text:
    The People of the State of New York ex rel. Amos Knapp, Commissioner of Highways of the Town of Mayfield, Relator, v. J. Keck, as County Judge of the County of Fulton, and Another, Respondents.

      Highways — who may petition for a highway to he located partly in his own town a/nd partly in another.

    Under the provisions of section 96 of chapter 568 of the Laws of 1890, a person liable to be assessed for highway labor in one town may initiate proceedings to lay out a highway which is located partly in his own town and partly in another town; and where he has complied with all the statutory requirements, and the towns are in the same county, the County Court is authorized to appoint commissioners in the matter.

      Certiorari issued out of the Supreme Court, and attested on the 26th day of December, 1S93, directed to J. Koelc, county judge of the county of Fulton, and John D. Wendell, county judge of the county of Montgomery, and acting county judge of the county of Fulton, commanding them to certify and return to the office of the clerk of the county of Fulton all and singular their proceedings, decisions and actions in the premises, with the date thereof, and all ■and singular the evidence, documents, papers, objections or orders which were submitted to them in regard to the proceedings to lay out a highway partly in the town of Perth, and partly in the town of Mayfield, in Fulton county, together with the rulings and decisions made by them, to the end that said decisions and orders may be reviewed and corrected by the court.

      R. P. Aníbal, for the relator.

      Clarence W. Smith, for the respondents.
   Herrick, J.:

This is a proceeding to review by certiorari an order made by the County Court of Fulton county, confirming the report of the commissioners appointed by said court, who proceeded to lay out a highway partly in the town of Perth, and partly in the town of Mayfield, in Fulton county.

On the 23d day of June, 1892, one Yosburgh presented a petition to the County Court of Fulton county, in which he alleged that he was a person liable for highway labor in the town of Perth, in the county of Fulton, and that on the twenty-fifth day of May preceding he presented an application in writing to the commissioners of highways of the town of Perth and of the town of Mayfield, a copy of which application was attached to the petition ; and further alleged that the relief prayed for in such application to the commissioners of highways had not been granted; that such application was made in good faith, and asked the court to appoint three commissioners to determine upon the necessity of such proposed highway, and assess the damages by reason of the laying out of such highway.

The copy application attached to such petition sets forth that the petitioner is an inhabitant of, and liable to be assessed for highway labor in the town of Perth,, in the county of Fulton, and makes application for the laying out of a highway in said towns of Perth and Mayfield. Such application described the location of such proposed highway, the direction in which it should run, through whose property it would go, until it intersected another highway, and described the point of intersection with such highway. The application is addressed to.the commissioners of highways of the towns of Perth and Mayfield, in the county of Fulton.

The court thereupon made an order appointing three persons, all of the town of Johnstown, Fulton county, as commissioners “ to examine said route and proposed highway, hear any reasons that may be offered for or against the laying out of said highway, and assess all damaged by reason thereof.” The commissioners so appointed proceeded under such order to lay out the highway-and assess damages, and their report was confirmed by the County Court.

■ The highway commissioners of the town of Mayfield objected to the proceedings upon the ground that the proceedings are not authorized by statute, and that no notice of the application for the appointment of commissioners was given to the commissioners of highways; that the petitioner for the laying out of such highway is not a resident or taxpayer in the town of Mayfield, or liable for highway labor in said town, and, therefore, had no authority to institute proceedings to lay out a highway in the town of Mayfield. The proceedings of the commissioners themselves in laying out the highway, and their assessment of damages, do not appear to be questioned.

The principal question argued before us was as to whether a person liable to be assessed for highway labor in one town could initiate proceedings to lay out a highway which was partly in two or more towns.

The proceedings in question were taken under chapter 568 of the Laws of 1890. Section 82 of said act provides that any person or corporation assessable for highway labor may make a written application to the commissioners of highways of the town in which they or it shall reside, or be assessable, to lay out a new highway.

Section 83 provides that whenever the land is not dedicated to the town for highway purposes the applicant shall, within thirty days after presenting the application to the commissioners of highways, by verified petition, showing the applicant’s right to so present the same and that such application has been in good faith presented, apply to the County Court of the county where such highway shall be for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out, and to assess the damages by reason of the laying out of such highway.

Section 84 provides that upon the presentation of such petition the County Court shall appoint three disinterested freeholders, who shall be residents of the county but not of the town wherein the highway is located, to determine the question mentioned in section 83.

Section 90 provides that when application is made to lay out a highway located in two or more towns, all notices of proceedings required to be served upon the commissioners of highways shall be served upon the commissioners of highways of each town.

The proceeding here is obviously under section 96, which provides for laying out a highway which is partly in one town and partly in another.

The only notice of proceeding required to be -served upon the commissioners is the application to lay out the highway; that application the petitioner served upon the commissioners of each town.

The statute no where requires the petitioner to serve notice of his application to the County Court for the appointment of commissioners, upon the highway commissioner of the town or towns.

The petitioner having complied with all the requirements of the statute, the County Court was authorized to appoint the commissioners.

The writ of certiorari should, therefore, be quashed and the order of the County Court confirmed, with fifty dollars costs and-disbursements.

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

Writ of certiorari quashed and order of County Court affirmed, with fifty dollars costs and disbursements.


source: Caselaw Access Project

author: Putnam, J. :

license: Public Domain

text:
    The People of the State of New York ex rel. George Canaday, as Committee, etc., of Jeremiah Canaday, an Adjudged Lunatic, Respondent, v. James H. Williams and Others, as Assessors of the Town of Nassau, Rensselaer County, N. Y., Appellants.

      Assessors — real estate bought with the pension of a lunatic {a dischcM'gecl sailor) is exempt from taxation — the committee is a “person aggrieved” and may review the decision of the assessors — facts conceded on a hewing before the assessors cannot be reviewed — costs, when imposed upon assessors — title to real property should be taken in the name of the lunatic.

    Where it appears that property, standing in the name of the committee of a lunatic, was in fact purchased with money which the lunatic had received as a pension by reason of his being an honorably discharged sailor in the United States navy, it is exempt from levy and sale under execution, and is, therefore, exempt from taxation, and should upon proper application he stricken from the assessment roll by the assessors.
    Where a person aggrieved by an assessment, which is alleged to have'been illegal, applies to assessors for relief, and a hearing is had before them, a fact which was conceded by them upon tlie hearing, as for example that the petitioner was the committee of a lunatic, cannot come up for review on a certiorari brought to review the decision actually made by the assessors. The committee of a lunatic whose real property has been illegally assessed is a “ person aggrieved ” by tlie action of the assessors, within the meaning of section 1, chapter 269 of the Laws of 1880, and, under the power and authority given to such committee by section 2340 of the Code of Civil Procedure, he may sue out a writ of certiorari to review the action of the assessors.

      It seems, that a committee of the person and estate of a lunatic lias no right to take title to real estate, purchased with the money of the lunatic, in his own name as committee, but that the title thereto should be taken in the name of the lunatic.
    Assessors, or other persons whose proceedings may be reversed under chapter 269 of the Laws of 1880, should not he charged with costs unless they acted with gross negligence, in had faith or with malice, and where a question of law, not free from doubt, is submitted to assessors, and their action upon it is 'subsequently reversed, costs ought not to he awarded against them.
    Appeal by tlie defendants, James IT. Williams and others, as assessors of the town of Nassau, Rensselaer county, from a judgment of tlie Supreme Court in favor of tlie relator, entered in the clerk’s office of tlie county of Albany on tlie lJtli day of May, 1895, upon the decision of tlie court rendered after a trial at tlie Albany Special Term, and also from an order made at the Albany Special Term bearing date the 30th day of October, 1894, and entered in the office of the clerk of the county of Albany, denying the defendants’ motion to quash and supersede a writ of certiorari and the proceedings in the action, and also from all further orders, decisions and rulings of the court therein.

      Henderson Peeh, for the appellants.

      Zéb A. Dyer, for the respondent.
   Putnam, J. :

This is an appeal by defendants from the judgment entered herein and from an order of the Special Term denying their motion to quash a writ of certiorari issued under the provisions of chapter 269, Laws of 1880, to review an assessment of certain real, estate of which George Canadpy, as committee of Jeremiah Canaday, a lunatic, holds the legal title. It was placed on the assessment roll by defendants, the assessors of the town of Nassau, N. Y., in the year 1894 against George II. Canaday individually. Delator appeared before said assessors by attorney on the day appointed for hearing grievances, and claimed that said real estate \^as exempt from taxation, on the ground that it was owned by him as committee as aforesaid, and was purchased with pension money of said lunatic received from the United States by said Jeremiah Canaday as a disabled sailor; and relator produced and read to said assessors on said hearing a verified petition showing the facts as claimed by him. The assessors declined to strike said assessment from the roll, and relator obtained a writ of certiorari.

The court below appointed a referee to take evidence under the provisions of section 4, chapter 269, Laws of 1880, and on the report of said referee made findings which appear in the papers submitted to us. Among other things the court found That George Cauaday, as committee of Jeremiah Canaday, an adjudged lunatic, on said 22d day of July, 1889, became and ever since has been and now is the owner of the premises described in the petition herein.

