned until April 2, 1889. The clerk took the matter under advisement, and on April 11, 1889, taxed the costs for defendants as proposed. April 13, 1889, the plaintiffs, without knowing that the clerk had adjusted the costs, served upon defendants’ attorneys a notice of appeal from the judgment as entered March 15, 1889, which notice recited the judgment to be for non-suit and for $138.93 costs. The general rule is that when a party takes such action in a case as implies the regularity of some previous action of the opposite party, he waives his objection to its irregularity.

The rule is intended to promote fair practice, and should be fairly applied. We do not think it ought to defeat the plaintiff’s motion in this case. At the first opportunity to object to the defendants’ claim for costs the objection was made, and was supposed by the plaintiff’s attorney to be still held under advisement by the clerk, when in order to be timely with Ms appeal from the judgment of nonsuit he served notice of appeal from it. He should not be held to have waived his objection when his action from the outset is consistent with his persistence in it. The plaintiffs’ motion was the proper appeal from the adjudication of the clerk. The appeal from the judgment and from the clerk’s adjudication were not inconsistent, both were steps to protect the plaintiffs’ rights. (Kerr v. Dildine, 15 N. Y. St. Rep., 616; Peart v. Peart, 15 id., 476.) We think the case plainly distinguishable from Guckenheimer v. Angevine (16 Hun, 453), and Pfaudler Company v. Sargent (43 Hun, 154).

We reverse the order, with costs, and grant the motion without costs, and without prejudice to such motion fór costs as the defendants may be advised to make.

LeaeNed, P. J., and Fish, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and order striking out costs granted, without costs, and without prejudice to defendants to apply to the court for costs as they may be advised.


author: Putnam, J.: LaNdoN, J.: LbauNbd, P. J.

text:
    PETER LAWYER, Respondent, v. PETER G. FRITCHER, Appellant.

      Abduction and seduction — consent of the father obtained by false representations, no defense — evidence as to loss of service — inferences the jury may dram

    In an action brought to recover for the loss of services on account of the alleged abduction and seduction of the plaintiff’s daughter Edith, it appeared that the defendant, who on May 17, 1886, took Edith from her father’s house, had, at that time, a wife living, and that he could not marry; that when he took Edith away he said: “lam just as clear from my wife as though I never had married her, ” and that the plaintiff, believing this statement, was thereby induced to sign a written consent to the marriage of his daughter with the defendant.
    It was proved that- they occupied the same bed-room and the same bed for two nights, and that on May twentieth Edith died by poison administered by herself. When the defendant brought Edith to his house, her sister, Julia Lawyer, told her, after they had occupied the same bed-room one night, that the defendant could not get married because he did not have a bill from his wife.
    Julia Lawyer, testified that Edith stated: “ I have taken poison, Julia,” and said, “ because I didn’t want to live; I don’t want to see anybody.”

      Held, that as the jury had found that the consent of the plaintiff to me defendant’s taking away his daughter, under a promise of marriage, was given in the belief that defendant had a legal right to marry, and that such consent was obtained by fraud, it was not a defense to this action.
    That the fact that when the daughter was ill and died she was not at her father’s house, and in his actual service, did not prevent a recovery.
    That while in such an action it is necessary to show some actual damage resulting from the seduction, the loss of service is often merely nominal; that the slightest proof of damage is sufficient.

      Lipe v. Msenlerd (32 N. Y., 236, 237); Badgley v. Becker (44 Barb., 577) ; Bamon v. Moore (5 Lans., 459) followed.
    It appeared that Edith was a bright, cheerful, good-tempered child.

      Held, that the jury might have inferred that she was well when she left her home, and, from what she said and from the circumstances shown, that when'she took the drug she did so under a feeling of shame and mortification, arid might find that she was seduced and ruined; that when she took the poison she was mentally ill, and that such illness was caused by the seduction, and constituted an injury to the father for which damages were recoverable. (Learned, P. J., dissenting.)
    Cases upon this question collated and considered by Putnam, J.
    Appeal from a judgment entered, upon the verdict of a jury rendered at the Scbobarie Circuit, in tbe office of the clerk of Schoharie county on the 17th day of January, 1889, and, also, from an order made by the justice presiding at the trial denying a motion for a new trial, made upon the minutes of the court.

      A. B. Goons, for the appellant.

      Albert G. Baker and William C. Lamont, for the respondent.
   Putnam, J.:

This action is brought by plaintiff to recover for loss of services on account of the alleged abduction and seduction of his daughter, Edith, in May, 1886. Defendant had at the time a wife living and could not marry. When he took Edith away defendant said : I *am just as clear from my wife as though T never had married her.” Plaintiff believed the statement and was induced thereby to sign a written consent to the marriage of his daughter with the defendant. Defendant took Edith from her father’s house on May 17, 1886, under the pretense that he would marry her, but as he was unable to do so no marriage was attempted between them. They were proved to have occupied the same bed-room and the same bed for two nights. On the twentieth she died by poison, administered by herself. The defendant called out on the examination of Julia Lawyer the fact that Edith stated that she had taken poison; that she said, “ I have took poison, Julia.” “ Why, Edie, what did you do that for ? ” says I; she said, “ Because I didn’t want to live; I don’t want to see anybody.” It appeared that when defendant brought Edith home and said she was his little wife, and after they had occupied the same bed and bed-room one night, Julia Lawyer told Edith that Eritcher could not get married because he did not have a bill from his wife. There is no doubt that the relation of master and servant existed between plaintiff and his daughter Edith at the time in question. She was seventeen years of -age, living with him, and be was entitled to her services.

The jury have found, on competent evidence, that the consent of plaintiff to the defendant’s taking away his daughter on a promise of marriage was given in the belief that defendant had a legal right to marry, and that such consent was obtained of plaintiff by fraud. It is held in. Regina v. Hopkins (Carr & M., 254), cited and approved in People v. De Leon (109 N. Y., 229), that a consent obtained of the parent by fraud is no defense to an indictment for abduction, nor is it in an action for seduction by the parent. The fact that when the daughter was ill and died she was not at her father’s house and in his actual service, but at defendant’s, does not prevent a recovery. (Furman v. Van Sise, 56 N. Y., 435; Certwell v. Hoyt, 6 Hun, 535.) The proof is sufficient that the defendant had carnal intercourse with the daughter of plaintiff; they occupied the same bed and bed-room for at least two nights; this evidence was sufficient to justify a verdict; and it is well settled that the jury were not bound to believe the evidence of defendant in the matter.

Hence plaintiff showed the relation of master and servant between himself and his daughter; that he was entitled to her services, and that she was seduced by defendant without his consent. The most serious question in the case is whether there was sufficient evidence of damage to submit to the jury, assuming that the plaintiff is not entitled to recover on account of the death of his daughter, as held by the trial judge.

