author: Herrick, J.:

text:
    In the Matter of the Application of George Smith, Appellant, for a Writ of Mandamus against The Board of Supervisors of St. Lawrence County, Respondent.

      B lection — apportionment of election districts — equality of representation — constitutional construction ■ — purpose of the new Constitution to minimize discretion in making an apportionment — contiguous territory — counties and towns must not he divided — districts must he made as neaniy equal as possible — the convenience of electors is immaterial — extension of the power of the courts over apportionments.

    The fundamental idea of all laws, in relation to the apportionment of election districts in this State, is equality of representation.
    Where a clause of a Constitution, which has received a settled and judicial construction, is adopted in the same words by the framers of a new Constitution, it will be presumed that the construction was likewise adopted; but where, in framing a new or amended Constitution, the framers of an article, covering the same subject-matter as that embraced in an article or provision of the former Constitution which has been judicially-construed, employ different language, or, while employing the same language, add to it words of qualification, limitation or restriction, then if must be held that the framers intended to avoid the effect of the construction placed upon the article or provision as it existed in the former Constitution.
    The Constitution of the State of New York of 1895 shows an evident intention to reduce to a minimum the discretion vested in the Legislature and in boards of supervisors in apportioning Senators and members of Assembly.
    The main purpose of the provisions of the Constitution of 1895 relative to apportionment is to divide the people equally among the Senate and Assembly districts, and the only limitation upon the complete fulfillment of that principle is the provision which prohibits the division of counties and towns and blocks.
    The Constitution of 1895, in order to stop the abuse of having districts irregular in form, has required that they be “ of convenient and contiguous territory, in as compact form as practicable; ” and in order to minimize any inequality of representation in the number of inhabitants in each district, and in order to reduce the discretion of those making the apportionment to a minimum, the Constitution has provided that “Towns or blocks which from their location may be included in either of two districts shall be so placed as to make said districts most nearly equal in number of inhabitants.” The word “shall” is here used in the sense of “must,” and this direction is mandatory.
    The action of the board of supervisors of St. Lawrence county in placing the town of Hermon in the second Assembly district of that county and the town of Madrid in the first- Assembly district of the county, both towns being susceptible of being placed in either Assembly district, is erroneous in view of the fact tliat, had the disposition made of these towns been reversed, the number of voters in each Assembly district, after excluding aliens, would have been more nearly equal.

      The prime consideration in the matter of apportionment being equality of representation, it is immaterial that the division actually made is the most conveni • ent for the purposes of the inhabitants of the towns of Iiermon and Madrid.
    The Constitution of 1895, in mailing apportionments subject to review by the Supreme Court at the suit of any citizen, has made a radical change in the extent of the power which courts formerly had over matters of apportionment.
    Under the old Constitution the court had power merely to direct a body to proceed anew, without any power to indicate what its action should be, but, under the Constitution of 1895, it seems that the court has power either to correct errors in an apportionment, or to send the proceeding back to the body whose proceedings are being reviewed in order that it may correct them.
    Appeal by George Smith from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of St. Lawrence on the 17th day of July, 1895, denying his motion for a mandamus compelling the board of supervisors of St. Lawrence county to reconvene and reapportion said county into Assembly districts.

      Vasco P. Abbott, for the appellant.

      A. X. Parlcer and John M. Kellogg, for the respondent.
   Herrick, J.:

By the Constitution-which came into force January 1, 1895, two members of Assembly were allotted to the county of St. Lawrence, and it became the duty of the supervisors of said county to divide the county into two Assembly districts.

In June, 18,95, the board proceeded to perform such duty. The first district was made to consist of the towns of Oswegatchie, Waddington, Madrid, Lisbon, DePeyster, DeKalb, Morristown, Macomb, Hammond, Rossie, Gouverneur, Fowler, Edwards, Pitcairn and Fine,, with a population of 40,682.

The second district was made to consist of the towns of Canton, Potsdam, Stockholm, Norfolk, Louisville, Massena, Brasher, Lawrence, Pariskville, Ilopkinton, Colton, Clifton, Clare, Pierrepont, Russell and Iiermon, with a population of 39,966.

For the purposes of this discussion perhaps it is well to give the population of each of the towns of the county, excluding aliens.

It is as follows:

"Waddington................................. 1,988
Lisbon...................................... 3,487
De Peyster.................................. 903
Morristown.................................. 1,871
Hammond.................................. 1,561
Grouverneur .A.............................. 5,621
Edwards............................ 1,325
Pine...................................... 1,276
Potsdam................................... 8,268
Norfolk................................•,.... 1,896
Massena..................................... 2,619
Lawrence................................... 2,118
Hopkinton.................................. 1,890
Clifton..................................... 443
Pierrepont................................... 1,904
Hermon.................................... 1,466
Madrid.................................. .. 1,752
Oswegatchie including the city of Ogdensburg... 12,766
De Kalb.................................... 2,721
Macromb.................................... 1,341
Rossie...................................... 1,303
Fowler.............................•......... 1,641
Pitcairn.................................... 1,126
Canton..................................... 5,737
Stockholm.................................. 3,006
Louisville.......... 1,559
Brasher..................................... 2,746
Parishville.................................. 2,135
Colton...................................... 1,810
Clare....................................... 320
Russell..................................... 2,049

The preceding table is taken from the statement of the division of the county into Assembly districts, and the population of each district as made up and filed by the board of supervisors, in making the division of the county into Assembly districts.

The petitioner applied for an order to compel the board of supervisors to make another and different division of the county, claiming that the division already make is unconstitutional, that the-county can be more equally divided, and that that portion of the. Constitution which says, Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens,” has been disregarded, and he claims that there are a variety of divisions that can be made under the Constitution, which will more nearly equalize the population of the two-districts than the present one.

To illustrate, the towns of Madrid and Hermon are upon the dividing line between the districts. Madrid is in the first district and Hermon in the second ; Madrid has a population of 1,752 and Hermon of 1,466; if Madrid is placed in the second district and Hermon in the first, it will give a population for the first district of 40,396, and for the second of 40,252, a difference of 144. Again, if the first district is made to consist of the towns of Oswegatchie, Morristown, Hammond, Macomb, De Peyster, De Kalb, Canton,, Hermon, G-ouverneur, Fowler, Edwards, Russell and Rossie, and the second district of the remaining towns in the county, the population of the first district would be 40,305, and of the second district 40,343, making a difference in population of 38.

An examination of the map of St. Lawrence county will show that either of the districts so made up would be of contiguous territory, and as compact as the division made by the board of supervisors, which is now sought to be reviewed.

I have given these two simply as illustrations. With the table of the population above given, and by an inspection of the map of St. Lawrence county, it will be seen that a variety of others can be-made, by which contiguity and compactness of territory will be obtained, and a less difference of population between the districts-had than under the present division.

In and of itself, the manner in which the case at bar is decided is perhaps of no particular importance, but being one of the first cases under the apportionment article of the new Constitution, it becomes of . great importance that it be decided upon correct principles.

The case is a peculiarly happy one for a demonstration of the-proper principle to be applied in cases of apportionment under the new Constitution, because it is absolutely of no political, or perhaps I should say of no party consequence, how St. Lawrence county is divided ; the same political party will largely preponderate in both districts no matter how they are made up.

What are the true rules or principles to' govern apportionments, ■and have they been applied in this case ?

The cases of The People ex rel. Carter v. Rice (135 N. Y. 473) and The Matter of Baird (138 id. 95; 142 id. 523) have given such full historical accounts of apportionments in this State that a review of former apportionments, under former Constitutions, would be a useless display of learning upon that subject.

The fundamental idea of all laws in relation to apportionments in this State may be said to be equality of representation; and I think the correct principle is set forth in the dissenting opinion of Chief Justice Andrews in .the case of The People ex rel. Carter v. Rice (135 N. Y. 513), where he said: “ It is the cardinal principle of free representative government that every elector shall have equal weight in exercising the suffrage.”

While it is unnecessary here to enter into any exhaustive review of the history of the laws in relation to apportionments in this State, it is perhaps necessary, for the purpose of determining the construction we should give to the present Constitution, that we refer to the ■Constitution which preceded it, and the construction given to it by the court of last resort.

Section 5 of article 3 of the old Constitution provided that “ The members of Assembly shall be apportioned' among the several counties of the State, by the Legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens.” And it further provided that the “board of supervisors in such counties as may be entitled under such apportionment to more than one member, * * * shall assemble at such time as the Legislature making such apportionment shall prescribe, and divide their respective counties into Assembly districts, each of which districts shall consist of convenient and contiguous territory, equal to the number of members of assembly to which such counties shall be entitled, and shall cause to be filed in the offices of the Secretary of State and the clerks of their respective counties a description of such districts, specifying the number of each district and the population thereof, according to the last preceding enumeration, as near as can be ascertained. * * * No town shall be divided in the formation of Assembly districts.”

In the case of Baird v. Board of Supervisors (138 N. Y. 95) the court construed this section, so far as it related to the duty of the board of supervisors, as calling for a division into districts, “ as nearly as may be, of an equal number of inhabitants, regard being had to the other provisions of the section.”