“ That the money used in the purchase of the premises described in this proceeding was pension money received from the United States Government by Jeremiah Canaday, an honorably discharged sailor in the United States Navy.

“ That the property described in the petition in this proceeding is now held by George Canaday as committee of Jeremiah Canaday for and on account of the said Jeremiah Qanaday and the family of said Jeremiah Canaday.”

In reference to the hearing-before the assessors the following findings were made: “ That on such hearing the petitioner, George Canaday, filed with said assessors his affidavit, showing that the land in question was purchased by pension moneys for the benefit of a disabled sailor by moneys paid such disabled sailor by the United States.

“ That upon such hearing the said petitioner, by his said attorneys, stated to said assessors that if they were not satisfied that the statements set forth in the petition were true he would have the petitioner appear in person and would produce evidence before them to show' that the money which purchased this farm Avas pension money received by said committee from the United States, and the said assessors replied that there was no need of doing that.

That said assessors did not request the presence or appearance of said petitioner to make proof of the facts alleged in the petition.

“ That said assessors did not request the production of any proof of the facts alleged in the petition.

“ That said assessors refused to strike the said assessment of said property from said assessment roll of said town and to assess said property as exempt property, basing their decision on the ground that the laAv did not exempt said property from taxation.”

The evidence in the case was sufficient to sustain these findings of the court below.

As the title to said real estate Avas sIioavii to be in relator as committee of said lunatic, and as it was purchased with money of the lunatic received as a pension from the United States, and as property so purchased is exempt fronr levy and sale under execution (Yates Co. Nat. Bank v. Carpenter, 119 N. Y. 550), and hence by statute ■ exempt from taxation, it Avould seem to folloAV that, the assessment in question should have been stricken from the roll by the assessors on the application of relator, and that the court below reached a correct conclusion in the matter unless certain positions taken by the appellants can be sustained.

It is urged that relator failed to sIioav in the court beloiv that he was duly and legally appointed committee of the person and estate of said lunatic. It is a sufficient answer to this position that no such claim was made on the hearing before the assessors. The relator by his attorneys read an affidavit alleging his appointment as such committee, and as the Special Term found, on competent evidence, offered to come in person before the assessors and produce evidence before them of the truth of the matters alleged in the petition and the assessors waived the production of such proof; also, there was testimony below that the assessors said to relator’s counsel on the hearing before them that they did not - dispute the facts set forth in the petition; that they did not believe the law allowed them to exempt such ¡property.

A fact which was conceded by the assessors on the hearing before them is not up for review on the certiorari to review their deter, mination. The office of a certiorari is to review the decision actually made by the assessors. (People ex rel. Brisbane v. Zoll & Others, 97 N. Y. 203; Matter of Corwin, 135 N. Y. 245-251.)

The facts conceded and agreed upon by the parties on the hearing before the assessors could properly be deemed established on the hearing of the certiorari.

There was no dispute as to the fact that the title of the property described in the petition Avas in George Canaday as committee. The defendants assumed to assess it against George II. Canaday individually. I think that under section 1, chapter 269, LaAvs of 1880, the relator, as committee, Avas a person aggrieved by the action of the assessors, and,' under section 2340,- Code of Civil Procedure, he was authorized to sue out a Avrit of certiorari.

The papers submitted sIloav that relator purchased the property in question on a mortgage sale under a mortgage held by him for the lunatic, taking title to George Canaday as committee of Jeremiah Canaday, an adjudicated lunatic. Probably ho should have taken title in the name of the lunatic. It is doubtful Avhethor a committee of the person and estate of a lunatic has a right to take title to real estate in his oavii name for the lunatic. It is held that a committee takes no title to a lunatic’s estate. lie is a mere bailiff to take care of and to administer it under the direction of the court, and in fact is an officer of the court. (Matter of Strasburyer, 132 N. Y. 128 ; People ex rel. Smith v. Commissioners of Taxes, 100 id. 215 ; Underhill v. Jackson, 1 Barb. Ch. 13; Matter of Application of Otis & Others, 101 N. Y. 580, 581; Pharis v. Gere, 110 id. 336.)

I. am inclined to think, therefore, that the purchase by relator of the property in question and the taking of the title thereto in his own name was unauthorized. But, assuming that such is the fact and that relator as committee cannot legally hold real estate of the lunatic, it follows that under the provisions of the Statute of Uses and Trusts he holds title to the property in question as trustee of said Jeremiah Canaday — a mere naked title without interest. (Siemon v. Schurck, 29 N. Y. 598; Reitz v. Reitz, 80 id. 538.)

In* this view of the case the title to the premises in question is in relator as trustee of the lunatic. As such trustee he holds a mere legal, naked title, without any interest in the premises. He holds such legal, naked title for the benefit of Jeremiah Canaday. I conclude, therefore, that as the land is thus held for the benefit of the lunatic, and as'the latter is in fact the beneficial owner thereof, and such land was purchased with his pension, that it is exempt from taxation, and see no reason to doubt that relator as committee, under the provisions of section 2340 (supra.), was authorized to maintain a certiorari to review the action of the assessors. Hence the determination of the Special Term should be sustained, except in one regard.

In the order appealed from costs were awarded against the assessors. By section 6 of chapter 269 (supra), it is provided that costs shall not be allowed against the assessors or other officers whose proceedings may be reversed under the act unless it shall appear that they acted with gross negligence, in bad faith, or with malice. The question submitted to the assessors was not free from doubt, and I think the papers submitted to us do not show such a state of facts as justifies an award of costs against them under the provisions of the act. In this regard the order and judgment should be modified, and, as modified, affirmed, without costs.

Mayuam, P. J., and IIereiok, J., concurred.

Order and judgment modified, and, as modified, affirmed, without costs of appeal.


author: Putnam, J.:

text:
    Caroline Overbagh and Clara E. Elting, Respondents, v. Minard Oathout, Appellant.

      Jijectment — a complaint upon three separate leases — the three causes of action must be separately stated and numbered —• allegation as to title — Code of Givil Procedure, % 483.
    A complaint in an action of ejectment for non-payment of rent, which, sets forth three leases, of different dates and covering different pieces of property, and contains no separate allegation as to the rent reserved or the amount in arrear upon each of the leases, contains three separate causes of action which should be separately stated and numbered.
    A general allegation in a complaint in ejectment, that the plaintiffs now are and for six years last past have been the owners of all the right, title and interest of the lessor in the demised premises and in the rents, covenants and reservations contained therein, and are entitled to receive the rents therein reserved, is sufficient for the purposes of the action ; and the plaintiff is not required to state how he acquired title to the premises.
    Appeal by tlie defendant, Minard Oathout, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 1st day of August, 1895, as denied the application of the defendant that the plaintiffs be required to make their complaint more definite and certain in the following respects, to wit:
    By having’ the statement of facts of each one of tlie three alleged causes of action set forth in said complaint stated therein separately and numbered; also, by having stated in said complaint the amount in arrears for rent on each one of the leases therein set forth; also, by having stated in said complaint what part of the right, title and interest of the said grantee in said leases said defendant has been the owner and in possession of for five years and upwards; and, also, by having stated in said complaint in what maimer the plaintiffs acquired title to the rights and interest of said leaser, Isaac I). Yer Planck, in said demised premises. An appeal was also taken from the decision of the court refusing to award costs to the defendant on said motion.

      Andrew Vanderzee, for the appellant.

      Edgar T. Brackett, for the respondents.
   Putnam, J.:

This is an appeal from an order denying, in part, defendant’s motion to have the complaint made more definite and certain and to have separate causes of action therein separately stated.

The action was ejectment for non-payment of rent, and the complaint set forth three leases; the first, by Isaac D. Yer Plauclc to David Lester, dated March 15, 1791, covering 137 acres; the second, made by Isaac D. Yer Planck to David Lester, dated on the 12th day of September, 1797, covering fifty-one acres, from which thirty-eight acres have been released; and the third, made by Isaac D. Yer Planck to David Lester, dated June 20, 1801, covering fifty-nine acres.

The complaint stated that the yearly rent reserved in the leases was thirty-four and one-quarter bushels of good merchantable wheat or twenty and four one-lmndredths dollars, to be paid on the first day of May 'in each year, but did' not state the rent reserved or amount in arrear on each lease; that the plaintiffs have succeeded to the rights, title and interest of Isaac D. Yer Planck in the demised premises, and the rents, covenants and reservations in said leases; that the defendant is owner of a part of the right, title and interest of David Lester, the lessee aforesaid, and is in possession of a portion of the leased lands. The complaint alleged that notice of intention to re-enter has been given and asked to recover the premises with $195.27 for withholding the same.

The motion was granted in part by directing the service of an amended, complaint, stating the amount of the annual rent reserved on each lease, but denying the motion in all other respects.