In such actions it is necessary to show some actual damage resulting from the seduction. But the loss of service is often merely nominal, though the damages recovered are very large. The slightest proof of damage is sufficient. (See Lipe v. Eisenlerd, 32 N. Y., 236, 237; Badgley v. Decker, 44 Barb., 577; Damon v. Moore, 5 Lans., 459.) Therefore, showing that a slight illness was caused is sufficient. In Knight v. Wilcox (18 Barb., 212), it was held not necessary to show pregnancy and the birth of a child; that illness of the daughter was sufficient. The judgment was reversed by the Court of Appeals upon the ground only that the illness of the daughter in that case was not the direct and necessary result of the seduction. (See S. C., 14 N. Y., 413.) In Manvell v. Thomson (2 Car. & P., 303), the damage resulting from a seduction was a mental illness, threatening the overthrow of the physical system. The authority of the case was questioned by Weight, J., delivering the opinion of the Court of Appeals in (14 N. Y., 417), but the case was afterwards cited with approval in White v. Nellis (31 N. Y., 408), and Lipe v. Eisenlerd (32 id., 234). (See, also, Gray v. Durland, 51 N. Y., 429.)

In White v. Nellis (31 N. Y., 405), it was held that plaintiff could recover in such an action whenever the wrongful act, by immediate and direct consequence, deprived the master of his servant, or injuriously affected his rights to such services, citing the case of Manvell v. Thomson (supra).

Is this such a case ? As stated, where the relation of master and servant exists and the seduction is shown, proof of an actual loss is rather a legal fiction than a reality; the slightest proof is sufficient.

In this case, as the jury have found on competent evidence, the defendant, a man of sixty years, by gross fraud obtained plaintiff’s consent to take away his child, seventeen years old, and seduced and debauched her, well knowing that he was unable to marry her. It is to be inferred that she was well when she left home. She was a bright, cheerful, good-tempered child. She thus left home on the seventeenth of May. When she-was brought to defendant’s house she was informed that he could not marry her as he had no divorce from his wife. The fact was drawn out by defendant that she took poison, and stated that “ she didn’t want to live; did not wish to see anybody.” She died on the twentieth, four days after she left home. Is there any evidence in the case from which the jury could legitimately conclude that the child, between the seventeenth and the time she took the poison which caused her death, was ill? If ill in any way, however slight, her father, who was entitled to her services, was damaged. The jury might properly infer, from what she said and the circumstances shown, that when she took the drug she did so under a feeling of shame and mortification at finding that she was seduced and ruined, which feeling was the direct and natural result of the seduction shown. When she took the poison the jury were authorized to find that she was mentally ill, and that such illness was caused by the seduction.

In Manvell v. Thomson (2 C. & P., 303), a cousin of the girl proved that when she returned to her uncle’s house, after she had been seduced and abandoned, she was in a state of very great agitation and continued so for some time; that she received medical attendance, and was obliged to be watched lest she should do herself some injury. This was taken as evidence raising a presumption of loss of service by the uncle, and he had a verdict of £400. This case, having been cited and approved in several cases in the Court of Appeals, may be deemed an authority. It was projDerly decided. A person when in a state of great and continued agitation, and who has to be watched for fear she will harm herself, is not only mentally but physically ill. On the authority of that case we think the judge correctly submitted to the jury the question whether the plaintiff sustained damages by the seduction proved in this case. There was evidence to justify the finding that the child, as a result of her seduction, had taken poison; that she was thrown into that state of semi-insanity that induced her to take her own life. Such evidence proved that she was mentally and physically ill, and was such slight evidence of damage to plaintiff that the judge could properly submit the case to the jury. If, in Manvell v. Thomson, the fact that the niece was thrown into a state of agitation, so that she had to be watched, raised a presumption of loss of service by the uncle, here, where the act of the defendant threw the daughter into such a state of agitation and mental distress that she actually did take her own life, the presumption of loss of service is equally strong. She should have been watched. Her condition was such that she required care and attendance, and although while in this condition she was not in her father’s house, he is just as much presumed to have suffered damage as though she had been at his home.

It was no error to show the circumstances, including the conversation between the parties, occurring at the time and preceding the time that defendant took away the child, although the conversation called out showed a promise of marriage. The defendant had set up that plaintiff consented to whatever was done. One of the issues in the case was whether or not Edith was taken away with her father’s consent. Plaintiff could properly prove all the facts and circumstances to prove that his consent was obtained by fraud. In this case whatever took place between the parties and what was said was necessarily shown on the question whether the girl was seduced or not. We do.not think that the authorities cited by the defendant apply to such a case as this.

The charge of the learned judge seems to have been favorable to the defendant, and we do not discover any errors either in his charge or in his rulings upon the trial.

The judgment should be affirmed, with costs.

LaNdoN, J.:

Seduction accomplished implies consent. This consent is at common law a bar to an action against her seducer by the female seduced. As no physical violence was done the father, the common law could afford him no remedy except by resort to the fiction that his daughter is his servant, and, therefore, owes him service; that if she is seduced, and thus rendered incapable of rendering service, he loses the service she owed him, and he, therefore, may recover against the seducer who causes such loss of service. This artifice is properly termed a legal fiction, the real ground of recovery being for damages for the outrage perpetrated. In this case all the requirements of the fiction are made out, except, possibly, the inability to render service consequent upon the seduction. Why is proof of this consequent inability required ? Simply to. complete the logical consistency of the fiction. Justice does not require it. Justice examines to ascertain whether the alleged outrage is really such, and of what degree of aggravation. The outrage proven, a scintilla of evidence of the consequent inability to render service will suffice, and ought to suffice. Liberal presumptions may be indulged, if the justice of the case requires it, to establish this member of a series of fictional requirements. Here the seduction was proved, and the daughter’s subsequent suicide. The jury could infer that before she took the poison there were some* moments — a single one would be enough —in which she was not so capable of rendering service as she would have been if her seduction had not been effected.

I concur with my brother PutNAm.

LbauNbd, P. J.

(dissenting):

The defendant, a married man over sixty years of age, took plaintiffs daughter Edith, about seventeen years old, from her father’s house on Monday, May seventeenth. He did this with the consent of the parents. But the verdict of the jury establishes that he obtained this consent by fraud. That night he stayed with her at a hotel and occupied the same bed with her, saying to the landlady that Edith was. his wife. The next day he arrived with her at his own house. They occupied the same bed and he made a similar statement, viz., that he had been manned to her the day before. When there Edith’s sister (who had been living at defendant’s) told Edith that defendant could not get married, he had not been divorced.