And under such construction the Court of Appeals held that a discretion was vested in the board of supervisors in making the division, and that before the court would interfere with the exercise of that discretion there must be such an abuse of it “ as to clearly show an open and intended violation of the Constitution,” and that it must be a grave, palpable and unreasonable deviation from the standard, so that, when the facts are presented, argument would not be necessary to convince a fair man that very great and wholly unnecessary inequality has been intentionally provided for.” (142 N. Y. 523.)

The last time the Baird case was before the court it refused to-set aside a division of a county into Assembly districts where the difference between the different districts in a county was upwards-of 6,000. (75 Hun, 545; 142 N. Y. 543.)

The various apportionments made under the Constitution of 1846- and its several amendments were the subjects of fierce contentions, and the' abuses and inequalities which could be perpetrated and brought about under them, without any power of correction by the courts, are matters of common knowledge.

When the Constitutional Convention, which framed the present Constitution, met, one of the most interesting and important questions brought before it was that of apportionment, and there was an evident desire and intention to change the law in reference to future apportionments. While the debates of the convention show that the manner in which it apportioned the Senators and Assemblymen was the subject of radical differences of opinion and bitter partisan strife, yet there was an apparent unanimity of opinion as to the principles upon which future apportionments should be made, and as to the principles upon which boards of supervisors should proceed in dividing their counties into Assembly districts.

It has been laid down as a principle of constitutional construction that, where a clause of a Constitution which has received a settled and judicial construction is adopted in the same words by the framers of another Constitution it will be presumed that the construction was likewise adopted. (Black’s Const. Law. 68.)

And I think it may be likewise laid down as a rule that, where in framing a new or amended Constitution the framers of an article relating to the same subject-matter that is embraced in an article or provision of the former Constitution, which has received a judicial construction, employ different language, or, while employing the same language,, add to it words of qualification, limitation or restriction, it must be held that they intended to avoid the effects of the construction placed’upon the article or provision as it existed, in the former Constitution..

The abuses and inequalitiés which were permissible under the former Constitution grew out of the discretion which the court held was vested in the Legislature and in the boards of supervisors, which was only qualified by the provision that the apportionment should be “ as nearly as may be according to the number of their respective inhabitants, excluding aliens; ” and that territorially such Assembly districts should “ consist of convenient and contiguous territory,” and that “no town shall be divided in the formation of Assembly districts.”

The new Constitution in all its provisions shows an evident intention to reduce the discretion vested in the Legislature and in the boards of supervisors, in apportioning Senators and members of Assembly, to a minimum.

Section 4 of article 3 provides “ that each Senate district shall contain, as nearly as may be, an equal number of inhabitants, ■excluding aliens, and be in as compact form as practicable, and shall remain unaltered until the return of another enumeration, and .shall at all times consist of contiguous territory, and no county shall be divided in the formation of a Senate district, except to make two or more Senate districts wholly iii such county. No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of Senate districts; nor shall any district contain a greater excess in population over an adjoining district in the same county than the population of a town or block therein adjoining snob, district. Counties, towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens.”

Section 5 of the same article provides that the members of Assembly shall be apportioned by the Legislature at the first regular session after the return of every enumeration among the several counties of the State, as nearly as may be according to the number of their respective inhabitants.” It then provides for the method of apportioning the members of Assembly among the different counties of the State, providing a mathematical process intended to reduce the discretion of the Legislature, if there is any discretion left, to a minimum. It further provides that in counties entitled to more than one member, the board of supervisors shall divide such counties into Assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory, in as compact form as practicable. * * * No town, and no block in a city inclosed by streets or public ways, shall be divided in the formation of Assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same Senate district than the population of a town or block therein adjoining such Assembly district. Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants.”

It will be observed that the fundamental principle is a division of the Senate and Assembly districts equally among the people. The only limitation upon the complete fulfillment of that principle is the prohibition against the division of counties and tpwns.

It will be noted that nearly all the provisions of those sections of the present Constitution that differ from the provisions of the old Constitution are for the purpose of compelling equality of representation, and to make the Assembly districts as nearly equal as possible in the number of inhabitants. Under other Constitutions it had been found that the simple requirement to divide into districts, “ as nearly equal in number of inhabitants as may be,” would permit a gerrymander, so called, by forming districts of irregular and even detached portions of the territory to be divided.

To prevent that, there have been incorporated into the Constitutions of this and other States the words of contiguous and convenient territory,” or other words of like import. Under that provision, districts were formed in which, while the population was nearly equally divided, yet it was grouped in such a way that while the territory was contiguous, and might be said to be convenient, the party in the minority in the locality divided had an equal or- greater representation than the majority ; or the localities containing the majorities of one party were grouped in a single district, as is illustrated by the well-known “ shoe-string district,” so called, of Mississippi, a district extending 300 miles or more along the Mississippi river and extending back a distance of only twenty miles.

The territory of the district was contiguous, and it could be said to be convenient because the river afforded a natural and ready means of access from one part of the district to the other and afforded a convenient means of communication between the inhabitants of the different parts of the district, but at the same time it accomplished the placing together of the great body of those of one political faith in a single district, when, if divided up and thrown into different congressional districts of the State, their numbers being thus distributed, would have produced districts more evenly divided politically between the great political parties. By this means a political party was enabled to gain a representation to which its numbers did not entitle it.

It was found that under the Constitution in existence in this ' State prior to January 1, 1895, irregular districts could thus be formed, there being no requirement in our Constitution that they should be compact. (Matter of Baird, 142 N. Y. 527.)

Those whp formed them would allege reasons of convenience of communication, etc., which the courts did not feel that they were at liberty under the then requirements of the Constitution, and the discretion that they held to be vested both in the Legislature and in the boards of supervisors, to review and correct.

To stop that abuse it will be observed that in the present Constitution has been placed the requirement of compactness, so that territorially the districts are required to be “ of convenient and contiguous territory in as compact form as practicable.”

If the requirements as to apportionment were left at that, there would still be an opportunity for the exercise of discretion that would produce inequalities of representation when measured by the number of inhabitants in each district, and to reduce that discretion to a minimum the further provisions were brought'in that no district should contain a greater excess in population over an adjóining district in the same Senate district than the population of a town or block therein adjoining such Assembly district, and to minimize it still further we have the following clause : “ Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants.”

Thus the whole intent, it will be seen, of the changes effected by the provisions of the new Constitution in relation to apportionment, is to force as far as possible an equal division of the people into Assembly districts so as to produce an equality of representation and give to every elector an equal weight in the election of members of the Legislature. That being the intent of these provisions of the Constitution, I think the clause “Towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants,” is mandatory, and that the word shall is there used in the sense of must.

The court below, in denying the application of the petitioner,' was governed largely, if not entirely, by the cases heretofore decided in the court of last resort, under former constitutional provisions; but the changes that have been made by the new Constitution, and the reasons for those changes, render the cases heretofore decided no longer of importance, except as historical discussions of the subject and for the general principles that they lay down, applicable to all ■systems of apportionment. They are no longer precedents to be followed, but only precedents to be avoided, and illustrations of what ought not to be done under our existing Constitution; because, as heretofore -stated, the changes that were made in the Constitution were' made for the very purpose of preventing the doing of that which the courts held could be legally done under the ■ old Constitution.

It is a general rule in the interpretation and enforcement of Constitutions that full force and effect shall be given to each word, clause and requirement. Sometimes, however, it is impossible to strictly comply with this rule; one word, clause or requirement may be modified by another, or those of minor importance may have to be subordinated to those of greater.

In making apportionments and divisions of counties under a Constitution with so many requirements, it is obvious that it must frequently happen that all the requirements of the Constitution cannot be strictly complied with ; that there will be a conflict, or seeming conflict, between them, and that a preference must be given to some over the others ;' in such cases those of less importance must give way to those of greater; weight must be given to those requirements that are of primary importance.

Of course, there are some requirements in the division of counties that are imperative, and as to which there is no discretion; those are the prohibition against dividing towns or blocks, and the requirement that no district shall contain a greater excess in population over an adjoining district, in the same Senate district, than the population of a town or block therein, adjoining such Assembly district, and that towns or blocks which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants.

These provisions seem to be mandatory, and can, so far as I can see, all be strictly complied with. As to the other requirements, and as to which there may be some discretion, where there is any conflict or difficulty in carrying them all into effect, preference must be given, as I have before stated, to those of primary importance; they cannot stand upon an equality.

These principles have not been followed in making the division now under review. Confessedly, that part of the Constitution requiring towns or blocks which, from their location, may be placed in either district, to be so placed as to make said districts most nearly equal in number of inhabitants, has not been complied with, and it has not been complied with because it is alleged to be more convenient to arrange them without regard to such requirement.

And the argument made before us in behalf of the respondent was almost entirely confined to the question of convenience, and the propriety of the transposition of the towns of Madrid and Hennon from one district to the other, without paying any attention to other changes that might be made which would produce more nearly an equality of inhabitants between the two districts.