I think the complaint contains three separate causes of action, which, under the provisions of section 483 of the Code of Civil Procedure, should have been separately stated and numbered. It sets up .three separate leases under which the plaintiffs claim to recover. They could have brought and maintained an action under each lease separately, and a judgment for or against them would not have estopped them from maintaining a suit on the other leases. It is difficult to see why the causes of action in favor of plaintiffs under the several leases mentioned in the complaint are not as much separate as if the action were brought upon three promissory notes or three bonds.

On tlie trial plaintiffs will be compelled to produce different evidence to maintain tlieir separate causes of action under each of the three leases; they will be obliged to show in each case the lease, the fact that defendant is in occupation of the premises therein described, a breach of the covenants contained in the lease giving a right of re-entry and notice of intention to re-enter. The judgment in the action must determine the amount of rent duo on each lease, and the defendant, before judgment or within six months after plaintiffs are put in possession of the premises thereunder may pay up the rent in arrear.

Hence the same evidence will not support the several causes of action under the several leases set out in the complaint. The cause of action under each lease will require different testimony.

• Although the action is ejectment plaintiffs’ claim is founded upon written instruments reserving an annual rent, and upon defendant’s breach of the covenants contained in said instruments and upon the right to re-,enter therein contained. Hence the action is in fact upon three sealed instruments, and it is quite clear that it contains tnree separate causes of action.

That the different causes of action set forth by plaintiffs should be separately stated is apparent. The defendant may wish to contest as to one and not as to the others. He may conclude to pay the rent in arrear on one of the leases and otherwise contest plaintiffs’ claim. With the complaint as it is defendant would be seriously embarrassed in answering or conducting his defense.

If the several causes of action in the complaint are separately stated, plaintiffs will necessarily be compelled to set forth in their pleading which of the leased lots they claim defendant is the owner and in occupation of, subject to the aforesaid leases.

It has been held that a complaint in an action of ejectment is sufficient if the plaintiff alleges that he is seized and possessed of some interest in the premises and entitled to the possession thereof, and that he is not compelled to show how he acquired title to the premises. (Austin v. Schluyter, 7 Hun, 275 : Walter v. Lockwood, 23 Barb. 228; People v. Mayor of New York, 28 id. 248.)

So, I thinlq the general allegation in the complaint that the plaintiffs are now and for six years last past have been the owners of all the right, title and interest of the lessor in the demised premises and the rents, covenants and reservations therein, and entitled to receive the rents therein reserved, is sufficient.

No question as to whether the complaint, as it is framed, states a, cause of action has been discussed by counsel for the respective parties or is before us for consideration. Were it otherwise, we should doubt whether the pleading sets forth sufficiently the covenants contained in the leases, or any facts showing a breach of the conditions thereof, which entitle .the plaintiffs to re-enter or maintain the action.

The order should be modified by requiring, in addition to the amendment therein directed, that the separate causes of action' set forth in the complaint shall be separately stated and numbered, and, as modified, affirmed, with ten dollars costs and disbursements to appellant.

Heericic, J., concurred; Mayham, P. J., not sitting.

Order modified, and, as modified, affirmed, with ten dollars costs and disbursements to appellant.


text:
    The People of the State of New York, Respondent, v. John Brow, Appellant.

      Criminal trial — the jury must determine whether a witness has sworn falsely or was merely mistaken — expression of an opinion by the court — it must state the facts comedy — refreshing the memory by a memorandum — assuming in a question facts not in evidence.

    Upon the trial of an indictment for a felony, it is erroneous for the court to charge, in substance, that either the defendant or a witness'for the People upon the trial has perjured himself; the proper course is to leave it to the jury to determine whether one of the witnesses in question was mistaken or whether he had intentionally sworn falsely.
    It is improper for the court in its charge to refer to the testimony of a witness in such a way as to inform the jury that, in the opinion of the court, the testimony of the witness was false; a party to an action is entitled to a determination of the jury as to the credibility of a witness, uninfluenced by the opinion of the court.
    While instructing the jury, the court must state the facts correctly ; and if it is uncertain, under the testimony of a witness, as given in the record, whether he-made a particular remark, it is erroneous for the court to assume that he did. make tlie remark and tlien to state to the jury that the remark “ meant a good deal.”
    Upon the trial of an indictment of the defendant for the crime of abducting a female under the age of sixteen years, the defendant controverted the allegation that he had intercourse with the complainant, and that she was under sixteen years of age. A witness called by the People testified that the defendant had admitted the intercourse, but the witness said that, at the time the admission was made, the defendant was joking and laughing, and that he could not tell whether the defendant meant it or not. The defendant testified in his own behalf that what lie had said was a joke. The judge in his charge allowed the jury to see that he did not think that the admission was made as a joke.

      Held, that this informed the jury indirectly that the court did not believe the evidence of the defendant upon this point, and that the remarks of the court were, therefore, objectionable.
    Upon the question as to the age of the complainant, a school teacher testified that she knew her; that when pupils came to school she put down their ages in a record, in her possession at the time of the trial, made by her at the time when the complainant first became her pupil; that she was required to keep sucli a record, and that, independently of the record, she was unable to remember the age of the complainant.

      Held, that the witness was entitled to look at the record in order to refresh her memory.
    It is erroneous to allow a question to be put to a witness which assumes facts not in evidence.
    Appeal by the defendant, John Brow, from a judgment of the Court of Sessions of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 22d day of February, 1895, upon the verdict of a jury convicting him of the crime of abduction.

      John O. Keeler, for tbe appellant.

      Leclyard P. Hale, District Attorney, for the respondent.
   Putnam, J.:

Tlie defendant was indicted in tbe Court of Oyer and Terminer of St. Lawrence county on tbe 3d day of October, 1894, for tbe crime of abduction. Tlie indictment charged that defendant, with others, on the 4th day of August, 1894, took, received, employed, harbored and used, and caused and procured to be taken, received, employed,( harbored and used, a female under tbe age of sixteen years, to wit, one Ida Jones, for the purpose of prostitution and for the purpose of sexual intercourse, neither of said defendants being her husband. Defendant plead not guilty, was tried separately in the Court of Sessions of St. Lawrence county and found guilty. From the judgment of conviction he has appealed to this court.

Defendant, on the trial, controverted the allegations in the indictment that he had had unlawful relations with complainant, and also that she was under sixteen years of age.

After a careful consideration of the evidence produced by the parties on the trial, and the exceptions taken by defendant to the rulings and the charge of the learned trial court, we have reached the conclusion that the judgment of conviction must be reversed on account of some mistakes in the instructions given by the trial court to the jury and rulings made by him on the trial. One of the witnesses called by the People ivas Asa Hawley. He testified to a conversation with defendant on the day of the alleged abduction, which tended to corroborate the testimony of complainant. His testimony was contradicted by defendant. The trial judge in his charge to the" jury made the following remarks: What interest had Mr. Hawley in this case to go upon the stand and tell a falsehood? Because, gentlemen, one of these two men have done it. We look at the English language or use it just as it means, and there is not any use of saying to you that one of these men is mistaken ; that is not true; there is no mistake about it; where an occurrence occurred last August, and one man goes upon the stand and swears positively that a certain thing did occur, and on the other hand another person comes upon the stand and swears that it did not, one of them is telling an untruth. It is for you to say which one it is. What interest had Mr. Ilawley to go upon the witness stand and tell an untruth in this case ? Has he got any ? Is he a disinterested witness ? That is for you to say. What interest had Mr. Brow in this case? You are to take his testimony just the same as any other witness, but it is my duty to say to you, gentlemen, that when he is a witness upon the stand he is a witness who stands here charged with a felony, and you have a right to take into consideration, in determining what weight you will give to his testimony, the fact that he is a witness who is here charged with a crime.”

We think the court erred in thus instructing the jury that either Mr. Hawley or defendant in detailing the conversation referred to had uttered falsehood. He should have allowed the jury to pass upon the matter. The jury might well have determined that one of the witnesses was mistaken and not gnilty of deliberate perjury. An examination of the testimony given by Mr-. Ilawley show's that his recollection of the conversation he had with the defendant on the day of the abduction was not clear ; and it is a well-known fact that honest witnesses, in detailing a conversation that occurred months before, often materially differ in their recollections; Hence, the triaicourt, instead of charging that either defendant or Ilawley had upon the trial perjured themselves, should have left it to the jury to determine whether one of the witnesses was mistaken or had intentionally sworn falsely.

Again, in the portion of the charge above quoted, the trial court inadvertently allowed his opinion as to the respective credibility of the testimony of defendant and Hawley to appear. lie did not directly instruct the jury to believe the statement of Hawley and disbelieve that of defendant, but the jury -were not left in doubt as to his opinion. It has been properly held error for a trial court in its charge to the jury to refer to the testimony of a witness in such a way as to inform the jury that, in the opinion of the court, the testimony of such witness was false. A party to an action is entitled to a determination of the jury on the question of the credibility of witnesses uninfluenced by the opinion of the court. (People v. Gorman, 83 Hun, 605; McKenna v. People, 81 N. Y. 360-363.)