The next day, after dinner, Edith became sick. She had taken poison. The day following, Thursday, the twentieth, she died from the effects of the poison. Before death she told her sister that she took poison because she did not want to live and that she did not want to see anybody. There was evidence that Edith had recovered from her usual monthly courses a week before she went away with defendant, and that before her death her underclothes were spotted with blood, which a physician supposed to be the.menstrual flow. The important point in this case is whether on these facts the court could properly submit to the jury the question whether the plaintiff sustained damage, other than that of death, for loss of service by reason of the seduction.

It will be seen that there is no evidence of seduction before Monday night; no evidence of Edith’s condition from Monday night till Wednesday noon, when she took the poison, and, of course, no evidence of pregnancy. The court charged the jury that her death was not a direct result of the sexual intercourse. Hence the question must be whether the jury were justified in finding that between Monday night and Wednesday noon Edith’s condition was such, owing to the seduction, that she was unable to render the service which her father was entitled to demand from her.

In Hewitt v. Prime (21 Wend., 79) this court charged thg.t “no loss, expense or damage prior to the suit need be shown; it was enough to pi’ove the seduction.” This was held not to be error. And the court said that “ the loss sustained by the parent from the corruption of her (the daughter’s) niind and the defilement of her person by the guilty seducer is considered ground for damages consistent even with the first principles of the action.”- But such was not the charge of the court in the present case, since the court rested the right of recovery on actual damages. Therefore, we must consider whether there was such actual damage. If the court had charged that no damage need be shown, the defendant might have excepted and brought up the point for review. And we must notice that in the case just cited the seduction was, in July; the daughter became pregnant; the action was commenced in September and a child was born in April before the trial. So that there was evidence from which the jury could have found inability to work. And the trial court probably intended that no other proof was needed The cases of Clark v. Fitch (2 Wend., 459) and Martin v. Payne (9 Johns., 387), cited in the opinion, do not sustain the point that no proof of damage need be given. (See, especially, the remarks of Justice SpeNcee in the former case.)

In Ingerson v. Miller (47 Barb., 47) the daughter liaa oeen pregnant over three months and consulted a physician for relief. lie refused. She fainted and died. The defendant asked the court to-charge that there was no proof of loss of service. The trial court refused, and this was held correct. The court said, in substance, that if the daughter was pregnant she must have been disqualified to render such service as she would owe. But the doctrine was still asserted that mere seduction without pregnancy, consequent ill health; or injury to the servant would not give the right of action. It is so stated in Whitney v. Elmer (60 Barb., 269.) In the case of Badgley v. Decker (44 Barb., 578) the court say the rule is still adhered to with us that loss of service is the legal gravamen of the action. There the daughter became pregnant and then lived with plaintiff till the birth of the child. The doctrine is also stated in the same way in Bartley v. Richtmyer (4 N. Y., 38); Lipe v. Eisenlerd (32 id., 236); while the court say that damages are given “ to redress a moral outrage and punish libertinism,” they reaffirm the doctrine that there must be a loss of service or the action will fail.

So in the brief memorandum in Lawrence v. Spence (99 N. Y., 669) it is stated, in affirming the recovery, that the result of the seduction was a loss to the father of his daughter’s services. We find no later authority than these. It is true that it has been said that the service owing may be a fiction, as, for instance, in case of a wealthy father whose daughter renders no actual service. Courts have held that the relation of master and servant in such cases was enough, although no real service was rendered. While this may bo sufficient to show that service was owing, there must be proof that there has been a loss to the plaintiff.

Now, since the learned justice took from the jury every considera, tion of the death of Edith, as being too remote, we are limited, in considering the loss of service, to the time prior to her taking poison. Her sister was on the , stand and could have testified to Edith’s physical condition. But no such testimony was given. The sister herself also took poison about the same time and probably from the same package, but recovered from the effects. And there is no reason to suppose that her act was occasioned by any seduction or that she had been incapacitated from working. If it should be said that the taking of Edith from her home caused damage to the father, the answer is that this action is for the seduction. It is only for seduction that punitive damages may be given. Actual damages only could be recovered for the mere carrying away. The same rule seems to prevail in other States, as to the necessity of showing 'a loss of service. In Abrahams v. Kidney (104 Mass., 222), it was said that if the proximate effect of the seduction was mental distress, impairing health and ability to labor, this was sufficient; but if the loss of health was caused by mental suffering produced by shame resulting from exposure, it was not sufficient. The seduction was not the proximate cause. Again, the fact of service must be proved. (Sutton v. Huffman, 3 Vroom [32 N. J. L.], 58; Humble v. Shoemaker, 70 Iowa, 223.)

It would seem that by statute in Yirgina, Michigan and Kentucky it is not necesary to aver or prove loss of service. And the enactment of such statutes shows that without them it would be necessary to prove a loss of service. We find no casé in which not only the service but the loss was fictitious also. In every case cited there has been evidence from which might justly be inferred inability, partial at least, to render service. But in this case the jury must have inferred from the fact of suicide that, during the day and a half previous, Edith was distressed in mind, and that such distress was occasioned by the seduction, and then must have inferred that such distress rendered her incapable of work. Of all this we see no evidence.

We may test this question in another way. Suppose that in this action no exemplary or punitive damages could be granted. Could there possibly have been a recovery of any amount whatever for actual damages? "Would not a court have said unhesitatingly that on this evidence no verdict for any amount of actual damages could stand? But there must be actual before there can be punitive damages.

The defendant denies the seduction. But if the verdict of the jury is correct, he committed a grievous wrong, more inexcusable on account of his age, and his evident influence over the plaintiff and his family. The result has been very lamentable. "We have no sympathy for him if he is guilty. "We may even wish that the legislature would say that “a father whose daughter has been seduced shall maintain am action for the injury done to his wounded honor and parental feelings.” But such is not the law. (Clark v. Fitch ut supra.)

It is not for us to legislate or to violate legal principles under the stress of a case like the present. We must adhere to rules, whatever our sympathies may be. Nothing leads to more incorrect decisions than an effort to do what is thought to be just in a special case by a little evasion of well settled law. Hence comes the worst of evils, uncertainty in the law and judgment “ according to the size of -the chancellor’s foot.”

For these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.

Judgment and order affirmed, with costs,


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL GREGG and LAMBERT A. CADDICK, Appellants, v. THE BOARD OF CANVASSERS OF RENSSELAER COUNTY, Respondents.