The affidavits read by the respondent set forth that the county of St. Lawrence is the largest in area of any of the counties of the State, and that parts of it are sparsely settled, and that in dividing it into two Assembly districts the supervisors not only considered the number of inhabitants which should be contained in each district, but also the convenience of the territory thus divided. That the town of Ilermon, placed in the second district, and which the petitioner insists should have been placed in the first, is within three-quarters of an hour’s ride by carriage from Canton, also placed in the second district. That Canton is the county seat of said county, and that in the future political conventions of such second district would naturally be held there. That the citizens of the town of Ilermon generally go to Canton for the purpose of transacting their trading, banking and other business; that the town of Hermon has no railroad running through it, and no convenient means of communication with the towns in the first Assembly district, and the inhabitants of said town desired to be in the second district.

That the town of Madrid, which, in said apportionment, was put in the first, and which the petitioner claimed should have been put in the second Assembly district, has a convenient .communication with the city of Ogdensburg and other towns of the first district, and no such means of communication with towns placed in the second Assembly district, and that its supervisor, representing the town, desired that it be placed in the first district. That the apportionment as made was most convenient for the inhabitants residing in said two towns, and was desired by them. That after due and careful consideration of the matter the supervisors reached a conclusion, after taking into account the questions of convenience and the number of inhabitants in each district, that the division as made inflicted the least hardship on the various towns and the inhabitants thereof, and conformed most nearly to the constitutional requirements of any division that could be made.

These reasons for not dividing equally as to population seem to me trivial; there is no pretense of any lack of common interest; there is no pretense that their political rights cannot be exercised as well in one district as in another; they will all vote at their election district in their respective towns, but it is asserted that the present division is more convenient for attending Assembly district conventions, which it is assumed will in the future be held in the localities stated, and if so held, while certainly convenient for the towns of Hermon and Madrid, are just as certainly inconvenient for the majority of the other towns, because the localities where it is assumed such conventions will be held are in each instance, not in the center, or anywhere near the center, either territorially, or in population, of either of such districts, but in one of the boundary towns. But assuming that this division is the most convenient, convenience is not superior to, nor upon a parity with, equality of representation. That is the 'prime consideration.

To give convenience of location any preference over population is to invert the true position of those requirements of the Constitution; to use an old expression, it is “to put the cart before the horse.” To place it upon the same level, to give it the same importance as those portions of the Constitution requiring an equal division of the inhabitants, is to sacrifice substance to'ease, and is to belittle the fundamental principles of free representative government, equality of representation, and “ equal weight in exercising the suffrage,” and is to divert the requirement as to convenience from the purpose it was intended to subserve, and open the door for an exercise of discretion uncontrollable by the courts, and under which representation by the people may be juggled with, and a majority be given a greater voice than it is entitled to, or a minority be given an equal, and perhaps superior voice to that of the majority. These things cannot be absolutely prevented, but the danger of them may be minimized. An absolutely equal division based upon population is not practicable, when neither counties or towns can be divided, but so far as it can be produced under the law, it should be compelled.

It is true that the difference in population between the two districts is small compared with the differences that have been heretofore permitted in the division of counties into Assembly districts, but by a strict compliance with the Constitution it may be made much smaller.

If the argument of convenience is to prevail in this case, and we are to continue to hold that it is in the discretion of the supervisors, for the sake of what they declare to be the convenience of the people, to disregard the provision of the Constitution which says, i! Towns or blocks which, from their location, may be included in either of two' districts, shall be so placed- as to make said districts most nearly equal in number of inhabitants,” then there is no reason, for the sake of convenience, why tnat other provision of the Constitution, that “ No town and no block in a city inclosed by streets or public ways shall be divided in the formation of Senate districts,” should not be disregarded, nor why the further provision,£! Nor shall any district contain a greater excess in population over an adjoining district in the same county than the population of a town or block, therein adjoining such district,” should not also be disregarded by them. If convenience is to be paramount, or placed upon an equality even with these provisions; if we are to hold that -we will not enforce a strict compliance with the requirements of the Constitution, because there is a difference of only 716 between the populations of the two districts, when by a compliance with them the difference may be made much slighter, where are we to stop ; how great must the difference be before the courts will act ? If in the exercise of their discretion, and upon the ground of convenience, we are to hold that because the supervisors are made under the Constitution the body to divide the county, and are possibly vested with some power in so doing, we will not correct their action, then we revert to the construction placed upon the discretion of boards of supervisors in making such division in The Matter of Baird (142 N. Y. 523), where differences between Assembly districts of nearly 6,000 were permitted to stand, because it was held it was not such an abuse of the discretion of the board that the court would reverse its action. To permit this is .to render ineffective and nugatory the provisions of the new Constitution in relation to towns and blocks, which I have quoted.

The provisions of section 5 of article 3, that no Assembly district shall contain a greater excess in population over an adjoining district in the same Senate district than the population of a town or block therein adjoining such Assembly district,” and that towns or blocks which, from their location, may be included in either of two districts, shall,.b.e so placed as to make said districts most nearly equal in number of inhabitants,” were placed in the Constitution for the express purpose of compelling and enforcing an equal division according to population, and to provide for equality of representation, and, as said before, that was the fundamental idea which caused the changes from the old Constitution ; and to carry that idea into effect, and to enforce the true principle of apportionment, those provisions must be held to be paramount to the one providing for convenient territory, as that has formerly been construed by the courts of the State. 'It follows from this that the order appealed from should be reversed, and an order be granted directing the board of supervisors to redistrict the county of St. Lawrence pursuant to the principles herein set forth.

It is said that an order of this kind, made by the court, may eventually result in the courts making apportionments instead of the Legislature and boards of supervisors; that when a court has once made an order compelling a redivision, one apportionment after another may be set aside until one is compelled that tneets the views of the court; that possibly may be true, but it will be time enough to cross that bridge when we come to it.

Courts have heretofore been very chary in interfering with apportionments made by the Legislature, or by boards of supervisors, because the power of apportionment was by the Constitution vested in the Legislature and the boards of supervisors, and they were the sole and only authorities to make such apportionments, and were necessarily vested with a discretion, with which the courts would not interfere except in cases of gross and palpable abuse.

Apportionments were also considered, to a large extent, as legislative and political acts, with which the courts, not being expressly authorized so to do by the Constitution, would not interfere, except in case of an abuse so palpable and evident that such legislative body might be said to have exceeded and gone beyond the powers conferred upon it by the Constitution. But the new Constitution has made a radical change in that respect. Section 5 of article 3 provides that: “ An apportionment by the Legislature, or other body, shall be subject to review by the Supreme Court, at the suit of any citizen, under such reasonable regulations as the Legislature may prescribe.”

However people may differ as to the wisdom of this provision of the Constitution; however much we may regret that the courts have been made a part of the machinery óf the State for the purposes of apportionment, it has been embedded in the Constitution, and the duty is imposed upon them of taking part in such proceedings when called upon to do so, and it is a duty they cannot shirk.

The Legislature has made no regulations under which the power of review may be exercised, but its failure to do so does not deprive the court of the power conferred by the Constitutionthe failure of the Legislature to prescribe rules of practice simply leaves the court to exercise the power conferred according to the usage of the court in similar cases when no express rule or statute is provided for its procedure.

The will of the people that such power shall be exercised cannot be nullified by a failure of the Legislature to provide a procedure regulating the manner of its exercise.

No objection is made in this case as to the manner in which it is sought to review the proceedings of the board of supervisors, and the court, having acquired jurisdiction, will act without regard to the mere form of the proceedings.

"When a power is conferred for the benefit of the public, the exercise of that power, when properly called upon as the law requires, becomes a duty, and the language by which authority to exercise the power is conferred must be construed not merely as permissive, but as mandatory.

A citizen of St. Lawrence county brings this suit, asking us to act in the premises. That is all that is required by the Constitution to give the court jurisdiction.

It does not seem to me necessary at this time to attempt to define the full extent of the power conferred upon the court by the words shall be subject to review by the Supreme Court.” But it seems 'to me that it is much more than the power heretofore exercised by mandamus. The power to review an apportionment is surely something more than the power to determine whether the apportioning body has exceeded the power conferred upon it by the Constitution, and to direct such body to proceed anew, which could be done, but was in effect all that could be done, under the old Constitution, by mandamus; a mere order to compel official action without power to indicate what it should be.

The power to review is valueless unless under it is included the power in the reviewing tribunal either to correct the errors it discovers, or to send the proceeding back to the body whose proceedings are being reviewed, that it may correct them.

The court will not, however, except as a last resort, attempt either to define or exercise the full measure of the power conferred upon it by the Constitution. The good sense of those whose duty it is in the first instance to make apportionments will be relied upon to correct the errors pointed out by the court without its giving such specific directions as to liow tlie corrections are to be made.as would in effect be an apportionment by the court.

In this case neither the letter nor spirit of the Constitution has been complied with, and an order should be made vacating and setting aside the apportionment and division of Assembly districts in ■St. Lawrence county, and directing the board of supervisors to make .a new one.

Putnam, J., concurred in result; Maxiiam, P. J., not sitting.

Order reversed, and order made reversing apportionment as per •opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The Hilton Bridge Construction Company, Appellant, v. The Gouverneur and Oswegatchie Railroad Company and Others, Defendants; Louis Marshall, Respondent.

      Foreclosure of a mechanic's lien ■— one who merely claims to be an assignee of the contractor may be made a party defendant.