The court also used the following language in regard to the same conversation between Ilawley and defendant: “ If he was down there simply buying blackberries, why did he say to Ilawley, if you find he did say so, that he had everything arranged, and that Welch wanted him (Hawley) to go down ? What was it that was arranged ? That is for you to say. You remember the response that Mr. Ilawley gave; it may have been a slang phrase, perhaps, but it means a good deal, that he was not ‘ in it;5 that is the reply that Mr. Ilawley says he made to Mr. Brow. You are to say, if Mr. Brow made that statement, why did he make it %

In so instructing the jury the court did not state the facts correctly. The witness Ilawley, in first detailing the conversation with defendant, testified that'defendant said “that Willie Welch wanted him and I to go down there; I told him I was not in it; he said ho had got things all fixed and Will Welclx wanted him and I to come down there; that is all there is to it.” Afterwards, oil being further interrogated in regard to that conversation, he corrected his testimony as follows: “ Q. Did you tell him you was not in that kind of business? A. I don’t remember whether I did or not. Q. Did I understand you to swear a moment ago that you said to him when lie was talking there that you was not in it ? A. Yes, sir. Q. Did yoii say that to him ? A. I don’t remember whether I said those very words or not.” It was, therefore, a mistake on the part of the court to say to the jury that in the conversation referred to, Hawley responded to defendant that “lie was not in it,” and that such response “ means a good deal,” The effect of Hawley’s testimony was to leave it uncertain whether he made the remark which the judge thought meant a good deal.

John and Henry Randall had been called by. the People to prove an admission by defendant to the effect that he (defendant) had intercourse with complainant at the time of the alleged abduction. John Randall testified that defendant, at the time he made the admission, was joking and laughing, and he could not tell whether he meant it or not. Henry Randall said: “ I took it they were joking together.” Defendant testified that what he said to John and Henry Randall was said as a joke. Hence, the witnesses who testified in regard to the admission made by defendant of having had intercourse with complainant at the time in question gave evidence from which the jury could have well found that the admission was a mere remark intended as a joke, and not to be taken seriously. And the statement of these witnesses in that regard was not improbable. Would defendant be likely to seriously admit the commission of a felony for which he could be sent to State prison? The trial judge charged in regard to the admission as follows : “ It has been called out upon this trial that some few days after this occurred, whatever it was, that Mr. Brow, in his barber shop, in the presence of three men, admitted that lie had intercourse with this girl down there in the bushes. ' * * * He says to-day it was a joke. It is for you to. say whether it was a joke or not; that is the way he puts it. He says it was done in a joking'way; you have a right to say whether it is a subject which a married man living in the town of Colton would be likely to joke about.” The trial judge evidently thought that the admission was not made in the way of a joke, and he allowed the jury to see what his opinion was. We think his remarks were objectionable for the reasons above stated. In an indirect way- he informed the jury that .he did not believe defendant’s testimony to the effect that what he ¡said to the Randalls about his intercourse with complainant was not intended seriously.

The mistakes above referred to tended to the prejudice of the defendant on the trial and prevented him from obtaining the uninfluenced verdict of the jury on the questions of fact in the case.

One question sharply contested on the trial was as to the age of the complainant. Defendant called Mary Hays, a sclipol teacher, with whom complainant attended school in 1891. The witness testified that she knew complainant and produced a record in her own handwriting of complainant’s attendance and the attendance of the other pupils; that she inquired of the pupils their ages when she opened school and set it down in a record. She testified, in substance, that pupils gave their ages when they came to school, and she took their ages and set them down, and that the record prodnced was a record made by her at the time. The witness afterwards looked at the recoi'd and was unable to x-emember what the complainant told her as to her age, independently of the memorandum. Defeixdant then offered to read the memorandum in evidence, but the court •excluded it. This, we think, was error. The recoi’d was an oi’iginal .memoi’andum kept by the witness, required to be kept by her, and if •on looking at it she was unable to remember the fact of the age of •complainant the memorandum itself was competent evidence. (Nat. Ulster Co. Bank v. Madden, 114 N. Y. 280.) The evidence so offered was important, and its exclusion may have affected the result of the case.

Ve also think the objections to the following questions asked of the witness Hawley should have been sustained: “ Q. What answer did you make to the defendant when he asked you to go down thei’e; that they had got it all fixed up ? ” and, “At the time he asked you to go down there was the girl down there with Welch, down The road ? ”

The witness Hawley had not testified that defendant asked him To go down there, but that defendant had told him that Willie Welch wanted him and defendant to go down there. The allowance of the questions by the court, which assumed that the previous evidence of the witness showed a request on the part of defendant to Hawley to go down where the complainant was at the time of the alleged abduction tended to prejudice defendant before the jury.

There are very many other exceptions taken by the defendant to the rulings on the trial and to the charge which we do not deem it necessary to discuss.

For t-lic reasons above stated the judgment should be reversed and a new trial granted.

Mayham, P. L, and Herrick, J., concurred.

Judgment of conviction reversed and new trial granted.


text:
    The People of the State of New York ex rel. Lott Delaney, Relator, v. The Board of Fire Commissioners of the Village of Saratoga Springs and Others, Respondents.

      Saratoga Springs — power of its fire commissioners — they may employ a fireman to be pain out of a future tax levy— repeal of a statute by implication.

    Tlie provisions of chapter 332 of the Laws of 1887, amending the charter of the village of Saratoga Springs, creating a hoard of fire commissioners, are not affected by that section of the village charter (§ 61 of chap, 226 of 1866), which provides that no debt shall be incurred or created by any officer of the village, in his official capacity, until the money or tax for that specific object shall have been voted or levied as directed by the charter.
    The fire commissioners of the village, provided they do not incur within a year liabilities beyond the amount of the fire fund created by the act of 1887, may control the appropriation of the funds of the fire department by a resolution, employing necessary officers and men, although such resolution is adopted before the tax is- lovied by the village for the fire fund. It is not a ground for the discharge, by the board of fire commissioners of the village, of a fireman that, at the time of the passage of a resolution appointing him, all the moneys to the credit of the fire fund in the hands of the village receiver of taxes were anticipated and appropriated for the sauries of existing employees and for other expenses.
    Certiorari issued out of the Supreme Court, and attested on the 17th dayY>f ■ June, 1895, directed to the board of fire commissioners . of tbe village of Saratoga Springs and to the members of said board, directing them to certify and return to the clerk of the county of Saratoga their proceedings in the premises, with the dates and the record thereof, and all and singular the resolutions, contracts, notes of acceptance, appointments and other papers, records or minutes of any kind, bulletins or notices posted by the chief engineer under their direction relative to the appointment, discharge, removal, suspension or ' notice of the further declination to receive services by them relative to any of the permanent firemen or employees of said board for the year 1895, and especially the relator, and also what, if any, charges were made against the relator, and, if any, how made and what opportunity for a hearing thereon was given to him, and what instructions were given to the chief engineer of the department in regard to the relator in the month of June, 1895, and prior to this date, and by whose orders and authority a notice dated June 8, 1895, and purporting to be signed by such engineer by order of said board, was made and posted, together with all records, minutes, resolutions and proceedings in regard to the relator’s appointment and removal or discharge as a permanent fireman for the year beginning May 1, 1895, which occurred at the meetings held May 19, 1895, and June 7, 1895, to the end that such decisions, proceedings and actions relative to his appointment, discharge or removal as such employee or permanent fireman might be reviewed and corrected on the merits by tire court.

      MoOall & jBrumihan, for the relator.

      A. W. Shepherd, for the respondents.
   Putnam, J.:

By chapter 822, Laws of 1887, amending the charter of the village of Saratoga Springs (Chap. 220, Laws of 1866), a board of fire commissioners was created for said village. The act provided, among other things, that said commissioners should control the expenditure of all funds belonging to the fire department, should have power to employ a clerk, chief engineer, assistant engineer, superintendent of the fire alarm telegraph and four or more firemen, and have the entire and exclusive management and control of all apparatus for the extinguishing of fires in said village, and' of all property belonging to or intended to be used by tbe fire department thereof. The act further provided that the compensation of said engineer, assistant engineer, superintendent of the fire alarm telegraph and firemen should be paid out of the funds of the fire department, and that such employees might be removed by said commissioners, but not without cause and only after having a reasonable opportunity to be heard.

By the charter of said village the trustees thereof are authorized to raise by an annual tax, to be levied in June of each year, for the use of the fire department, the sum of $7,000, and if necessary, in their discretion, a further sum of $1,000, this $7,000 or $8,000 constituting the fire department fund, and the village having no power to raise any other or greater sum; but chapter 322, Laws of 1887 (supra), provides that all penalties for infractions of by-laws enacted by the fire commissioners, and all sums required by law to be paid as taxes by incorporated fire insurance companies, shall be added to the fire department fund.