      Election — mandamus to compel a hom'd of county canvassers not to include in its canvass the vote of a cei'tain district —1880, chap. 460.
    On an application for a writ of mandamus to compel the defendant, the Board of' Canvassers of Rensselaer county, to omit from its canvass the result of the election, held on November fifth, in the sixth district of the city of Troy, the affidavits submitted upon the application tended to show that the senatorial box was feloniously abstracted before the votes deposited therein were canvassed, and that another box containing senatorial ballots was substituted in its place, and that the district canvassers actually canvassed the ballots thus feloniouslysubstituted.
    The returns for the election district were duly made and signed by the inspectors, and were filed in the proper office, and were before the board of county canvassers. No other returns existed; and it did not appear to be possible to make any other under any authority given by the statute'.
    Upon an appeal from an order denying the relator’s application:

      Held, that the presumption was that the returns were true:
    That if there were two returns, one of the ballots in the false box and the other of the ballots in the true box, and the county canvassers had determined to canvass the false instead of the true, the court might correct such an error. People ex rel. Russell v. Canvassers of Albany County (20 Abb. N. C., 23) followed. The difference between giving effect to the true vote of a district and suppressing the vote altogether, considered.
    That chapter 460 of the Laws of 1880, authorizing the court to correct by mandamus the determination of the board of county canvassers, did not confer upon it the authority to institute and conduct such an investigation as ought to precede and justify an order which would nullify the return of the vote of the district.
    Appeal by the relators from an order made at a Special Term held in Rensselaer county, denying a motion for a writ of mcmdamios to compel- tbe defendant to omit from its canvass of the result of the election held on November 5, 1889, the statement of votes that appeared upon the paper filed in the Rensselaer county clerk’s office that purports to be a “ return ” or statement of votes cast at the said election in the sixth ward election district of the city of Troy.
    The order which was entered in the Rensselaer county clerk’s office November 21,1889, recited that the motion was denied on the sole ground that the court had not the power to grant the relief asked for.

      G. B. Wellmgton, for the appellants.

      B. A. Parmenter, for the respondents.
   Landon, J.:

Chapter 460 of the Laws of 1880 extends the authority of the Supreme Court by ma/nda/rrms to the correction of errors in the determination of boards of county canvassers. The single question presented to us under this act is whether the county canvassers have made any error in their determination respecting the returns from the election district composed of the sixth ward of the city of Troy. The returns for the election district were duly made and signed by the inspectors and were filed in the proper oífice and are now before the board of county canvassers. The presumption is that they are true. Some informalities are alleged, but these do not call for the suppression of the returns. No other returns exist, and it does not appear to be possible to make any other under any authority given by statute.

The real difficulty is not in the determination of the board of county canvassers, but in an alleged .criminal imposition practiced upon the board of inspectors of the election district. The affidavits submitted tend to show that the senatorial box was feloniously abstracted before the votes deposited therein were canvassed, and that another box containing senatorial ballots was substituted in its place, and that the district canvassers actually canvassed the ballots thus feloniously substituted. If there were two returns, one of the false box and one of the true, and the county canvassers had determined to canvass the false instead of the true, the court might correct such an error. (People ex rel. Russell v. Canvassers of Albany County, 20 Abb. N. C., 23.) The difference between giving effect to the true vote of the district and suppressing it altogether is great. To suppress the vote may or may not correct the alleged error, even if the crime alleged to have been perpetrated upon the electors of the district can be called an error of the county canvassers, or the cause of one. It is probable that it would be the substitution of one error for another.

It is obvious that the act of 1880, authorizing the court to correct the errors in the determination of the board of county canvassers, does not confer upon it the authority to institute and conduct the investigation which it seems to us ought to precede and justify an order which will nullify the return of the vote of the district. The proper investigation into the alleged crime may be made by other authority, and if the crime be found, the true vote may be ascertained in a case involving the election of a senator.

The order appealed from must be affirmed.

Learned, P. J., and Fish, J., concurred.

Order denying motion for mandamus affirmed.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendant.

      Taxon corporations — imposed upon dividends of six per cent, and upon the capital stock where the dividends a/re under six per cent —power of the legislature to do so.

    In a case submitted upon an agreed statement of facts the question to be determined was the rate of per cent of tax to which, under section 3 of chapter 543 of 1880, as amended by chapter 361 of 1881, the defendant was liable. Section 3 provides that if a corporation, during- any year ending November first, makes dividends, amounting to six per cent or more on the par value of its capital, it is to pay one-quarter mill upon the capital stock for each one per cent of dividends so made; and that if no dividend or dividends less than six per cent are paid, then the tax shall be at the rate of one and one-half mills on.each dollar of the value of the stock.
    During the year ending November 1, 1888, the dividends made by the defendant were, in the aggregate, five and three-fourths per cent on the par value of the capital stock, and the actual value of the stock, as determined under the provisions of the said act, was 110.18 per cent upon which the tax provided by the law was imposed.
    The defendant contended that that tax was unjust and not according to the meaning of the legislature, and claimed that it should pay only the same tax which it would have paid had it made dividends amounting to six per cent.

      Held, that there was.no unequal or unjust taxation imposed upon the-defendant.
    That the amount oí dividends was not made the sole evidence oí the productiveness of the road; that the actual value of the stock was some evidence on that point, and that if the legislature in some cases determined the rate of taxes by the dividends, and in others by the actual value of the stock, there was no such injustice as required the court to modify by construction the clear language of the statute.
    Controversy submitted, upon an agreed statement of facts, ia pursuance of the provisions contained in sections 1219-1281 of the Code of Civil Procedure.

      William A. Poste, deputy attorney-general, for the plaintiff.

      David Willoox, for the defendant. •
   Learned, P. J.:

This is a case agreed upon and submitted. The question to be determined is the proper construction of section 3, chapter 512, Laws of 1880^ as amended by chapter 361, Laws of 1881. And the point in dispute is the rate of taxation to which, under that law, as so amended, the defendant is liable.

If a corporation during any year ending November first, makes dividends amounting to six per cent or more on the par of its capital, then it is to pay one-quarter mill upon the capital stock for each one per centum of dividends so made. If there were no dividends or if there were dividends less than six per cent, then the tax is at the rate of one and one-half mills on each' dollar of the value of the stock, The mode of ascertaining that value is provided for in the first section. It is not necessary to state it, since no dispute arises as to value. By chapter 501, Laws of 1885, the tax is to be only upon the amount of capital stock employed in this state. No dispute arises as to what that amount is in this case. During the year ending November 1, 1888, the dividends of defendant in the aggregate were five and three-quarters per cent on the par value of the capital stock. It was, therefore, not to be taxed under the first of the aforesaid provisions, but was to be taxed under the second. The actual value of the stock, however, as established under the provisions of this act, was 110.16 per cent.