    In an action brought by a sub-contractor to foreclose a mechanic’s lien, the supplemental complaint alleged that the defendant Louis Marshall claimed that, before the appointment of receivers for the Moffett, Hodgkins & Clarke Company, the original contractor, that company had assigned to him all its interest' in any sum which might be found due and owing- to that company.

      XL,eld, that the complaint sufficiently alleged that Marshall had an interest in the proceeding, and that, as a person claiming to have an interest in the controversy, he was, within the meaning of section 447 of the Code of Civil Procedure, “a necessary party deiendant for the complete determination or settlement of a question involved therein.”
    Appeal by tlie plaintiff, Tlie Hilton Bridge Construction Company, from an interlocutory judgment of tlie Supreme Court in , favor of the defendant, Louis Marshall, entered in the office of the clerk of the county of St. Lawrence on the 10th day of July, 1895, upon the decision of the court rendered after a trial at the Saratoga Special Terra sustaining the demurrer of said defendant interposed to the plaintiffs amended complaint and dismissing the amended complaint as to such defendant.

      Edward Winslow Paige, for the appellant.

      Guggenheimer, Untermyer cB) Marshall, for the respondent. ■
   Herrick, J.:

This is an equitable action for the foreclosing of a mechanic’s lien. The defendant, the New York Central and Hudson River Railroad Company, heretofore made a motion to have the defendant Louis Marshall made a party to this action. The motion ivas granted; an appeal was taken therefrom, which was ultimately passed upon by the Court of Appeals in 145 N. Y. 390, where a full statement of facts of the action is set forth, and it was there held that the defendant Marshall was at least a proper, if not a necessary party, as the assignee of the original contractor in the case.

Thereafter the plaintiff, by supplemental complaint, brought in the defendant Louis Marshall as a party defendant. To that supplemental complaint the defendant Marshall demurred, which demurrer has been sustained in the court below.

That the defendant Marshall is a proper if not a necessary party to this action has been heretofore decided by the Court of Appeals, and is not now an open question ; the only question open for discussion is whether the plaintiff has pleaded sufficient facts in its supplemental complaint to bring the respondent Marshall in as a proper or necessary party to the action.

The Moffett, Hodgkins & Clarke 'Company was the original contractor in this action, the plaintiff being the sub-contractor under it.

In this supplemental complaint the plaintiff has reiterated all the matters and things set forth in the original complaint, and set forth a judgment in an action wherein tne Moffett, Hodgkins ■& Clarke Company was the defendant, and by which the defendants O’Brien and Booraem were appointed receivers of the said Moffett, Hodgkins & Clarke Company; then follows this allegation: “And, further, that it is claimed by the above-named defendant, Louis Marshall, that before the appointment of such receivers the Moffett, Hodgkins & Clarke Company assigned to him, the said Louis Marshall, all its interest in any sum which might be found due and owing to that company from the defendant the New York Central and Hudson River Railroad Company.” It is claimed here by the respondent Marshall that such allegation is not sufficient as against him.

As heretofore stated, the Court of Appeals has held that Marshall, as the assignee of the Moffett, Hodgkins & Clarke Company, is a proper party to this litigation.

Section 447 of the Code of Civil Procedure reads as follows: “Any person may Ire made a defendant, who has or claims an interest in' the controversy, adverse to the plaintiff, or- who is a necessary party defendant, for the complete determination or settlement of a question involved therein.”

If the assignee of a contractor is a necessary or proper party in proceedings to enforce a mechanic’s lien, is one who claims to be an assignee a proper party ? Is he an adverse party to the plaintiff within the meaning of the Code of Civil Procedure?

It seems to me that, within the meaning of the section of the Code I have quoted, any person whom it is necessary or proper to make a party to the proceedings, for the complete determination of the rights of all persons concerned, and to finally determine the litigation, and who is not united in, or has no common interest, with the plaintiff, or who refuses to join him in the prosecution of the action, may be said to be a party adverse to the plaintiff.

. If I am correct in this, then it seems to me that an allegation in the language of the Code of Civil Procedure, that such party “ claims ” such adverse interest, to-wit, to be the assignee of the contractor, is a sufficient allegation of his interest in the proceeding.

In foreclosure actions, where it is desired to cut off parties who have acquired lieus subsequent to that of the mortgage, by judgment, decree or otherwise, it has been customary from time immemorial to allege that such parties “ have or claim to have ” a lien subsequent to that of the mortgage, the sufficiency of which statement, so far as I have been able to discover, has never been questioned. (See Frost v. Koon, 30 N. Y. 428-448; Bloomer v. Sturges, 58 id. 168.)

It will be observed that the language of the Code of Civil Procedure itself does not require an absolute statement of the interest of the adverse party under the section quoted ; it is only necessary to allege that he claims an interest. The object and purpose of this section of the Code of Civil Procedure was to enforce the old equity rule, that all persons interested in the subject of the suit should be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and to secure a final determination of their rights; to accomplish this it is necessary not only to bring in any persons who have-an interest in the controversy, or in the subject-matter thereof, in fact; but also all those who even clajm to have any interest therein.

To finally dispose of all controversies,' cut off all liens and pre- - rent a multiplicity of suits, it must be obvious that it is necessary not only to dispose of all actual interests, causes of action or liens,, but also of all claims to such rights. So that if it is necessary and proper for a complete determination of the proceedings to foreclose, a mechanic’s lien, to bring in the assignee of the original contractor, it is also proper, if not necessary, to bring in any person who claims, to be such assignee, and an allegation that a defendant claims to-be an assignee is an allegation of fact in the language of the Code of Civil Procedure, and is sufficient to show that he is a proper-party for a complete determination of the proceedings, and to prevent a multiplicity of suits.

For these reasons, the judgment sustaining the demurrer should be reversed, with costs and disbursements of this appeal and costs in the court below.

Mayham, P. J., and Putnam, J., concurred.

Judgment sustaining demurrer reversed, and judgment rendered against defendant upon the demurrer, with costs of this appeal and costs in the court below, with leave to defendant Marshall to plead over within twenty days, upon payment of costs.


text:
    Sarah Kirby, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company and Dell Brown, Appellants.

      Negligence — joint and several liability of wrongdoers — a jury may find in favor of one and against another defendant.

    The liability of wrongdoers is both joint and several; and in an action predicated upon negligence, where two or more persons are sued together, a jury mayfiud in favor of one defendant and against another.
    Appeal by tbe defendants, Tbe President, Managers and Company of tbe Delaware and Hudson Canal Company, and by tbe ■defendant Dell Brown, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county ■of Rensselaer on tbe 25 th day of November, 1894, upon tbe verdict of a jury rendered after a trial at tbe Rensselaer Circuit, and also from an order bearing date tbe 19tli day of November, 1894, and entered in said clerk’s office, denying tbe defendants’ motion for a new trial made upon the minutes.

      Lewis E. Ocurr, for tbe appellant railroad company.

      John LL. Peclt, for tbe appellant Brown.

      Charles E. Patterson, for tbe respondent.
   Herrick, J.:

Tbe action against tbe defendants is one founded upon alleged negligence; in such cases tbe plaintiff may proceed against any one, all or such number of tbe wrongdoers as be may choose. (Roberts v. Johnson, 58 N. Y. 613.)

The liability is a joint and several liability. (Kain v. Smith, 80 N. Y. 458-468.)

In action of tort, where two or more are sued together, a jury may find in favor of one defendant and against tbe other. (Lansing v. Montgomery, 2 Johns. 382; Drake v. Barrymore, 14 id. 166; Lockwood v. Bull, 1 Cow. 322; Beal v. Finch, 11 N. Y. 128-134.)

In this case tbe legal relations between tbe plaintiff and tbe defendant Brown, and* between tbe plaintiff and tbe defendant railroad company, were different; and it seems to me, therefore, that this is peculiarly a case where the above-cited rules are applicable, and where it might well be held that the jury had the power, if they thought the evidence justified them, to hold one defendant responsible and the other not.

Upon the trial, in charging the jury, the court said: “I think they cannot find against oue and in favor of the other under the testimony in this case ; ” to which exception was taken.

That, I think, was error sufficient to call for a reversal of the judgment ; that being so, there is no occasion at this time to examine the other questions argued upon this appeal.

The judgment and order appealed from should he reversed and a new trial granted, costs to abide the event.

Mayi-iam, P. J., and Putnam, J., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


author: .'Putnam, J.: Mayham, P. J.

text:
    Willis T. Honsinger and Others, Respondents, v. John Mulford, Appellant.

      Statute of Jfi'auds — the defense must be interposed, by demurrer, or answer, otherwise it is waived — it cannot be raised by mere objections to evidence — promise to pay. the debt of a corporation as a consideration of an extension of time.