On March 19, 1895, the relator was appointed fireman by a resolution of said fire commissioners for one year from May 1, 1895, at a salary of $600, payable monthly. The commissioners at the same time appointed, for the said period, a chief engineer, superintendent of the fire alarm telegraph, a clerk and nine other firemen. On March twentieth the relator accepted said appointment and acted thereunder until June 7,1895, when the board of fire commissioners assumed to discharge him. Relator -was not removed for cause, or on charges, or after an opportunity to be heard, but on the sole ground, as stated by the respondents in the return, that on March nineteenth, when he and the other employees were appointed, no money or tax for the fire department fund for the ensuing year had been voted or levied either for salaries of employees or other expenses of the department.

That there was only $1,762.18 to the credit of the fire fund in the hands of the receiver of taxes, which sum was then anticipated and appropriated for the salaries of the then employees and for other expenses; that- by the employment of relator and others on the 19th of March, 1895, the fire commissioners attempted to incur a debt or expenditure of $7,80G in violation of the express provisions of section 61 of the charter of said village, which provides that “No debt shall be incurred or created by said village, by the trustees or any other officer thereof in their official capacity; * * * nor shall any expenditure be made or incurred until the money or tax for that specific object shall have been voted or levied as herein directedthat the contract made or assumed to be made with the relator on March nineteenth was void, and hence that the respondents disregarded it, and the services of relator were dispensed with because no legal contract of employment existed with him.

It is not suggested that relator and the other employees so appointed on March 19, 1895, were not in fact necessary or required by the fire commissioners in the performance of their duties under the act of 1887, but as there was no money unappropriated in the hands of the village receiver belonging to the fire department, and there being none levied or voted at the time, to pay the wages of the said employees for the ensuing year, respondents contend that the fire commissioners had no legal authority to appoint either said chief engineer, superintendent, secretary or firemen j that the commissioners should have awaited the levy of the taxes in June following.

If the contention of the respondents is correct, the fire department of the village in May, 1895, and until the levy of the taxes in June of that year, would have been disorganized and the village without fire protection, and it follows that if in the course of any year after the levy of the annual tax in June the fire fund, through any unusual or unforeseen expenditure, should be exhausted, the commissioners would be unable to employ firemen necessary to do the work until the ensuing June.

With some hesitation we have reached the conclusion that the position taken by the respondents cannot be sustained. We think that the act of 1887 shows an intent to confer upon the fire commissioners power, at any time, to employ men when necessary and proper to keep the fire department in an efficient condition. They have absolute control of the expénditúre of the funds belonging to the fire department. They are given the absolute right to appoint firemen. Under the act we see no reason to doubt that they may in any year control the appropriation of the funds of the department by a resolution adopted before as well as after the tax is levied. The control of the expenditure of the funds of the fire department given to the fire commissioners is unqualified. An examination of the whole act shows an intent to confer upon them such power as is necessary to keep the fire department in an efficient state. W& think their power is not restricted by section 61 of the charter, but only restricted by the provisions of the act of 1887 itself. That act provides that the compensation of officers and employees of the fire department shall be payable out of the fire fund. This fund, as we have seen, is a sum not exceeding $8,000, which the1 trustees of the village may levy annually, together with the amount received from the annual tax on incorporated insurance-companies and certain penalties. The commissioners, under the statute, cannot incur in any year a liability beyond the amount of said fire fund. Should they assume to do so, their act would be without authority. Rut to that extent they can legally' contract without regard to the provisions of section 61 (supra). Had the respondents made it appear that the employment of relator and others on March 19, 1895, created a liability beyond the amount authorized by the statute of 1887, it may be that they would have been authorized to discharge relator. But his dismissal was not placed on that ground in the' return of the respondents, but on the sole ground that his employment was in violation of the provisions, of section 61 (supra).

We think that the doctrine established in the case of The People’ ex rel. Hiram Owen et al. v. Arthur D. Leary et al. (17 Wkly.Dig. 116); approved in Mingay et al. v. Hanson et al. (102 N. Y. 695), as to the water commissioners of said village, applies. In the case cited it was held “That under the Laws of 1872, chapter 763,,. a new department was organized under the control of water commissioners, who have the power to manage and control, repair, make alterations and use all necessary precautions for the preservation and security of the water works. The commissioners receive and expend the income and rents derived from the water works in the discharge of their duties. The statute, as a whole, indicates a power in the commissioners quite independent of the trustees, and confers upon them all the power before that time possessed by the trustees of the village. The trustees have no control over the funds derived from the water works which are to be expended by the commissioners in the discharge of their duties under the law. Undoubtedly the water commissioners are officers of the village, which is liable for their acts clone within the authority conferred by the laws. But they are officers to whom powers are given in excess of the powers given to the officers of the village under the charter of 1866. As to such officers and such powers the restriction of section 61 is by implication and of necessity repealed.”

It will be seen that the case cited is quite similar to this. In that case the powers of the water commissioners of the village of Sai’atoga Springs to incur a debt was considered, and it was held that the water commissioners were not restricted by the provisions of section 61 of the charter. Here, as in that case, a new department was made by the act of 1887, creating a board of fire commissioners. Such board controls the property belonging to the fire department and the expenditure of funds thereof. Although the fire commissioners are officers of the village, powers are conferred upon them by the act in excess of the powers theretofore possessed by the trustees under the charter. It is true that it appears in the case cited that the water commissioners received the greater part of the funds used by them from water rents entirely under their control, while the greater part of the fire department fund is raised by a tax levied by the trustees of the village. But the act of 1887 provides that the fire commissioners shall control the expenditure of the funds of the fire department, and hence the trustees, after levying the tax for the fire fund, have no more control over it than they have over the water fund received from water rents by the water commissioners of said village.

On the whole we think, as held in the case cited as to the water commissioners, that as to the fire commissioners and the powers conferred upon them by the act of 1887, the restriction of section 61 of the charter is repealed by implication as well as by the express enactment contained in section 5 of the act.

The case of Latham v. Richards (12 Hun, 360), to which we are referred by the learned counsel for the respondents, is not parallel. There the trustees of the village of Saratoga Springs, assumed to create a debt for a large amount in the purchase of a farm for a cemetery, no money or taxes for that specific object having been voted. In that ease there was a plain attempt to violate the provisions of section 61 of the charter. No subsequent statute had, by implication or otherwise, repealed section 61 of the charter, which was, therefore, applicable, and hence the contract attempted to be made by the trustees was void. In the case under consideration an act passed subsequent to the act of 1866, creating a new department, authorized the fire commissioners to make the contract with relator under which he claims, and if the latter act is inconsistent with the provisions of section 61 of the said charter that section must he deemed repealed pro tanto.

We conclude that the relator is entitled to judgment, with the usual costs.

Mayiiám, P. J., and IIerriok, J., concurred.

Proceedings of commissioners reversed, with costs and disbursements.


author: Mayi-iam, P. J.:

text:
    Margaret Grogan, Respondent, v. The United States Industrial Insurance Company, Appellant.

      Life insurance policy — assignment offnj an infant — sufficiency of, as to form — secondary proof of its execution — effect of the retention of proofs of death — when the court may decide,questions of fact.

    An infant upon wliosc life a policy of insurance was issued, payable to his executors or administrators, executed an instrument by which he authorized the insurance company, in case he died before Margaret Grogan, to pay the benefit specified in the policy to .her, stating that lier receipt should be conclusive evidence that the sum in cprestion had been paid to the person entitled to it, and that all claims under the policy had been fully satisfied. Peter Grogan having-died, Margaret Grogan brought an action against the company to recover the amount of the policy.

      Held, that, although the instrument had not the technical form of an assignment, it was sufficient, as against the insurance company, to transfer to the plaintiff the right to the money;

    That while the infant, upon reaching majority, might have disaffirmed the instrument, yet, as he had not arrived at majority before liis death, the right of the plaintiff to recover was not affected by his infancy;
    Thai, although the plaintiff had no insurable interest in the life of the assured, and a policy upon his life issued directly to her would have been void as a wager policy, yet that an assignment to her of the policy from a person in whose name and for the benefit of whose estate the policy was issued, was valid.

      Where a witness to an instrument is not, at the time of the trial of an action within the jurisdiction of this State, it is competent to make secondary proof of the execution of the instrument.
    If it appears that proofs of death were served upon an insurance company and were retained by it, until they were produced upon the trial of an action upon the policy under which they were made, the company is estopped from raising the question of their sufficiency.
    Where neither party asks to go to the j uiy, the court is authorized to decide any question of fact; and if there was any evidence in the case to sustain the decision of the court in the premises, such decision will not be disturbed upon an appeal.
    Appeal by the defendant, The United States Industrial Insurance Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 28th day of June, 1895, upon the verdict of a jury rendered by direction of the court.
    The action was originally commenced in a Court of a Justice of the Peace of the city of Cohoes, where judgment was rendered in favor of the plaintiff. The defendant subsequently appealed from said judgment to the County Court of Albany county, where anew trial was had.
    The action was brought to recover upon a policy of life insurance issued upon the life of Peter Grogan, who, at the time when the policy was issued, was an infant, and had not reached majority at the time of his death. The plaintiff was his aunt, but by marriage only.
    The provision referred to in the so-called assignment set forth in the opinion and therein described as “ said second condition mentioned,” was to the effect that the company might pay the sum of money insured to any person who appeared to the company to be equitably entitled to it, by reason of having incurred expense in any way on behalf of the insured for his or her burial, or for any other purpose.