Now, it will be seen that a tax of one and one-half mills on each dollar of the actual value of the stock, when that stock is above par, is greater than a tax of one-quarter mill on the capital stock for each one per centum of dividends, when the dividends are six per cent in the aggregate; that is to say, if the defendant had made during the year, in the aggregate, six per cent dividend it would have paid a certain sum. But as it has made only five and three-quarters peícent, while each share of its stock is worth $110.16, it is required to pay a larger sum. This the defendant says is unjust and not according to the meaning of the legislature, however consonant it may be with the words. The defendant, therefore, claims that it should pay only the same tax which it would have paid had it made dividends amounting to six per cent. The defendant claims then to ignore the second provision, above stated, of the act in all cases where the actual value of the stock shall be found to be above par, or to add to it a provision that if the actual value of the stock shall be found to be above par, then the corporation shall pay such tax as it would have paid if it had made dividends amounting in the aggregate to six per cent during the year.

The very able argument for making this judicial amendment to the distinct and clear language of the statute is based upon the position that it must have been the intent of the legislature that corporations paying less than six per cent dividends for the year should not be taxed at a greater rate than those which paid six per cent and more. Any one who knows how statutes are passed must be aware that the intention of the legislature would be extremely difficult to ascertain; if, indeed, in the minds of many of the legislators any such thing existed at all. We have really nothing to guide us but the words of the statute, in connection with existing circumstances. The defendant urges the fact that in 1880, when this system of taxation was established, the rate of interest had just been reduced from seven to six per cent, and it claims that corporations paying six per cent stood at par and that those paying less stood below par. Hence it argues that the provision for taxing on the actual value could have been intended to apply only to cases where such actual value was below par. But whatever force this might have had (assuming its truth), all is lost when we observe that this statute of 1880 has been amended in some particulars in 1881, 1882, and in 1885 ; and at the same time the provisions now under consideration have remained unchanged. During that time the actual rate of interest had so decreased that in 1885, a five per cent security would sell for more than par and a six per cent for still more. Yet the legislature made no change in the provisions for determining the tax ; while it was a well known fact that a good six per cent security was worth above par.

The amount of the dividends made by a corporation in any year is not the sole evidence of the productiveness of the business. Sometimes a corporation expends a part of its profits in making new and additional improvements which increase the value of its property, and thus its price in the market. Hence the statute may have been wisely contrived so that if a corporation reduced its dividends below six per cent and used its profits to increase the value of its property, it should still pay a tax on its productiveness, measured, not solely by its dividends, but somewhat by its increased value. Sometimes, too, a corporation may make no dividends in order to increase its surplus funds. This has notably been done by banks, but might be done by corporations subject to the tax under consideration. Doing this, a corporation would increase the value of its capital stock. For instance, a certain corporation in existence for fourteen years has never made any dividends; and its stock -is worth over one thousand per cent. The assumption, then, by the defendant, that the rate of dividend is the sole evidence of the productiveness of a corporation is not tenable.

The question here involved was not in any way under consideration in People v. Home Insurance Company (92 N. Y., 328). The passage cited by the defendant from the opinion, at page 347, was-quite true in regard to the case then before the court. In that case the prosperity was shown by the profits voluntarily distributed. .But the court had previously said: “ There is no valid reason why the value of the capital stock may not be used as an element for determining the amount of tax; ” and, further, that the plan adopted by this law is fair and equitable. In speaking also of the provision for determining the tax by value, and that for determining it by dividends, the court said: “ There is no inconsistency in these modes of estimating; ” and it was further remarked: “ Absolute equality in laying the burdens of taxation, as shown by experience, is impossible of attainment.”

The defendant cites People ex rel. Westchester Fire Insurance Company v. Davenport (91 N. Y., 574), to illustrate and establish the power of courts to limit the operation of statutes when the literal sense would lead to absurdity or injustice. Now, in that case, the language of the act of 1880, in its literal reading, exempted the capital stock and personal property of the corporar tion from assessment or taxation except as is provided in that act. It was held that this did not exempt such capital and property from taxation for municipal purposes. The court considered that the title and whole spirit of the act referred to taxation for State purposes, and that such must be the application of this exemption. The court was somewhat influenced by the principle that exemptions from taxation were not favored, and must be clearly shown. But neither that decision, nor the rule which was there applied, affords any support to the defendant’s claim. Nothing in the title or in the sprit of the act is in conflict with the plain language of the provisions under discussion.

There is no unequal or unjust taxation imposed, when effect is given to the literal meaning of these provisions, as has been already shown. Indeed, the argument of the defendant intended to show the injustice of the claim of the people might be reversed. For instance, the defendant, since 'the year in question, has paid a seven per cent dividend. Its stock has gone up to 154. Now, it might be urged by the people that it was unjust that a corporation of which the stock was worth 154 should pay a tax on the basis of a seven per cent dividend'only. The people might say that, therefore, the clause of the act should be disregarded, which provides that corporations paying six per cent or more dividends, should be taxed at a certain rate calculated on their dividends and that the other clause should be applied, and the defendant should Fe taxed upon the actual value of its capital; that is, that the defendant should be taxed twenty-three and one-tenth cents on every share of its capital instead of seventeen and five-tenths cents, which would be the tax based on a seven per cent dividend. For the defendant proportionately pays a less rate of tax on the value of its property than does some corporation that pays no dividend, and the stock of which is below par.

We see no reason why the court might not seek to rectify the alleged injustice, on which defendant relies, by disregarding one provision of the section as well as by disregarding another. The defendant urges that all the court need do is to say that the second provision in the section is impliedly limited by a condition that the actual value shall never be considered to exceed par. We might as well say that the first provision is impliedly limited by a condition that if the dividend is less than six per cent on the actual value, the tax shall be computed on actual value. jWe might as properly assume to amend the law in one way as in another. It must be seen that there are no words in the rest of the statute with which the construction claimed by the people is inconsistent. The defendant’s argument is simply that when its property is worth more than par it ought not to be taxed on such value, if it does not make six per cent dividends. We think the argument is not sound. We think that the amount of dividends is not the sole evidence of the productiveness of the road, and that the actual value of the stock is some evidence on that point. And if the legislature, in some cases, determine the rate of tax by the dividend and in others by the actual value of the stock, we see no such injustice as requires us to modify, by construction the clear language of the statute. We have not thought it necessary to argue that the literal meaning is in favor of the people’s claim. That can hardly be disputed. .As it has rested with the defendant to show ground for changing that literal meaning by what is called construction, it has seemed to us enough to answer those grounds.