      • Where it does not appear from the allegations contained in a complaint whether the promise upon which the action was brought was oral or written, if the defendant has not set up the Statute of Frauds in his answer, he must be deemed to have waived any defense based upon that statute.
    Unless the statute is pleaded, objections, made by the'defendant upon the trial to verbal proof of the contract in suit, will not avail him.
    Where it appears from the complaint that the contract upon which the plaintiff seeks to recover is within the Statute of Frauds, the defendant should demur; if the invalidity of the. contract does not appear from the complaint the defendant should take the objection by answer, and if the objection is not taken either by demurrer or answer it is waived.
    In an action brought upon an alleged personal agreement by the defendant to pay certain notes, made by the Mutual Benefit Ice Company, it appeared that the ice company was a domestic corporation; that it was indebted to the plaintiffs who were about to commence an action upon tlieir claim; that the defendant was the principal stockholder of the corporation and its president; that he requested the plaintiffs, at the time the notes in question were given, to extend the time of the payment of the indebtedness of the company and promised that, if the extension was granted, he would become personally liable to pay the claim when it became due under the arrangement then made with the plaintiffs, and that, in reliance upon this promise, the plaintiffs extended the time of payment of the debt and took the notes in suit. The agreement of the defendant was in fact oral, but the complaint failed to state whether it was written or oral.

      Held, that the agreement of the defendant, to pay the claim against the company, upon an extension being given to it of the time of payment, was founded upon a sufficient consideration;
    That, as the defendant had failed to plead that, inasmuch as the promise of the defendant related to the payment of the debt of a third person, it must be in writing, that defense was not available to him, and that his objection, to any ■evidence tending to prove the contract, was not effectual to raise a defense based upon the Statute of Frauds.
    Mayham, P. J., dissenting.
    Appeal by the defendant, John Mulford, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Clinton on the 21st day of November, 1894, upon the verdict of a jury rendered after a trial at the Clinton Circuit, and also from an order entered in said clerk’s office on the 21st day of November, 1894, denying the defendant’s motion for a mew trial made upon the minutes.

      T. F. Oq-jiway, for the appellant.

      L. L. Shedden, for the resjiondents.
   .'Putnam, J.:

On the conflicting evidence in this case the jury were authorized to find that on September 2,1890, the Mutual Benefit Ice Company, a domestic corporation, was indebted to plaintiffs in the sum of $6,000 then due, and that plaintiffs were about to commence an ■action upon said claim; that the defendant was the principal stockholder in said corporation and its president; that in an interview with two of the plaintiffs at the date above mentioned, defendant requested them to extend the time of payment of said indebtedness, and agreed, if such extension was granted, to personally become liable for and pay the said claim when it became due under the arrangement then made; that, relying upon such agreement of ■defendant, plaintiffs extended the time of payment of such debt and took two notes of the corporation, which are set out in the complaint, payable at a future date.

The agreement of defendant to pay the claim of plaintiffs was not in writing, but in the complaint it was not stated whether it was written or oral.

On the trial the defendant objected to evidence tending to show the alleged agreement made between the plaintiffs and the defendant at the time in question, on the ground-that such an agreement, to be valid, must be in writing, and that the oral agreement of defendant to pay the debt of the corporation was void under the Statute of Frauds, and afterwards moved to strike out such evidence for the same reason, and upon plaintiffs resting, and again at the termination of the trial, moved to dismiss the complaint on the ground that the promise of defendant, on which the action was based, was not in writing, and, therefore, within the Statute of Frauds and void. The motions were denied, the case was submitted to the jury by the trial court and a verdict rendered in favor of the plaintiffs.

The agreement of defendant to pay plaintiffs’ claim against the Mutual Benefit Ice Company, on their extending the time of payment, was founded upon a sufficient consideration. (Meltzer v. Doll et al., 91 N. Y. 365; Penn. Coal Co. v. Blake, 85 id. 226-232; Hamer v. Sidway, 124 id. 538.)

Hence the plaintiffs were entitled to recover on the defendant’s promise, unless the objection made by the defendant on the trial to the recovery, on the ground that the promise of defendant, not being in writing, was within the Statute of Frauds and void, should have been sustained by the trial court.

As we have seen, it did not appear by the allegations in the complaint whether defendant’s promise was in writing or oral. Hence we think the defendant, not having set up the Statute of Frauds in his answer, waived the benefit of that statute. In Hamer v. Sidway (supra), Parker, J., says : “ It does not appear on the face of the complaint that the agreement is one prohibited by the Statute of Frauds, and, therefore, such defense could not be made available unless set up in the answer.” And the learned justice cites Porter v. Wormser et al. (94 N. Y. 431), in which case the same doctrine is stated in the opinion of Andrews, J. (p. 450). In Wells v. Monihan, et al. (129 N. Y. 164), Finch, J., says: “ So far as the defense in this case rests upon the Statute of Frauds it must fail, for two reasons. No such defense has been pleaded, and it is not raised by the averments of the complaint, and without one or the other of these conditions the defense, if existing' cannot be made available.”

But if any doubt existed'before as to whether it was necessary to plead the Statute of Frauds as a defense or otherwise the benefit of the statute was waived, no such doubt can be entertained since the late decision of the Court of Appeals in Crane v. Powell (139 N. Y. 379).

That case, in effect, holds that unless the statute is pleaded, objection upon the trial to verbal proof of the contract will not avail the defendant. If it appears from the complaint that the contract on which plaintiff seeks to recover is within the statute, defendant must demur. If the invalidity of the contract does not appear from the complaint, defendant must take the objection by answer, and if the objection is not taken, either by demurrer or answer it is waived. In the case cited no objection was taken by defendant to verbal proof of the contract on the ground that it was within the Statute of Frauds, although at the close of the evidence he moved to dismiss the complaint on that ground. In his opinion, O’Brien, J., adverted to that fact and said: But the important question in the case, and upon which we prefer to let the decision rest, is whether, in the light of the adjudged cases, it is not necessary for a defendant who intends to avail himself of the benefit of the statute, as a defense to an action for damages for breach of a verbal agreement, within the statute, to specifically plead it.” The learned judge further said : In this State cases may be found where the opinion is expressed that the defendant may avail himself at the trial of the benefit of the statute, under the general issue, by objection to verbal proof of'the contract. Some of these cases, and perhaps the principal ones, have already been cited to show when and how the defendant is deemed to have waived the benefit of the statute by admitting the allegations of the complaint. It is proper, I think, to observe that they are cases where the complaint was admitted in some way, or the decision was before the Code or founded upon authority antecedent to it. The recent cases in this court sustain the view that it is necessary to plead the statute. * * * The Statute of Frands is a shield which a party may use or not for his protection just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds an exception to the rule.

“ The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this .intention to the opposing party by the pleadings. * * *

“ When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defense must be interposed by demurrer. (§ 488.) When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer (§ 498), and if the objection is not taken in either way, the defendant is deemed to have waived it. (§ 499.) The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it.”

Under the above authorities we are of opinion that defendant waived the benefit of the Statute of Frauds by not setting up the invalidity of the contract as a defense, and, hence, that the trial court did not err in submitting the case to the jury.

We have examined the exceptions taken by the defendant on the trial to the charge of the court and to its rulings in excluding and receiving evidence, and do not think that any of such exceptions require a reversal of the judgment.

The judgment should he affirmed, with costs.

Herrick, J., concurred.

Mayham, P. J.

(dissenting):

This action was brought upon an alleged personal agreement of the defendant to pay two notes made by the Mutual Benefit Ice Company, payable to the order oí W. T. Honsinger & Co., one for $1,000 and one for $5,000. The $1,000 note is in the following form:

“$1,000.00. New York, Aug. 21th, 1890.
“ One hundred and fifty days after date we promise to pay to the order of W. T. Honsinger & Co., $1,000.00 at the West Side, Bank, New York City, with interest, value received.
“ MUTUAL BENEFIT ICE CO.,
“ John Mulford,
Presidents

. The $5,000 note is in the following form:

“$5,000.00. New York, September 2nd, 1890.
“ Thirty-five days after date, we promise to pay to the order of W. T. Honsinger & Co., $5,000.00 at West Side Bank, New York City, with interest, value received.
“MUTUAL BENEFIT ICE CO.,
“ John Mulford,
“ President.”

The complaint alleged that, prior to the making of these notes, and at the time of the making of the same, the Mutual Benefit Ice Company, which was a corporation organized under the laws of the State of New York, was indebted to the plaintiffs, who were co-partners, in the sum of $6,000, and which indebtedness at the time of the making of the notes was due; that John Mulford, the defendant, was president of the ice company, and was a large stockholder therein; that at the time or prior to the making of the notes, the plaintiffs were pressing the ice company for payment, and that the defendant offered to give them the ice company’s notes for the amount of such indebtedness; that the plaintiffs expressed a willingness to accept such notes, provided the defendant would indorse them ; that the defendant declined to indorse as an individual, but then and there promised and agreed to pay said notes if the plaintiffs would receive them, and that pursuant to that agreement, the notes were made and delivered by the president of the company to the plaintiffs.

The answer denied that the defendant had agreed to become personally bound for the payment of the notes, or that the notes were made in consideration of any such agreement by him, or in consideration of the plaintiffs’ forbearing to sue the ice company on its indebt-, edness, and contained also a general denial of the allegations of the complaint. The case shows that before the maturity of the notes the ice company became insolvent; and that its assets had passed into the hands of a receiver; that on the maturity of the notes they were duly presented to the bank at which they were made payable, and payment demanded and refused, and they were duly protested for non-payment; that thereafter, and on the 13th of July, 1891, the receive!* paid to the plaintiffs $621.31 on said notes, and on the 31st day of May, 1892, the further sum of $627.56 was paid on account of said notes; that to recover the balance unpaid on said notes this action was brought.