      It-ussell IT. Johnston, for the appellant.

      Marie Cohn, for the respondent.
   Mayi-iam, P. J.:

This action was prosecuted by the plaintiff, as alleged assignee of a policy of life insurance, issued on the life of one Peter Grogan, for $214. The policy was made payable to the executors or administrators of the assured, and the first point made by the appellant on this appeal is, that there was no valid assignment of the policy by the assured to the plaintiff. The instrument under which this transfer is claimed to have been made reads as follows :

“ The United States Industrial Insurance Co.,
“ Home Office, Newark, N. J.,
March 1th, 1891.
“I, the undersigned, the person making application for, and' insured under policy No. 175,/19'2 in the above-named company, hereby request and authorize the said company, in the event of my death prior to the death of the person hereinafter named, to pay the-benefit specified in said policy to Margaret Grogan, and the receipt signed by said person shall be conclusive evidence that such sum, has been paid to the person entitled thereto, and that all claims under this policy have been fully satisfied ; but it is mutually agreed and understood that nothing herein is to vary in any manner any of the provisions of said policy, and that said company may, at its. option, pay said benefit according to the agreement in said second condition mentioned, anything herein to the contrary notwithstanding.
“(Signed.) PETER GROGAN.
Witness, C. F. Applegate.”

Indorsed, “ Albany county, N. Y., clerk’s office, filed March 13th, 1895.”

Tft is contended by the appellant that this does not constitute a valid assignment of this policy to the plaintiff, so as to authorize a recovery in her name.

This instrument seems to have been drawn and witnessed by the agent of the company, acting as superintendent or manager of the same, and while it is not in the technical form of an assignment, we think it clearly transferred to the plaintiff the right to this money, in ease the company was liable to pay the same, and gave her such aii interest in it, and such authority over it, as would, as against the defendant, authorize her to maintain this action, and we see nothing in the case of Sulz v. The Mutual Reserve Fund Life Association (115 N. Y. 563), to which we are referred by the learned counsel for the appellant, which supports the contrary contention.

While the instrument, as is contended by the learned counsel. might have been dise 'firmed by Peter Grogan in his lifetime, on the ground of infancy, on arriving at his majority, had such an event happened, yet I fail to see how the defendant in this action can •avail itself of that fact as a defense against the person who was ¡clearly authorized by the assured by this instrument to receive the money, and give ample and complete release and discharge for the same.

It may be assumed, as is doubtless true, that Margaret Grogan, this plaintiff, had no insurable interest in the life of Peter Grogan, and that a policy on his life, issued directly to Margaret, would have been void as a wager policy, yet there was nothing in her condition or relation that would prevent her from talcing an assignment of the policy from the person in whose name and for the benefit of whose estate it was issued. And there is nothing in this case tending to establish the fact that this policy was taken out in the name of the assured for the benefit of the plaintiff to avoid the legal condemnation that exists against wager policies.

It is also insisted by the appellant that, assuming that the instrument above quoted was an assignment to the plaintiff, yet it was not so proved as to make it admissible as evidence.

There is some evidence tending to show that O. P. Applegate, who witnessed this assignment, ivas not, at the time of this trial, in the jurisdiction of this State, and we think it was competent for the trial judge to receive secondary proof of the execution (The People v. Rowland, 5 Barb. 449-451; Jackson ex dem. Woodruff v. Cody, 9 Cow. 149); and that it was, therefore, proper to allow the proof, either of his signature or of the original signing by the party, and that the execution of this alleged assignment was sufficiently proved.

It is also contended by the appellant that there were not sufficient proofs of death in this case to authorize a recovery. There would be much force in that contention had not the defendant estopped itself from raising that question by the retention of the proofs of death, which were furnished by the plaintiff.

It is true, as contended by the learned counsel, that some of the proofs relied upon were not sufficiently authenticated to allow them, as an original proposition, to be introduced in evidence; but they were relied upon by the plaintiff, served upon the defendant, and manifestly received by it; because, on the trial, they were prodnced upon notice by tlie defendant’s attorney; and we think,, within the adjudged cases, that their retention from the time they were received until they were delivered, on notice to produce them on the trial, constituted an estoppel, and that the defendant cannot now be heard to say they were insufficient.

In Jones, Assignee, etc., v. The Howard Insurance Company of New York (117 N. Y. 103) the plaintiff served proofs of loss,, which were retained by the insurance company, without objection,, for forty-five days. It was held that any objection to their sufficiency and form was waived by the delay. (See, also, McNally v. Phœnix Insurance Co., 137 N. Y. 309 ; Trippe v. Provident Fund Society,, 140 id. 23.)

On the trial of this case the learned judge directed a verdict for the plaintiff for the amount of $204.

Neither party appears to have asked to go to the jury, and the-court was, therefore, authorized to decide the questions of fact in the case, and if there was any evidence to sustain his decision it will not be disturbed on appeal. (Fogarty v. Hook, 84 Hun, 165.)

"We think there was sufficient evidence to justify the conclusion reached by the learned judge, and that the judgment must be affirmed.

Judgment affirmed, with costs.

Putnam and Heerick, JJ., concurred.

Judgment affirmed, with costs.


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    The People of the State of New York ex rel. Peter Harris, Respondent, v. The Commissioners of the Land Office, Appellants.

      Tax sede — failure of the title of the State — purchaser to he repaid —power of the Comptroller to pass judicially upon the validity of a tax sale — an erroneous decision does not affect his jurisdiction,— Commissioners of the Land Office in ordering repayment do not act judicially — mandamus — res adjudicate.

    Upon the hearing of a motion for a peremptory mandamus to compel the Commissioners of the Land Office to repay to the petitioner moneys paid to the State by his assignor and grantor, Jere W. Finch, upon the latter’s purchase from the State of lands which had been theretofore sold for State taxes and bid in upon the sale therefor hy the Comptroller, it appeared that the lands were sold for taxes in 1871, 1877 and 1881, and that Finch purchased from the State in 1883, receiving a certificate of sale but no deed or patent. Thepetitioner alleged that he discovered that the tax sales were void, that he duly made application to the Comptroller under chapter 448 of the Laws of 1885, to have the sales canceled, and that the Comptroller on March 39, 1893, after investigation and examination, duly canceled the sales. These allegations were not denied by the Commissioners of the Land Office, who stated, however, that the title of the State had not failed, and that the Comptroller erred in his decision.

      ■Held, that the petitioner was entitled to be repaid the purchase money and interest, pursuant to the provisions of 1 Revised Statutes, chapter 9, title 5, article 1, section 6 (m. p. 198);
    That the Comptroller had power under sections 88 and 85 of chapter 437 of the Laws of 1855 to pass upon the validity of a tax sale, and that his power in this respect was in the nature of a judicial function;
    ’That these sections were not repealed by chapter 448 of the Laws of 1885, amending section 65 of the act of 1855;
    That the object of such amendment was simply to provide a rule of evidence when the validity of a tax sale was called in question;
    'That if the certificate issued to-Finch, having remained in force for over two years after the last day allowed by law to redeem from a tax sale before the act of 1885 was passed, and having remained in force for six months after the passage of that act before the Comptroller canceled the sales, thereupon became, by the terms of the act, conclusive evidence of the regularity of the sales, but was not so considered by the Comptroller in his decision, this fact did not oust the Comptroller of jurisdiction, but merely showed that he had made a mistake in deciding a matter which was legally and properly before him for decision; 'That such an error could only have the effect of rendering his decision liable to reversal upon its review by- certiorari;
    That the Commissioners of the Land Office, in passing upon the application of thepetitioner, did not act judicially, and that his remedy was by mandamus and not by certiorari;
    That as the petitioner had once obtained a decision of the Comptroller, an officer having jurisdiction in the premises, that the tax sales in question were invalid, he could not be compelled again to submit the matter to another tribunal for adjudication.
    Appeal by the defendants, The Commissioners of the Land Office, from an order of the Supreme Court, made at the Schoharie Special Term and entered in the office of the cleric of the county of Albany 'on the 22d day of April, 1895, directing that a peremptory writ of .mandamus issue.

      Z. 8. Westbrook, for the respondent.

      T. E. Tlcmeoek, Attorney-General, and W. E. Kisselburgh, Jr., .Deputy Attorney-General, for the appellants.
   Putnam, J.:

This is an appeal from an order directing a peremptory mandamus to issue to the Commissioners of the Land. Office commanding them to direct that $6,300, the purchase money paid on or before February 2, 1882, by one Jere W. Finch, assignor and grantor of the applicant, Peter Harris, for certain lands sold by the State to said Finch, be repaid to said Peter Harris out of the treasury of the State with interest.