That a court is justified in making sense out of inconsistent language, and even of implying a meaning not apparent in the letter, is undoubted. But, after all, when the language is plain, and not inconsistent with other parts of the statute, and when it violates no principles of natural justice, its literal meaning should stand. And this is especially true of a statute which, in several years, has been under the consideration of the legislature, over which has been much litigation, the requirements of which have been contested by many corporations, and yet which has as to the provisions in question never been modified.

The people should have judgment for the amount claimed, with costs.

Landon and Putnam, JJ., concurred.

Judgment ordered for people on submitted case.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM B. GAGE, E. CLINTON CLARK and FRANK H. HAWTHORN v. DEYO LOHNAS, FRANCIS W. WELLS, GEORGE I. HUMPHREY, WILLIAM H. GARRISON, MICHAEL FINN, GEORGE W. AINSWORTH and BENJAMIN W. CLARK, Comprising the Board of Trustees of the Village of Saratoga Springs.

      Constitution, sec. 18, art. 3, not applicable to city streets- — construction of a reference, to part of itself, in a statute — delegation by a boat'd of trustees of authority to malee an assessment — certiorari, when quashed and the relators relegated to an action.

    In the proceedings taken under a writ of certiorari to review the action of the board of trustees of the village of Saratoga Springs, in widening a street of that village and in imposing an assessment upon the relators and other persons to defray the cost and expense thereof, it appeared that the street was originally about sixty-six feet wide, and that this width was, by the resolution of the board of trustees, increased to 100 feet by taking the increased width from the lots on the northerly side of the street, and that, by chapter 136 of 1887, the board of trustees was authorized to assess the expense upon such property as they should deem to be benefited, except the lots of which a portion was taken to make the widening, these being exempted. The relators who owned the property near, but not upon the street in question, were deemed by the trustees to be benefited and their property was included in the property assessed.
    It was urged that the act, or so much of it as authorized the streets of the village to be widened, pursuant to a resolution of the board of trustees, was unconstitutional because in conflict with section 18, article 3 of the State Constitution, which forbids the legislature to pass a private or local bill “ laying out, opening', altering or discontinuing roads, highways or alleys.”

      I-Ield, that this provision of the Constitution did not apply to city streets.

      Matter of Woolsey (95 N. Y., 135) followed.
    Chapter 136 of the Laws of 1887, under which this street was widened, consisted of two sections. The first section provided that there should be added to the charter of the village (chap. 220 of 1866, and the several acts amendatory thereof) “the following sections, to be known and numbered as sections 71, 72, 73, 74, 75, 76, 77 and 78.” Section 72 provides, in detail, for the assessment for the cost of constructing sewers, with ample provisions for the hearing of all persons to be affected by the assessment. Section 75 directs that the amount of the awards and fees of the commissioners, and other expenses of the appraisal, “shall be forthwith assessed by the board of trustees upon the property which they deem benefited thereby, other than the property, a portion of which shall have been taken therefor, in the manner provided in section two of this act.”
    Section two of the act of 1887, above cited, simply provides that “this act shall take effect immediately.”

      Held, that it was obvious that section 72, being the second section of the new sections added to the charter by section 1 of the act of 1887, was intended by the words “section two of this act,” and that the court should give effect to the obvious intention of the legislature when to do so would prevent the act from failing, and when by doing so no violence would be done to the language employed.
    It was objected that the property of the relators was not benefited by the improvement.

      Held, that this was a question for the trustees to determine, and that as the return affirmed that their property was benefited, and as no motion had been made to correct it or to supply any defects existing in it, the presumption was conclusive that it stated the whole truth in respect to the matters specified in and required by the writ.
    The board of trustees appointed a committee consisting of two trustees and the clerk of the board to prepare the assessment. The committee did prepare an assessment and submitted it to the board of trustees, which then made the assessment .and gave notice thereof and of the time and place to hear grievances. It was objected that in placing the clerk upon the committee to prepare the assessment, the board delegated to him a function which was incapable of delegation. Held, that while the board of trustees was no doubt aided by the report, it still remained for the trustees to exercise their judgment in making the assessment, and that as they had performed that duty they did not delegate it to the clerk.
    A motion was made to dismiss the writ as improvidently issued, and it appeared, by affidavit, that more than half of the assessments had been paid.

      Held, that as an action was given to the relators by chapter 68 of 1880, authorizing an action to be brought to vacate a tax or assessment, the public interest required that the relators should confine their litigation to the protection of their individual interests instead of extending it to the overthrow of a work of public utility, and that the writ of eerUorcm should be superseded and quashed.
    A common-law certiorari to review the action of the board of trustees of the village of Saratoga Springs in widening a street of the village, and imposing an assessment upon the relators and others to defray the cost and expense thereof, was allowed at a Special Term, held in Saratoga county on April 16, 1889.
    The street was one continuous street, though the several sections of it bore different names. It was about sixty-six feet wide, and this width was by the resolution of the board of trustees increased to 100 feet by taking the increased width from the lots on the northerly side, of the street. By the act authorizing the board of trustees to widen streets in the village, Laws 1881, chapter 136, the board was authorized to assess the expense upon such property as they shall deem to be benefited, except the lots of which a portion is taken to make the widening; these are exempted. The relators own property near, but not upon the street in question, and their property was deemed by the trustees to'be benefited, and was included in the property assessed. A motion was also made to dismiss the writ as improvidently issued.

      T. E. Hamilton, for the relators.

      E. T. Brackett, O. 8. Lester and John L. Henning, for the defendants.
   Landon, J.:

The imposition of local assessments for benefits is an exercise of the taxing power. Subject to constitutional limitations, the legislature may prescribe how this power shall be exercised. Unless there is some constitutional restraint the act in question is valid. (Laws 1887, chap. 136.) That is to say, the legislature could authorize the board of trustees of Saratoga Springs, by a resolution of the board without a petition of property owners,' to widen any of the streets of the village, and also to prescribe the extent and details of such widening. The legislature could direct that the expense thereof should be imposed upon the property to be benefited, other than the property some part of which should be taken for the widening ; and also could authorize the board of trustees to determine what property other than that exempted would be benefited, and to apportion the assessment upon such property. (Spencer v. Merchant, 100 N. Y., 585; Genet v. City of Brooklyn, 99 id., 296; Matter of Van Antwerp, 56 id., 261.)

It is urged that the act, or so much of it as authorizes a street of the village to be widened pursuant" to a resolution of the board of trustees, is unconstitutional, because in conflict with section 18, article 3 of the State Constitution which forbids the legislature to pass a private or local bill “ laying out, opening, altering or discontinuing roads, highways or alleys.” It was held in Matter of Woolsey (95 N. Y., 135) that this provision of the Constitution does not apply to city streets. The reasoning is based upon the fact that, pending the consideration of the provision, the commissioners who reported it added the words “ streets and alleys ” to roads and highways,” and the legislature in submitting the provision struck out the word streets.” That section 1 of article 8 of the Constitution provides for the formation of municipal corporations by special act, and that such acts may be altered or repealed, thus authorizing the legislature by special act to provide a street or highway system for municipal corporations different from the general highway system of the State, outside of such corporations. Saratoga Springs is a municipal cor- - poration created by special acts, and hence the legislature may by special act regúlate its highway or street system.