The principal question of law presented on this appeal is as to the defendant’s personal liability arising out of liis alleged promise to pay the notes at maturity, or as to his liability upon the face o‘f the notes as a joint maker.

On the trial of the action at the conclusion of the plaintiffs’ evidence, which in the main supported the allegations of the complaint, the defendant moved for a nonsuit on the grounds:

First. That the promise upon which this action is based against the defendant is not in writing, and, therefore, within the Statute of Frauds and void.
Second. That there is no evidence or proof that the promise was-for the defendant’s special benefit.
Third. That it appears from the proof that the debt was due from the Mutual Benefit Ice Company, and there is no proof that defendant intended to, or did become personally liable for it; that, upon the testimony of Wever and Honsinger, defendant did not charge himself with the payment of the debt in question.
Fourth. That it appears from the pleadings that the notes were made by the corporation, and no promise of Mulford to pay them which is not in writing can bind him.
Fifth. That if the promise to pay by Mulford was made, as stated by Honsinger and Wever, it was a promise to answer for the debt of another, and void.

This motion was denied, and defendant duly excepted.

The evidence on the part of the defendant tended to show that Mulford made no individual promise or agreement to pay the notes or the indebtedness, and was in substantial conflict witli the testimony offered on the part of the plaintiffs.

At the conclusion of the defendant’s testimony and when the testimony was closed in the case, the defendant renewed his motion for a nonsuit upon the same grounds stated in the original motion, which was also denied by the court, to which the defendant excepted.

If this case turned upon the question of fact as to whether defendant did or did not agree to pay the amounts of these notes, the jury were authorized to find from the evidence, either for the plaintiffs or defendant, and their verdict for the plaintiffs, was, therefore, upon a disputed question of fact, and cannot be disturbed by this court on appeal.

It, therefore, becomes a question of law, to be determined on this appeal, whether, upon the facts as disclosed by the plaintiffs’ evidence, a legal liability was established against the defendant personally.

It is insisted on the part of the defendant that the parol promise of the defendant to pay these notes was a jiarol collateral promise to answer for the debt, default or miscarriage of the Mutual Benefit Ice Company, and was, therefore, a promise to answer for the debt or default of another, and, not being in writing and signed by the defendant, was void within the Statute of Frauds. The language of the statute is: “Every special promise to answer for the debt, default or miscarriage of another person”-“shall be void, unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith.” (2 E. S. 135.)

The above is the language of the statute, although transposed.

But it is insisted on the part of the plaintiffs that the defendant cannot avail himself of the defense of the Statute of Frauds, because the same was not specially pleaded in his answer.

On the trial of this action, when parol evidence was offered by the plaintiffs to prove the negotiations between the parties or prior thereto, and which seem to have led up to the making of these notes, such evidence was objected to by the defendant by the following specific objection:

“ Defendant objected that if any promise was to be proved of the nature alleged in the complaint, it must be in writing, otherwise it was void under the Statute of Frauds.”

This objection was overruled by the •court, and the defendant duly excepted.

It will be observed that the complaint in setting out what is claimed to be the special contract of the defendant to pay these notes, is silent as to whether the promise was in writing or by parol.

The answer of the defendant denied the making of any such contract, and the question here presented is, whether such denial was equivalent to an allegation that any parol agreement would not amount to a valid contract, and in that form put in issue the question whether the contract alleged by the complaint was ever made in a form such as to amount to a valid agreement.

It is well settled upon authority that a defendant cannot avail himself of the defense of the Statute of Frauds unless he either pleads the same in his answer, or where he has denied the plaintiff’s allegation of the existence of a contract, objects to the introduction of parol evidence to prove an agreement which the statute requires should be in writing.

In Barrett v. Johnson (77 Hun, 528), Herrick, J., in discussing the right of a defendant to avail himself of the defense of the Statute of Frauds, uses this language: The complaint of the plaintiff and the answer of the defendant were both in writing. The defendant in his answer did not plead the Statute of Frauds as a defense, although as will be seen from the substance of the complaint, as hereinbefore stated, he was fully apprised of the nature of the plaintiff’s claim; neither was there any objection made by the defendant upon the trial to the reception of the evidence establishing the contract by parol.”

And in Grampp v. De Peyster (80 Hun, 135) the same learned judge, in discussing a similar question, uses this language: “ If we arrive at the conclusion that it was an agreement to pay the debt of another, then the defense of the Statute of Frauds asserted by the defendant is not- available to him now because he did not raise it in his answer, and the evidence establishing such parol contract to pay the debt of another was not objected to by him upon the trial.”

In Crane v. Powell (139 N. Y. 379) it was held in an action upon an alleged contract, which was not to be performed Within one year, but where the defendant did not plead the Statute of Frauds, and permitted the plaintiff to prove, without objection, a verbal agreement to the effect set forth in the complaint, that a motion to dismiss the complaint on the ground that the agreement, not being in writing, was void under the statute, made at the close of the evidence, was properly denied.

These cases seem to give weight to the fact that the evidence, when offered to prove the contract, which by the statute was declared to be void, was not objected to, and the learned judge in the case last cited, on page 384, in discussing the Statute of Frauds, uses this language: “ The Statute of Frauds does not prohibit the making of any agreement in any way that the parties may see fit, nor render them illegal or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before. The vital fact that was in issue in this case was whether the agreement set forth in the complaint was made.”

In the case last cited the evidence was' offered and received with out objection.

The judge also, in the case last cited, adds: “When proof is offered to establish it, that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior or secondary nature, and when such proof is in the case, the error, if any, is not reached by a motion to dismiss the complaint. Now, the plaintiff in this case gave proof of an oral agreement which showed that the minds of the parties met, and that there was mutual assent with reference to the subject-matter, and this is ordinarily the very essence of a contract. It tended to sustain the complaint, as the defendant did not elect to insist upon the statutory form of proof, but virtually assented to the mode of proof that had always been sanctioned by the rules of the common law.”

“Under these circumstances, it seems to me that we cannot say that the finding of the jury is without any evidence to sustain it, or that the defendant’s exception to the refusal of the trial judge to dismiss the complaint is good.”

It will be observed that that case differs from the one at bar in this : tliat the oral common-law proof was received on the trial without objection in that case, while in the case at bar the parol evidence to establish the contract was objected to when offered, and the objection was overruled by the trial judge. No such objection and ruling were before the. Court of Appeals in Crane v. Powell.

In Flora v. Carbean (38 N. Y. 111) it was held that where “ testimony tending to establish a material fact, although incompetent in its nature, is received without objection, * * * the party has a right to insist upon the fact shown thereby, or based thereon.” (Sharpe v. Freeman, 45 N. Y. 808; The Matter of Yates, 99 id. 101.)

It will also be seen from the reasoning of the learned judge in Crane v. Powell (supra) and the cases cited, that he, by no means, holds that where the allegations of the complaint are denied by the answer, and objection is taken to parol evidence at the time it is offered to prove the illegal contract, the defendant may not avail himself of the defense of the statute; and on page 385 of the same case the judge uses this language:

“ If the defendant neither pleads the statute nor objects to what may be called the common-law proof of the agreement, it ought to be held, I think, even upon the authority of the earlier cases, that he has waived the objection. These views are confirmed and illustrated by the application of a principle which is settled beyond debate. When the complaint alleges a verbal agreement within the statute, and the defendant, by his answer, admits it without pleading the statute as a defense, he is deemed to have waived its benefits,” citing several authorities with approbation, among which is Harris v. Knickerbacker (5 Wend. 638).

In that case Marcy, J., in delivering the opinion in the Court of Errors, where the Statute of Erauds was under discussion, uses this language : “ I apprehend that it is now settled that if the defendant admits the agreement and insists on the statute, he can protect himself from a decree for specific performance, notwithstanding his admission ; but if he admits the agreement, but neither pleads the statute, nor insists on it in his answer, he is deemed to have renounced the benefit of it. (6 Ves. 39.) If the bill states generally a contract, which the law requires to be in writing, the court will presume that it is made with the requisite formalities to give it validity until the contrary appears. The defendant, in answering, may either plead that the contract was not in writing, or insist upon that fact in his answer. If he meets the allegation of a contract in the bill with a general denial, and the complainant is put to Ms proof to establish it, he must shew a written contract, and, if he does not, the evidence to establish the issue will be adjudged incompetent.”

None of the cases referred to by the learned counsel for the plaintiffs, in express terms, controvert the law as laid down in the case last cited. On the contrary, all seem to admit that if the objectionable matter in the complaint is denied by the answer, and the defendant objects to parol proof tending to establish the allegations of the complaint, he may, in that way, defend himself from a contract, illegal under the Statute of Frauds.

The reason of that rule seems quite obvious. While it is true that the contracts required by the Statute of Frauds to be in writing are held to be neither immoral nor improper in themselves, yet the statute declares them void, and applying the legal maxim. “ That void contracts are as no contracts,” the defendant, by a general denial of the existence of such a contract, forces the plaintiff to prove a contract in writing, or leave himself without the proof of any legal contract.