The State acquired title to the lands in question through various tax sales, and said premises were sold on behalf of the State to Finch for $6,300 on the 1st day of February, 1882; on the 2d day of February, 1882, Finch paid to the Treasurer of the State $6,300, the purchase price aforesaid; no patent or deed was ever issued to Finch, but the Comptroller’s certificate of sale was assigned to him; on the 15th day of December, 1884, said premises were transferred by Finch to the applicant, Harris. Thereafter, about the 29th day of March, 1892, the said tax sales through and by which the State obtained title were, by order of the Comptroller, canceled and set aside. In June, 1892, said Peter Harris presented to the Commissioners of the Land Office an application that the purchase price paid by said Finch for the premises be refunded to him on the ground of the failure of the State’s title. On the 27th day of December, 1892, said application was denied.

In the petition for a mandamus the applicant stated in reference to the tax sales under which the State conveyed the premises in question to Finch, his assignor and grantor, as follows : “ That the said applicant herein, Peter Harris, discovering and claiming that the said State tax sales, and each of them, and the taxes for which said sales of said lands were made in 1871, 1877 and 1881 were wholly illegal and void, and that no title had ever passed to the People of said State, or been given, granted or passed, by reason thereof, or either of said tax sales, duly made application to the Comptroller of said State under and pursuant to the provisions of chapter 448 of the Laws of 1885 of said State, and as provided and authorized thereby, and by law, to cancel, annul and set aside the said tax sales of 1871, 1877 and 1881, and each of them and all the title which the People of said State had acquired to said land thereby, and each of the taxes for which each of said sales had been made upon, tbe grounds provided and authorized by law, because the said sales and each of them, and the said taxes and each of them, for which the said sales had been made, were wholly illegal and void. And the said Comptroller, upon the said application of your applicant, the said Peter Harris, and the proof presented to said Comptroller thereon and therewith, and after due examination and investigation, did, on the 29th day of March, 1892, by proper order, decision and determination, duly cancel, annul and set aside as wholly illegal, null and void the said tax sales of 1811, 1811 and 1881, and the conveyances and certificates therefor and of said sales, and each of them, and all the right, title and interest which the People of the State of New York had, and ever had or acquired therein, or in or to said lands.”

His statement is corroborated by the affidavit of his attorney, Z. S. Westbrook.

The appellants read on the hearing below an affidavit of a deputy attorney-general of the State which states: “ That he has been informed from an examination of the records in the State Comptroller’s office, and believes that the tax sales which were canceled, as shown by the petition of said Peter Harris in the above-entitled matter, were canceled by the Comptroller of the State of New York upon the following grounds : First. That the taxes were not carried out on the assessment rolls by the supervisors. Second. That the amounts of highway taxes on the assessment rolls -were not properly designated, being designated in many instances by abbreviations, such as II. and Ily. Thwcl. That the affidavit attached to the collector’s return of unpaid taxes had no venue. Fourth. That the return of unpaid taxes to the Comptroller’s office described the lands in the river section, whereas they were in the general allotment:” The affidavit does not controvert the statement contained in the petition that Harris duly made application to the Comptroller to cancel the tax sales in question, or that proof was presented to that officer, and that after hearing the same and considering it he duly directed that the sales be canceled. What proofs were offered or what the contents of the petition or papers presented to the Comptroller were, does not appear, the affidavit merely stating that the affiant is informed from an examination of the records of the State Comptroller’s office, and believes, that said tax sales were canceled for the reasons in the affidavit specified.

The statute authorizes the Commissioners of the Land Office to^ direct repayment of the purchase money received by the State on account of land granted by it when the title thereto shall fail, as. follows: Whenever the title of the People of this State to lands granted under its authority shall fail, and a legal claim for compensation on account of such failure shall be preferred by any person entitled thereto, it shall be the duty of the commissioners to direct the payment of the original purchase monies which may have been paid to the State by such person, with interest at the rate of six per cent, from the time of such payment, to be paid out of the treasury on the warrant of the Comptroller.” (1 R. S. 198, § 1.)

It is urged by the learned counsel for appellants that 'the title of the State had not failed, and that the Comptroller, in assuming to decide to the contrary, acted without jurisdiction and that his determination was void; that at the time of the passage of chapter 448 of the Laws of 1885 the certificate of sale from the State under which applicant was in possession of the lands in question had been outstanding over two years and was outstanding at the time of the cancellation and that over six months since the passage of the act of 1885 had then elapsed; that the grounds of the cancellation were not jurisdictional defects in the proceedings, but mere irregularities which were cur§d by the statute of 1885.

The above-quoted provision of the statute (1 R. S. [8th ed.] 618), while providing that when the title of the State to land granted under its authority shall fail it shall be the duty of the commissioners to direct the repayment of the purchase money paid to the State therefor, conferred no power upon the commissioners to determine the fact as to the State’s failure of title; the act is silent in that .regard. But sections 83, 85 of chapter 427, Laws of 1855, confer upon the Comptroller of the State power to pass upon the question of the validity of a tax sale of lands. It has been held that the power of the Comptroller under this act is in the nature of a judicial function. (People ex rel. Ostrander v. Chapin, 105 N. Y. 309.)

Sections 83, 85, chapter 427, Laws of 1855, were not repealed by chapter 448, Laws of 1885, either directly or by implication. The act of 1885 is merely an amendment of section 65 of the act of 1855. The amendment provides a rule of evidence for the Comptroller aucl for courts wlien the validity of a tax sale is called in question, leaving the balance of the act of 1855 in full force. (See People ex rel. Hamilton Park Co. v. Wemple, 139 N. Y. 240, 248.)

By the presentation of the application of Peter Harris to the Comptroller that officer, under the statute, acquired jurisdiction to pass upon the question of the validity of the tax sales referred to. The petition for the mandamus states that Harris duly made application to the Comptroller under and in pursuance of the provisions of chapter 448, Laws of 1885, and as authorized thereby and by law, to cancel said tax sales, aud the Comptroller upon said application and the papers presented therewith did by proper order and decision duly cancel, annul ■ and set aside said sales as wholly illegal and void. This was a sufficient averment of the proper presentation of the application to the Comptroller by Harris and of the judgment or decision rendered thereon by that officer. (Code Civ. Proc. §§ 532, 2080; Brownell v. Town of Greenwich, 114 N. Y. 518; Cutting v. Massa, 15 N. Y. St. Repr. 316.)

There was no general denial interposed to the allegations stated in the petition. _ It was not denied that Harris duly presented his application to the Comptroller to have said tax sales canceled, or that the Comptroller duly rendered his decision on such application, except such denial as is contained in the affidavit read, on the part of the .appellants, which merely states the ground on which the Comptroller rendered his decision. But the affidavit contained no allegation showing or tending to show that the matter was not regularly and properly brought before the Comptroller for his decision.

The applicant, therefore, claiming that the tax sales in question were wholly void, applied to the Comptroller under the statute to cancel them and offered proof before that officer, who, after hearing the proofs, did determine that the sales were void.

As we have seen, his action in passing on the question submitted to him was judicial. On the presentation of the application of Harris -lie could have been compelled by mandamus to pass upon the merits thereof. (People ex rel. Ostrander v. Chapin et al., supra.)

Ye think, therefore, that the Comptroller had jurisdiction to determine the question submitted to him by the applicant, and that’ his judgment, unless reversed, cannot be called in question in this proceeding.

It is suggested by the appellants that in fact, under chapter 448, Laws of 1885, the title of the State to the lands in question had not failed; that the certificate of sale under which Harris held the lands had remained in force over two years after the last day allowed by law to redeem from such sale when the act of 1885 was passed, and had remained- in force over six months after the passage of the act before the Comptroller assumed to cancel the sales, and these facts, under the act, afforded conclusive evidence of the regularity of the sales.

If we assume that this position is correct it merely follows that the Comptroller decided the matter submitted to him erroneously, but it does not follow that he acted without jurisdiction. If Harris had made no application to cancel the tax sales, and had obtained a patent from the State and afterwards commenced an action to eject some person from his land, claiming that by the lapse of time after the passage of the act of 1885 his tax title had become valid and the court before whom the matter was tried, disregarding the rule of evidence prescribed by the act in question, had held his title invalid such a decision might have been an error for which the judgment could have been reversed. But if such a judgment were not appealed from, its validity could not be called in question in another action. The error of the court would not have divested its jurisdiction. So, in this case, the proceeding of applicant to have the tax sales in question canceled was regularly and properly before the Comptroller. It was the business of that officer, under the statute, to pass upon the application, and in passing upon it he acted judicially. If he erred he did so after the matter was before him for decision and after he acquired jurisdiction. His error could not deprive him of jurisdiction, but would only render his decision liable to be reversed on certiorari. . (See Schaettler v. Gardiner, 47 N. Y. 404; Allen v. Utica, Ithaca & Elmira R. R. Co., 15 Hun, 80; Ham, v. Silvernail, 7 id. 33; Porter v. Purdy, 29 N. Y. 106; The People ex rel. Case v. Collins, 19 Wend. 56.)