The objection that the act does not provide an opportunity to the persons to be affected by the assessment to be heard thereupon is based upon a clerical error in the act. Chapter 136 of the Laws of 1887, under which this street was widened, consists of two sections, but the first section provides that there shall be added to the charter of the village (chap. 220, Laws of 1866, and the several acts amendatory thereof) the following sections, to be known and numbered as sections 71, 72,73, 74, 75, 76, 77, and 78.” Then follow the sections as so numbered, the first being section 71 and the second 72, etc.

Section 72 provides in detail for the assessment for the cost of constructing sewers, with ample provisions for the hearing of all persons to be affected by the assessment. Section 73, embraced in section 1 of the same act provides for the widening of any street in the village by the board of trustees. Section 75 of ■ the same section and act provides as follows: “ In the case of real estate, and easements taken for the purpose of widening a street, the amount of the awards and the fees of the commissioners and other expenses of the appraisal shall be forthwith assessed by the board of trustees upon the property which they may deem benefited thereby, other than the property a portion of which shall have been taken therefor, in the manner provided in section two of this act.” Section 2 of the act simply provides that this act shall take effect immediately.” It is obvious that section 72, being the second section of the new sections added to the charter by section 1 of the act of 1887, is intended by the words section two of this act.” "We must give effect to the obvious intention of the legislature, when to do so will prevent the act from failing, and when no violence will be done to the language employed. Section two of this act ” means the second new section added by this act to the charter, namely “ section 72.” So understood, the trustees must assess the expense of widening a street in the manner provided in section 72. This the trustees did, and the parties affected by the assessment had, in pursuance of the terms of the section, their day in court ” before the assessment was confirmed.

It is objected that the property of the relators is not benefited by the improvement. This was a question for the trustees to determine. The return affirms that their property was benefited.

Section 2135, Code of Civil Procedure, provides that if the return is defective, the court may direct a further return. The return should, in addition to a transcript of the record or proceedings, state the whole truth in respect of the other matters specified in and required by the writ (§ 213é); and in the absence of any motion to correct or supply its defects, the presumption is conclusive that it does so. (People ex rel. Cummings v. Koch, 2 N. Y. St. Rep., 110; People ex rel. Cronk v. Weld, 6 id., 173.) The return is an answer to this objection.

The board of trustees appointed a committee consisting of two trustees and the clerk of the board to prepare an assessment. This committee did prepare a scheme or report of an assessment and submitted it to the board. The board then made the assessment and gave notice thereof, and of the time and place to hear grievances. It is objected that, in placing the clerk upon the committee to prepare the assessment, the board delegated to him a function which was incapable of delegation.'

It is probable that the clerk was placed upon the committee in order to do the necessary clerical work; but assuming that he participated in the deliberation of the committee, and influenced the result, the result was only a report in the form of a proposal or scheme. Nothing was passed upon or determined by it. The board of trustees were, no doubt, aided by it, but it remained for them to exercise their judgment and make the assessment, and they performed that duty; they did not delegate it to the clerk. "We conclude that the objections urged by the relators should be overruled upon the merits.

The defendants, however, urge that certíorari is not the proper remedy, and a motion is made to dismiss the writ upon grounds of public policy. It appears by affidavit that more than half of the assessments have been paid. A common-law writ of eertiorwri issues where the statute has not expressly taken it away, or provided some other method of review, in eases where a review is appropriate, where no other adequate remedy is available, and in the discretion of the court a remedy should be allowed. The court grants it, lest the error, perverseness or partiality of officers not accustomed to judicial functions may work an irremediable injury. If a party conceiving himself aggrieved has an adequate remedy as a right, he need not apply to the court for the favor of this.

Here a remedy by action is given the relators by chapter G8 of the Laws of 1880, being an act to authorize the sale of lands in the village of Saratoga Springs for unpaid taxes and special assessments. Section 8 provides that “ any person interested in property upon which a tax or assessment has been, or may be, assessed or levied may bring an action to vacate and set aside such tax or assessment, or any sale made by virtue thereof and to enjoin and restrain the sale of any real or personal property.” Of course, he may in his complaint set forth every fact constituting his cause of action, and, therefore, may there rely upon every ground urged here. The appropriateness of a resort to action is apparent. The majority of persons affected by the assessment in question do not complain. Public interests would seem to require that the relators confine their litigation to the protection of their individual interests instead of extending it to the overthrow of a work of public utility. (Matter of Flushing Avenue, 101 N. Y., 678.)

The writ of certiorari is superseded and quashed, with fifty dollars costs and disbursements against the relators.

Leaened, P. J., concurred; Putnam, J., not acting.

Certiorari superseded and quashed, with fifty dollars costs and disbursements against relators.


author: Putnam, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN O’NEIL, Appellant.

      Code of Civil Procedure, sections 1897 1898 require an indorsement on the summons in an action by the people for a penalty — when the construction of an act is determined by its title.

    Tlio first four sections of article 3, title 4, chapter 15 of the Code of Civil Procedure, by their terms, apply to actions by private persons. Sections 1897 and 1898 are general and apply to all actions, including an action brought by the People of the State to recover penalties under sections 3 and 3 of chapter 577 of 1888, and require that, in every action brought to recover a penalty or forfeiture, there shall be an indorsement on the summons.
    The title of an act is no part of it, although it may be used to aid in discovering the design of the legislature, but where the language of the statute is plain the construction will not be affected by the title of the act.

      Spoor v. Cornell (12 Civ. Pro. R., 319) followed; Townsend v. Hopkins (9 id., 258-261) overruled.
    Appeal by the defendant from an order made at a Special Term, held in Albany county, which was entered in the office of the clerk of the county of Columbia, on the 4th day of Hay, 1889, denying a motion made by the defendant to set aside a summons in an action for the recovery of a penalty, brought by the people under sections 2 and 3 of chapter 577 of 1888.

      James O. Matthews, for the appellant.