Under such circumstances, as was said in Harris v. Knickerbacker (supra), if he fail to prove a written contract “the evidence to establish the issue on his part will be adjudged incompetent.”

If these views are correct, then the admission of parol evidence of this contract was error, and the plaintiffs have failed, by any competent evidence, to establish the liability of the defendant, if it shall be found that the contract under consideration is one in violation of the provisions of the Statute of Frauds.

This brings us to the consideration of the question, Was the contract, as proved, a promise by the defendant, by parol, to answer for the debt, default or miscarriage of the Mutual Benefit Ice Company, the maker of the notes ?

Since the enactment of the Statute of Frauds the question as to what cases do or do not come within its provisions has been the subject of elaborate discussion in the various courts of this State as well as in England.

The side light thrown upon this question by the numerous decisions along the line of judicial investigation which have, from time to time, discussed the meaning, force and effect of this statute until its real interpretation must now be gathered from the most recent decisions of the highest court in this State, giving construction and effect to this statute.

It will be unprofitable here to undertake to enumerate or repeat the numerous decisions made upon this subject, and if we can apply the result of the decisions as they are focused in the most modern announcements by the Court of Appeals, to the facts of this ease, we will accomplish all that is profitable in its examination.

This subject received an exhaustive examination in the opinion of the court, as pronounced by Finch, J., in White v. Rintoul (108 N. Y. 222), and after examining the cases of Leonard v. Vredenburgh (8 Johns. 28); Mallory v. Gillett (21 N. Y. 412); Brown v. Weber (38 id. 187), and Ackley v. Parmenter (98 id. 425), and comparing the decisions in each of these leading cases, respectively, with the others, and discussing the modifications of the rules applicable to the interpretation of this statute that were made from time to time in each of these cases, as compared with the cases preceding it, lie sums up his conclusion in the following language: These four cases advancing by three distinct stages in a common direction, have ended in establishing a doctrine in the courts of this State, which may be stated with approximate accuracy, thus: That where the primary debt subsists and was antecedently contracted, the promise to pay it is original, when it is founded on a new consideration, moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.”

Applying that rule to the case at bar, does the alleged agreement .of the defendant take the case out of the operation of the statute 1

Comparing the case at bar in its leading features with the case under discussion by Judge Finch, and applying the rule laid down by him, and the result reached by him in that case, to the case at bar, the answer to the above question, it seems to us, must be in the negative.

It is undisputed in this case that the indebtedness sought to be recovered was the prior indebtedness of the Mutual Benefit Ice Company, and not of this defendant as an individual. That indebtedness, by the making of the notes in question by the ice company, continued to exist against that company as its indebtedness. There was no such valuable consideration moving to this defendant in the alleged agreement as to place him under an independent duty of payment, irrespective of the liability of the principal debtor.

It is true that it was held in Watson v. Randall (20 Wend. 201) that “ an agreement to forbear to sue a debtor is a good consideration for the promise of a third person to pay the debt, but to render the promise obligatory it must be in writing.”

That rule does not seem to have been abrogated by the rule laid down in White v. Rintoul (supra), and if we are to look for a sufficient consideration to the promisor to take the case out of the statute and make the debt on which this action is brought his debt, we find that no sufficient consideration of benefit to him exists in this case, when compared with the consideration which seemed to exist, moving to the promisor, in the case of White v. Rintoul.

In that case the defendant, who was sought to be charged upon a parol promise, was the father of one of the members of the firm owing the original debt, and was himself a creditor to a large amount of that firm. He was asked by the plaintiff in that action to indorse the note of the firm to secure its indebtedness to the plaintiff. This he declined to do. The firm notes were held by the plaintiff, and just before maturity the defendant stated to the plaintiff That the only way and the best way would be to give the firm time; that it was late in the season, and by waiting until the next summer they could sell their beer, and that he would pay plaintiff for the two notes.”

The plaintiff claimed that, pursuant to that request, he waited, and relying upon that promise, which he insisted was upon a consideration of benefit to the defendant, not only in the way of favor to his son, but in furnishing him a better opportunity to collect the $5,000 the firm owed him, which he stated in the conversation lie might lose. But the court, in passing upon that question, held that that was not a sufficient consideration within the rule established to take the case out of the statute, and that the promise came clearly within the meaning of a collateral promise to answer for the debt of another, and was void.

In the case at bar, it is urged that the fact that the defendant was a stockholder in the company, and, therefore, interested in having favors extended to the company, furnished a sufficient consideration to uphold his promise as an original agreement to pay the debt, and,, therefore, made him primarily liable for its payment, and took the case out of the operation of the statute.

It has been frequently held that the relation of a stockholder to. a company does not constitute him a party in interest, even to such an extent as to disqualify him, under section 829 of the Code of Civil Procedure, from being a witness against the representative of a deceased person as to a personal transaction between the corporation and such deceased person.

There was, therefore, no such direct interest moving to the defendant as a stockholder of the company as would uphold a promise by him to pay the debts of the company, and I can see no sufficient consideration moving to the defendant in his transaction with the plaintiffs to take the case out of the statute and charge him with the payment of these notes, irrespective of the liability of the debtor.

But it is urged that the notes upon their faces charged the-defendant, with a liability as maker, and that the word “President” suffixed to his name is simply a description of the person, and not. of the character of his liability, and we are referred to cases to support that contention.

But this contention does not seem to be justified, either from the-acts of the parties as proved contemporaneously with the making of the notes, or from the allegations of the complaint. His liability under the complaint clearly arises, if at all, out of his contemporaneous parol agreement, and not from the notes themselves.

The 9th paragraph of the complaint charges that on or about the 2d of September, 1890, “the defendant, John Mulford, as president of said company, for value received, made, executed and delivered to the plaintiff two certain promissory notes, of which the following are copies.”

The notes, therefore, were notes of the company, and, as between the original parties thereto in this case, must be held as the notes of the corporation, and not as of the individual who signed them as president.

Note. — The rest of the cases of this term will be found in the next volume (91) Hun.— [Rep.

For the various reasons above stated, I am of the opinion that the plaintiffs failed in establishing’ a liability against the defendant personally, and that the court, on the motion of the defendant, should have dismissed the plaintiffs’ complaint.

Judgment must be reversed and a new trial ordered, costs to abide ■the event.

Judgment affirmed, with costs.


text:
    The Canandaigua Water Works Company, Appellant, v. The Village of Canandaigua and Others, Constituting the Board of Water Commissioners of the Village of Canandaigua, Respondents.—
   Order affirmed, with ten dollars costs and. disbursements.


text:
    William McLaughlin, Appellant, v. William E. Witherspoon, Respondent.
   Judgment and order affirmed.


text:
    The Binghamton Trust Company, Appellant, v. Abijah Weston and Others, Respondents.
   Judgment affirmed.


text:
    Arthur M. Dodge and Others, Appellants, v. Jessie McKechnie, as Survivor, etc., Respondent, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    Sarah Strong Jones, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    William E. Case, Appellant, v. The County of Cayuga and the Board of Supervisors thereof, Respondents.
   Judgment affirmed, with costs.


author: Bradley, J.:

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    James H. Fisher, Respondent, v. Mary E. Filon and Others, Executors, etc., Appellants.
   Judgment affirmed, with costs.—

Bradley, J.:

The testator died in July, 1893. The claim was exhibited to the defendants in December, 1893, and referred in November, 1894. The plaintiff was an attorney and counselor at law. Tho referee found as facts that in or about 1888 Michael Filón, the testator, retained and employed the plaintiff to invest for him about §20,000 in western mortgages, and promised to pay the plaintiff a reasonable compensation therefor; that the plaintiff did so invest §19,400, and after-wards, from 1888 to the time of the death of the testator, at his request took charge of the collection of the interest on the mortgages, attended to the payment of the taxes and the redemption of the mortgaged lands from tax sales, rendered services and gave advice as attorney and counsel in matters relating to the investments, and conducted voluminous correspondence required in and about the business relating to them, and that Iiis services were reasonably ■worth §970. The plaintiff presented no claim for any of the services in question to Mr. Filón during his life, and no account of the services was -produced, nor was evidence of the value cf them in detail given at the trial. It is, therefore, urged that the measure of proof requisite to establish the claim was not furnished by the evidence. It is true that a claim presented against the estate of a deceased person is properly the subject of critical inquiry, and recovery should not ho allowed unless it is supported by very satisfactory evidence. (K arney v. McKeon, 85 N. Y. 136.) There is evidence to the effect that the testator employed the plaintiff to make the investments for him and tending* to prove that he intended to pay him for tho services; that the plaintiff made the investments and attended to the business which followed relating to them. This included tho collection of interest and payment of taxes * so far as it became necessary for the protection of the mortgage liens upon the property. He gave some attention to foreclosure of mortgages and conducted quite an extensive correspondence in and about the business. The only evidence of the value of the services was that given in bulk by the plaintiff. This evidence did not embrace within its import any personal transactions with the decedent. The exception to its reception was not well taken. The statement of claim as exhibited to the defendants is in terms quite general. It did not very definitely advise them of the nature of-the legal services otherwise than that they related to the matters of the investments. All the services which tho evidence tended to prove were performed had that relation. They, therefore, came within the import of the statement .of claim. It does not appear that the defendants required the exhibition to them of a more specific statement of the plaintiff’s claim. There was no error in the denial of the motions made at the close of the evidence to strike out that given in relation to the services of the plaintiff. The fact which the defendants sought to prove, that the plaintiff received payment by way of commission from the western companies, through which some of the investments for Filón were made, would, if established, present a serious objection to his claim for services in making the investments. But the evidence, as the referee held, failed satisfactorily to show that the plaintiff had any relation in the business to those companies inconsistent with his relation to Mr. Filón in the performance for him of such services. The contention that the recovery was partially barred by the Statute of Limitations is answered by the statute, which excludes eighteen months from the time within ■which an action may be commenced against the personal representatives of a deceased person against whom a cause of action exists at the time of his death. (Code Civ. Proc. § 403.) The evidence relating to tlie matter of the plaintiff’s claim for services and to the value of them presented questions of fact within the province of the referee to determine, and his conclusion is fairly supported by the evidence. There was no error m the rulings at the trial. The judgment Should be affirmed*