On the application of Harris the duty of the Comptroller was to find out and decide whether the said tax sales were or were not invalid. He had to judicially pass on the question, and had jurisdiction to do so. Had he held the sales valid, he would have acted within his jurisdiction, and so his holding them invalid, however erroneous bis determination may liave been, did not divest him of jurisdiction. We, therefore, are of opinion that the decision of the Comptroller canceling the tax sales in question on the application of Harris, was made in a proceeding of which that officer had acquired jurisdiction, and although he may have erred in not being governed by the rules of evidence prescribed by the statute of 1885, and his decision might have been, on that account, reversed on certiorari, he did not lose jurisdiction of the case on account of such error, and his decision is binding upon the appellants.

It is claimed that the Commissioners of the Land Office, in denying the application of Harris, acted judicially. We are not referred to any statutory authority conferring upon the commissioners the power to determine the question of the validity of a tax sale. It is undoubtedly true that if they did act judicially in denying the application of Harris, his proper remedy would be by certiorari and not mandamus; but we think the power of the commissioners, under the provisions of the statute above quoted, is not judicial. The cases cited by the appellants (People ex rel. Millard v. Chapin, 104 N. Y. 96 ; and People ex rel. Equitable Life Ass. Soc. v. Chapin, 103 id. 635) refer to decisions of the Comptroller in cases where authority to act judicially is conferred upon him by statute.

If the position of the appellants is correct, Harris, having submitted his case to the Comptroller, and having obtained the decision of that officer adjudicating the invalidity of the tax sales in question —• a valid judicial determination (People ex rel. Ostrander v. Chapin, supra) — is again compelled to submit the same matter for adjudication to another judicial tribunal. We think the position of the appellants cannot be sustained.

We are of opinion that Harris, as grantee or assignee of Finch, was entitled to repayment of the purchase price paid by Finch to the State for the land in question. (See opinion of Andrews, J., in People ex rel. Ostrander v. Chapin, supra.)

As to the other questions involved, we concur in the views expressed by the court below. (12 Misc. Rep. 223.)

The order should be affirmed, with costs.

Herrick, J., concurred; Mayham, P. J., not sitting.

Order affirmed, with costs and disbursements.


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    The People of the State of New York ex rel. Frederick A. Stokes Company, Relator, v. James A. Roberts, Comptroller of the State of New York, Respondent.

      Corporation — tax on its business or franchise — a corporation is not wholly engaged, in manufacturing boohs when dealing in foreign boohs— the percentage oj capital so employed is immaterial— time when the Comptroller may settle an account — his decision as to valuation is controlling.

    Where a corporation, organized under chapter 40 of the Laws of 1848, for the purpose of printing, publishing' and selling books, has authority to do any and all business appertaining to a general book-selling business, and, pursuant to such authority, annually uses a portion of its capital in the purchase and sale of foreign books, it is not a corporation ‘ ‘ wholly engaged ” in carrying on a manufacturing business, and it is, therefore, subject to a tax upon its franchise or business under chapter 542 of the Laws 1880 and the acts amendatory thereof.
    The fact that the principal business of such a corporation is printing, publishing and selling books, and that only a small part of its capital was used in the purchase of foreign books, does not render it less liable to the tax.
    The Comptroller has the right to settle an account for such taxes against a corporation after the fifteenth clay of January in the year when the tax becomes due and payable.
    His determination upon the question of the valuation of the capital stock of a corporation for the purposes of such taxation must stand unless it is clearly shown to have been erroneous.
    Herrick, J., dissenting.
    Certiorari issued out of the Supreme Court, and attested on the 13th day of April, 189o, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had in regard to the revision and readjustment of the account theretofore settled by him on the capital stock assessed against the relator, together with all papers submitted by the relator and filed with him and any examination under oath or otherwise of said relator, or of any person on his behalf.

      James W. Eaton, for the relator.

      T. E. Hancock, Attorney-General (G. D. B. Hasbrouck, Deputy Attorney-General), for the respondent.
   Putnam, J.:

Relator was incorporated in April, 1890, under the provisions of an act of the Legislature passed on the 17tli day of February, 1848, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes” by making and filing the certificates required by the statute. The certificate stated the objects for which the company was formed as follows, viz.: “ To carry on the business of printing, publishing and selling books, pamphlets, pictures, engravings, photographs and prints of all kinds, and newspapers; manufacturing, buying and selling stationery and stationery' articles, writing materials, objects of art and ornaments of all kinds, and to do any and all business connected with or appertaining to a general printing, publishing and book-selling .business.”

It will be seen that relator, by its charter, was not only authorized to carry on the business of printing, publishing and selling books, pamphlets, pictures, engravings and photographs, but also was empowered to buy and sell stationery and other articles, and to do any and all business connected with or appertaining to the printing, publishing and book-selling business.

The evidence shows'that the principal business actually carried on by relator since its incorporation has been the publishing, printing and selling of books.- It has been held that a corporation engaged in such a business is a manufacturer. (Evening Journal Assn. v. State Board of Assessors, 47 N. J. L. 36-42.)

Assuming the doctrine stated in the case cited to be correct, relator since its incorporation has been engaged in carrying on a manufacturing business. And it was such, although in printing and publishing books relator employed contractors to perform portions of the work. The testimony of the witness Foster shows that although the relator contracted with other parties to do the printing, binding and other portions of the work on the books it published, yet that much of the work necessary to produce and manufacture such books was done by relator or its employees. We think the evidence of the witness named shows that the books published by relator were in fact manufactured by it, and hence should be inclined to believe, if it appeared that the printing, publishing and selling of books was the only business relator had been engaged in since its incorporation, that it was not liable for tlio tax imposed on it undéi the provisions of chapter 542 of the Laws of 18S0 and the acts amendatory thereof.

But under the provisions of that act relator is liable to taxation on its franchise or business unless wholly engaged in carrying on a manufacturing business. It appears that outside of its business of -printing, publishing and selling books, relator each year since its incorporation has been engaged in buying and selling foreign books, and has invested in that business yearly the sum of $11,000.

It is impossible, therefore, to say that during the years for which the Comptroller imposed a tax on relator under the provisions of the act of 1880 it was wholly engaged in the business of manufacturing. As it appears that during the period mentioned, it also used a portion of its capital for the purchase and sale of foreign books, it was, therefore, liable to the tax imposed upon it. (People ex rel. Tiffany v. Campbell et al., 144 N. Y. 166.)

The fact that relator’s principal business was printing, publishing and selling books, and that only a small part of its capital was used in the purchase of foreign books, does not render it less liable for the tax. In the Tiffany case the capital of relator was $3,000,000, and the yearly amount expended in the pui’chase of goods not manufactured by the corporation was only $300,000. In this case the capital of the corporation is $105,000, and the amount expended each year in the purchase of books not manufactured by the company was $11,000.

In the opinion of Andrews, L, in the Tiffany case, it is not suggested that Tiffany & Co. were exempted from taxation under the act of 1880, except for that part of its capital employed in buying and selling goods, on the ground that the amount used in that way was inconsiderable as compared with the amount of its capital. He places such exemption of the corporation on the ground that the purchase and sale of the goods was not within its corporate powers, and says: “ The statute was not aimed at, and did not contemplate, the exercise by a corporation of powers ultra vires. If a manufacturing corporation is engaged in business outside of its corporate powers, in connection with its manufacturing business, it does not cease to be wholly engaged ’ in the business of manufacture; that is to say, its only legal and authorized business was that of manufacture. It subjected itself to taxation upon that portion of its capital so used, but, nevertheless, it remained a corporation, which, so far as it exercised its legal powers, was wholly engaged ’ in manufacture, and, therefore, entitled to exemption as to its manufacturing business.”

In the case under consideration the purchase and sale of books was within the corporate powers of the company. The business it did during the years in question of manufacturing, as well as of buying and selling foreign books, was authorized by its charter. ITence it was not, during said years, wholly engaged in the manufacturing business, and the Comptroller did not err in imposing the tax of which relator complains. (People ex rel. Western Electric Co. v. Campbell, 145 N. Y. 587.)

It is claimed that the Comptroller had no right to settle an account for taxes after the fifteenth day of January in the year when such tax became due and payable. It is sufficient to say in regard to this position that the same claim was made in the Tiffany case (see points of appellant, 144 N. Y. 168), and necessarily overruled by the decision in that case. (See, also, People ex rel. Western Electric Co. v. Campbell, 145 N. Y. 587.)

In the case last cited, Bartlett, J., in his opinion, says that it is the established rule, settled by repeated adjudications of this court, that the determination of the Comptroller must stand upon the question of valuation unless clearly shown to have been erroneous.” Under the rule so stated we think relator did not show error on the part of the Comptroller in the valuation made of its capital stock.

The determination of the Comptroller should be confirmed and the certiorari quashed, with fifty dollars costs and disbursements.

Matham, P. J., concurred; IIerrioic, J., dissented.

Certiorari quashed, decision of the Comptroller affirmed, with fifty dollars costs and disbursements.