      A. B. Gardenier, for the respondent.
   Putnam, J.:

The action was brought by the People of the State under sections 2 and 3 of chapter 577,. Laws of 1888. A motion was made .to set aside the summons on the ground that it was not properly indorsed as required by section 1897 of the Civil Code, and denied at Special Term, and this is an appeal from the order denying such motion. It is not denied that if this is a case requiring an indorsement under said section of the Code, the indorsement made was not a compliance with the statute. Section 1897 is contained.in article 3, title 4, chapter 15 of the Civil Code, said article containing six sections, from 1893 to 1898, inclusive, and is entitled, “Action by a private person for a penalty or forfeiture.”

It is claimed by respondent that the title limited the operation of section 1897 to actions by private persons, and that it does not apply to this.action by the people, and that, in fact, no indorsement was necessary on the summons. The statute has been construed as claimed by respondent at Special Term. (See Townsend v. Hopkins, 9 Civ. Pro. R., 258, 261.) A contrary construction of the statute has been held by the General Term of the New York Common Pleas, in Mayor v. Eisler (2 Civ. Pro. R. [Browne], 125). (See, also, Mayor v. Wood, 25 N. Y. St. Rep., 907; Young v. Gregg, 9 Civ. Pro. R., 262; Spoor v. Cornell, 12 id., 319.) The first four sections of article 3, by their terms, apply to actions by private persons. Sections 1897 and 189S in terms are general and apply to all actions; and were it not for the title there could be no doubt that section 1897 was applicable to the summons in this case. It can hardly be doubted but that the last section, of the article (§ 1898) applies to all actions, whether brought by the people, a public officer, or a private person. The language is general, and the intent to apply to all actions for penalties, by whoever brought, is apparent.

In section 1897 the language is not limited to an action by a private person. The section says “ in an action! It would be no stronger if it said in emery action. The plain meaning is (unless otherwise'construed on account of the title) that in every action brought to recover a penalty or forfeiture there shall be an indorsement on the summons. The question is not free from doubt, but we incline to believe the construction given to the section by the General Term of the Court of Common Pleas of New York is correct.

The title of an act is no part of it, although it may be used to aid in discovering the design of the legislature. (Jones v. Sheldon, 50 N. Y., 477; Brick v. Gannar, 36 Hun, 52; In the Matter, etc., of Middletown, 82 N. Y., 196.) But when the language of a statute •is plain and the construction apparent the construction cannot be altered by the title. (Matter of Middletown, supra.) In section 1897 there seems to be no ambiguity. It contains a general direction that in an action for penalties there must be an indorsement on the summons. By its terms it applies to all actions. Unless limited by the title no question could be raised as to its construction. If limited by the title, the effect is by the title to change what otherwise would be the plain and unambiguous meaning of the section.

Again, section 1897 is a substitute for section 7, article 1, title 6, chapter 8, part 3, Bevised Statutes (2 B. S., 481), which required the indorsement in all actions; and although the phraseology of the present section differs somewhat from the former one, it should not be deemed that the legislature intended to change the existing and well settled law which required an indorsement on the summons in all actions, unless it clearly appears that such was the intent. (Douglas v. Douglas, 5 Hun, 140.) Again, there is no reason why the defendant is not as much entitled to a notice of what the action is brought for and under what sections of the statute, when it is commenced by the people as when brought by a priváte person. He could not know the object of the action any more when the people is plaintiff than when an individual brings the action. The object, the intent, of the legislature doubtless, was that a defendant sued in these actions for penalties, should at once be informed by the summons under what law and section of the law the action was commenced. The propriety of giving him that information applies in an action brought by the people as well as in one by an individual. It is reasonable to suppose that the legislature intended to make the section applicable to all actions by whomever brought. We conclude that section 1897 in terms applies to every action for penalties by whomever brought, and' that its force is not intended to be limited by the title, and hence that the order should be reversed with costs and printing expenses and the motion made by the defendant to set aside the summons should be granted, with ten dollars costs.

Learned, P. J., and Landon, J., concurred.

Order reversed, summons set aside.


author: Landon, J. :

text:
    JACOB ARGERSINGER, Respondent, v. GUSTAVE LEVOR, Appellant.

      Action in a Justices Court for an assault “ by the defendant and his dog amendment in County Court to the effect that “ the defendant’s dog, being vicious, and known to the defendant to be so, bit the plaintiff.”

    In tin action, brought in a Justice’s Court, the complaint charged the commission of an assault upon the plaintiff “ by the defendant and his dog.” No objection was taken upon the trial to the jurisdiction of the justice, and the evidence tended to show that defendant’s dog bit the plaintiff; that the dog was vicious, and known to be so by the defendant. There was no evidence to show any assault by the defendant.
    Upon an appeal to the County Court, upon the law¡ only, the court permitting the plaintiff to amend the complaint so as to charge that the defendant’s dog, being vicious, and known to the defendant to be so, bit the plaintiff:

      Held, that the judgment of the justice and the order of the county judge should be affirmed, as the order did not change the claim “in litigation” within the meaning of section 723 and subdivision G of 3347 of the Code of Civil Procedure; that as the justice did not, in fact, exceed his jurisdiction it was proper that the record should be amended in order to be kept within it.
    Appeal from a judgment and order of the county judge of Eulton county, which was entered in the office of the clerk of Fulton county on the 14th day of September, 1S89, affirming a judgment in favor of the plaintiff rendered upon a trial in a Justice’s Court, and allowing the plaintiff to amend his complaint.

      JE!. A, Spencer, for the appellant.

      A. J. Nellis, for the respondent.
   Landon, J. :

The complaint in the Justice’s Court charged an assault upon the plaintiff by the defendant and his dog.” No objection was taken upon the trial to the jurisdiction of the justice. The evidence tended to show that the defendant’s dog bit the plaintiff, and that the dog was vicious, and known to be so by the defendant. There was no evidence of any assault by the defendant. Upon appeal to the, County Court, upon the law only, the County Court, upon motion of the plaintiff, permitted the complaint to be amended so as to charge that the defendant’s dog, being vicious and known to the defendant to be so, bit the plaintiff. We think the judgment and order of the County Court can be upheld.

The Justice’s Court had no jurisdiction of an action of assault and battery. (Code Civil Pro., § 2863.) But no such action was tried. That such a cause of action was stated in the complaint did not deprive the justice of jurisdiction of the cause of action which he did try. The latter cause of action was so far set forth in the complaint as to induce the parties to try it, and when the County Court .permitted the complaint to be amended, it did not permit a change of the cause of action actually tried, but simply conformed the complaint to it. The amendment did not change the claim ” in litigation. (Code Civil Pro., §§ 723, 3347, sub. 6.) Substantial justice was thus promoted. As the justice did not, in fact, exceed his jurisdiction, it was proper that the record should be kept within it.

The judgment should be affirmed, with costs.

Learned, P. J., and Fish, J., concurred.

Judgment and order affirmed, with costs.