Lewis and Ward, JJ., concurred.


text:
    Samuel Zurich, Respondent, v. Thomas Mills and Another, Appellants.
   Judgment of County Court affirmed.


text:
    The Market and Fulton National Bank of New York and Another, Appellants, v. Thomas Jones and Others, Respondents.
   Judgment affirmed, with costs.


text:
    Ferdinand A. Trippansee, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    Francis J. Hamilton, as General Assignee, etc., Respondent, v. George A. Lee and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Alfred B. Osgoodby, Respondent, v. Edward P. Mills, Appellant.
   Order affirmed, without costs.


text:
    Christopher Smith and Mary Jane Smith, Appellants, v. The City of Buffalo, Respondent.
   Judgment affirmed, without costs. No opinion.

Ward, J., not sitting.


text:
    Elizabeth Carman as Executrix, etc., Appellant, v. The Lehigh Valley Railroad Company, Respondent.
   Order affirmed.


text:
    Millicent U. Wiss, Respondent, v. Buffalo, Rochester and Pittsburg Railway Company, Appellant.
   Judgment and order affirmed.


text:
    Edward P. Mills and Another, Respondent, v. Huntington R. Kenyon, Appellant, Impleaded, etc.
   Interlocutory judgment affirmed, without costs.

Ward, J., not sitting.


text:
    Samuel P. Guernsey, Appellant, v. Mary N. Guernsey, Respondent.
   Judgment affirmed, with costs.


text:
    Lawrence Roth, Respondent, v. The City of Rochester, Appellant.
   Judgment reversed and new trial granted, costs to abide the event.—

Bradley, J.:

The action is trespass for alleged entry upon and appropriation of the plaintiff’s land. The plaintiff having purchased in 1872 of Samuel Moulson took from him, in March 1874, a deed of the east part of lot 37 and the whole of lot 38 in what was known as Moulson’s subdivision of the Kedie farm, then in the town of Irondequoit, Monroe county, according to a map recorded in the office of the clerk of that county, and bounded north by the center of Linden street and east by the center of Joiner street. The survey and map were made by Horace Jones, surveyor, in 1871, ■and he in the survey and upon tho map located and described Norton street as the northern boundary of the subdivision, and parallel with and south of it Linden street, and south of that and parallel with it Borchard street, also Joiner street at right angles with them. The western boundary of the subdivision was Clinton street. After the extension of the limits of the city of Rochester so as to embrace this tract, and in 1885, the city authorities proceeded to open and grade Linden street. The complaint is, that in doing so there was an encroachment upon plaintiff’s premises, and an appropriation of a strip of his land thirteen and twotentlis feet in width at the east side, reduced to tlio width of eleven and two-tentlis feet at the west side of it, by putting it into Linden •street as opened and graded by the defendant. The fact is undisputed that between the ¡southern boundary of the plaintiff’s land and Linden street as opened and graded by the city, there is that deficiency in the land described in his deed, that is to say, bis east •and west lines are thus made to appear that much shorter than those described in Moulson’s deed to him. The only controverted question has relation to the location of Linden street as actually made by the owner of the premises and represented by the Jones •survey and map. He laid it out and dedicated it as such at the width of three rods. And the plaintiff gave evidence tending to prove that the center line of it was indicated by stakes, and that if its location as thus represented had been observed by the defendant in opening and grading the street, its southern boundary would have been further north, and he would have been left in the undisputed possession of the strip of the northern portion of his premises so alleged to have been appropriated. And such" in effect are the views of Jones, the surveyor, as expressed by his evidence. Upon that state of facts treated as established, tho plaintiff was entitled to recover. As represented by the map before mentioned, Norton street, Linden street and Borchard street aro parallel, and the lots in each tier of lots between those streets are of uniform length north and south. And the fact is undisputed that Linden street as opened is at the distance south from Norton street described on the map as its location by the surveyor. But that is not a controlling fact if it is not the place where the street was actually located by the survey, unless it also appears that it is also the distance from the south boundary of the subdivision tract as represented by the map. There is no question about the location of the west end of Linden street at its junction with Clinton street. The difficulty arises as it proceeds cast to Joiner street. There the distance is not sufficient between the south line of the subdivision tract and Linden street as laid out and graded by the defendant to givo the quantity of land or length of line north and south as described by the survey as represented by tho map, and this deficiency is that complained of by the plaintiff. Tho difference in length between the west line of the tract and on Joiner street may be explained by the fact that in a map of a survey of the Kedie farm made in 1851, in which the lots were so described as to give them the greater length east and west, the lot there numbered 36, which was south of the street afterwards laid out and since known as Borchard street before mentioned, was so described that its east line was twenty links, or thirteen and two-tentlis feet shorter than its west line. While Jones, when he made his survey in 1871, had knowledge of this map of 1851, the difference in the length of the west line of the subdivided tract on Clinton street and that on Joiner street was not observed in making his map. Hence arose the discrepancy Between the actual length of the line and the length as represented by his map of that tract along the latter street. His evidence is to the effect that he commenced his survey at the south side of tho tract subdivided, and described Linden street as parallel with the south line of it. If that is so, and the center line of Linden street ivas located at the east end of Joiner street the same distance from the south boundary as it was on the west end at Clinton street,tho plaintiff’s contention is sustained. This corresponds with the evidence of the witnesses about the location of stakes, to which they refer as before mentioned. And such view, if supported, would place the discrepancy and deficiency in that portion of the tract north of Linden street. The witness Jones, the surveyor, by his evidence, so treats it. The motions for nonsuit and for direction of a verdict for the defendant were properly denied. But the defendant’s exception to the refusal of the learned court to submit to the jury the question relating to the actual location of Linden street seems to have been well taken, The difficulty very likely has arisen from the mistake in Jones’ map. And as it does not appear that he made an actual survey of that part of the tract lying between Norton and Linden streets, the mistake may have been the result of his omission to do so. Nor does it necessarily appear that any stakes were on the ground indicating the actual location of Linden street, at the time it was laid out by the defendant. It appears by tho evidence of the city surveyor that he had before him the Jones map; that ho commenced at and proceeded from Norton street to ascertain the location of Linden street. I-Ic determined it as described on his map, and as laid out and graded by taking as his guide the distance between those streets as given by the Jones map. In that respect the result of his survey does correspond with the description on that map. But the evidence tends to prove that if he had commenced at the southern,houndary and proceeded north according to the description in the Jones map, the city surveyor would, by the adoption of the distances there given, have reached the southern line of Linden street, where the plaintiff claims it was located by the survey of 1871. Although the witnesses who testified to the location of the stakes referred to by them had no personal knowledge that they were the stakes placed there pursuant to the Jones survey, the inference was permitted that they were. Those witnesses, however, had such relation to lots bounded north by Linden street as to give them some interest in the question. The weight of their evidence was for the consideration of the jury. There were also other circumstances furnished by the evidence, and to which it is unnecessary here to refer, proper for their consideration. The question as to the actual location of Linden street by the survey as made by Jones and represented by his map was one of fact for the jury. And for the error m the refusal to submit that question to them the judgment should be reversed and a new trial granted, costs to abide the event.

Lewis, J., concurred; Ward, J., not voting; Davy, J., not sitting.


text:
    Frederick B. Hall, Respondent, v. Clark Allen and Another, Appellants.
   Judgment affirmed, with costs.


text:
    Fidelia Trembley, as Administratrix, etc., Plaintiff, v. The New York, Lake Erie and Western Railroad Company, Defendant.
   Motion for new trial denied and judgment directed for the defendant on the nonsuit.

Bradley, J., not sitting.


text:
    G. Benton Anthony, Appellant, v. Bayard T. Biddlecome, Respondent.
   Order affirmed.


text:
    George C. Buell and Others, Respondents, v. James Mingo and Others, Appellants.
   Judgment modified by striking out the direction of a new trial, and as so modified affirmed, with costs.


text:
    William H. Neal and Others, Respondents, v. Christopher Kerrigan, Appellant.
   Order affirmed, with ten dollars costs and disbursements.