author: MabtiN, J.:

text:
    THE SYRACUSE SOLAR SALT COMPANY, Appellant, v. THE ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Respondent.

      Right of the owner of the fee in a street to restrain its occupation by a railroad — equitable estoppel — acquiescence and laches — legal rights involved in an equity action.

    The dedication of land to the use of the public as a street or highway does not preclude the owner in fee, subject to the public easement, from maintaining an action against a railroad company which, without his consent or an appraisal of his damages, enters upon and occupies such street or highway with the tracks of its road.
    Such 'an appropriation of a street or highway by a railroad company is the imposition of an additional burden upon, and a taking of, the property of the owner of the fee within the meaning of the constitutional provision which forbids such taking without compensation.

      Semble, that where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, has three remedies: (1.) He may bring successive suits to recover his damages. (2.) He may bring an action in equity to restrain the operation of the road, or (3), when the highway has been exclusively appropriated, he may maintain ejectment.
    A suit may be maintained in equity, by the owner of the fee to restrain a railroad company from unlawfully using his land, and for the recovery of the damages sustained by such use.
    Where, in an action by the owner of the fee to restrain a railroad company, which had not acquired a right of way by condemnation or conveyance, from unlawfully using his land in a public street, and for damages sustained by such use, it does not appear that the land owner had given the railroad company, or its predecessors, any express license to enter upon or construct the railroad over his land in the street, and the circumstances do not allow such license to he presumed or implied, it must he assumed that such entry was without authority, and it constitutes the railroad company making it a trespasser.
    No title to land in a street can he claimed to have been acquired through a sale on the foreclosure of a mortgage given by a railroad company, in occupation of the street, upon all its property and franchises, from the mere fact that it appeared upon a map, made and filed by the company and referred to in the mortgage, that the railroad was laid through the street, with no other evidence or claim that the land had been acquired.
    It was claimed by the defendant, a railroad company, in an action brought by a manufacturing company, the owner of land extending to the center of a public street, to restrain the maintenance of a railroad upon the plaintiff's land in the street, that, although the original railroad company, defendant's predecessor, which had first constructed the railroad, was a trespasser, and that the purchaser of the property and franchises of such original railroad company at a mortgage foreclosure sale thereof acquired no legal title to the land in suit hy such purchase, still the plaintiff was estopped from asserting its legal title against the defendant, because the plaintiff's officers knew of the foreclosure proceedings at the time ; knew that the judgment therein embraced all the property of the railroad company; knew the time and place of the sale, and that all the property of the railroad company was sold under such judgment, but made no claim, and gave no notice of plaintiff’s title to the land until about the time of the commencement of the present action, some thirteen years after the foreclosure sale, and because the defendant was a purchaser for value, and had sold its bonds and stock to bona fide holders, who had no knowledge of any defect in the defendant’s title to the premises in suit.
    There was, however, no proof that any of the plaintiff’s officers attended the foreclosure sale or knew or understood that either the railroad company or the purchaser was led to believe, or did believe, that the property sold included the right of way over the plaintiff’s land; nor was there any proof that any representation whatever as to such right was made, or that the railroad company sold, or offered for sale, any property or interest save that owned by it, or to which it had acquired title by deed, purchase or condemnation; nor was there any evidence tending to show that the purchaser was in any way deceived or mistaken, or that he did not acquire all the title he supposed he would under such sale, or was not fully apprised of the facts of the plaintiff’s title, or that he relied upon any statement made, or upon the omission of the plaintiff to assert its title, in making such purchase.

      Meld, that, under these circumstances, the plaintiff was not estopped by the transactions attending the mortgage, its foreclosure and the sale under it, from asserting its title to the land in question against the defendant or any persons the defendant represented as holders of its bonds or stock.
    That the plaintiff was not estopped from asserting its title to the land in suit owned by it in the city street, by reason of its having sold to the predecessor of the railroad company, defendant, an adjacent piece of land to enable such original railroad company to extend its tracks to other portions of the city, the only fact shown in relation to the transaction, except the transfer of the land by the plaintiff, and the use made of it by the purchaser, being that the plaintiff knew when the • purchase was made that the purchaser intended to build a railroad across it.
    That this was so, even if the extension of the tracks, accomplished through such purchase, would be useless unless the tracks in use in the street could he used, the purchaser having acquired no title to the land in suit by condemnation, or otherwise, and no representations being shown to have been made by the plaintiff, and it appearing that the plaintiff’s silence could not have misled the purchaser.
    The defendant railroad company claimed that the principle was to be applied, that where a party, for a valuable consideration, grants to another a license to make partial use of his land, under circumstances amounting to an implied contract for an easement, and such license is executed, and large sums expended by the licensee upon the faith and credit thereof to the knowledge of the licensor, and such use is continued without opposition for a long period of time on his part, the licensor is estopped from asserting his rights by a suit in equity.

      Held, that no such license or estoppel will be held to exist, except under circumstances which would make the assertion of a legal title operate as a fraud upon the persons claiming under such license or estoppel.
    The doctrine of acquiescence or laches, as a defense to an equity action, is limited to actions of an equitable nature exclusively, or to those where the legal right has expired or the party has lost his right of property by prescription or adverse possession; and where a legal -right is involved and, upon grounds of equity •jurisdiction, the courts are called upon to sustain the legal right, the mere laches of a party, unaccompanied by circumstances amounting to an estoppel, constitute no defense.
    Appeal by the Syracuse Solar Salt Company, the plaintiff, from a judgment of the Supreme Court, entered in the Onondaga county clerk’s office December 11,1891, on the decision of the court at the Onondaga Special Term, dismissing the plaintiff’s complaint on the 'merits, with costs.
    The action was brought by the plaintiff, as the owner and lessee of property on Marsh street in the city of Syracuse, to enjoin the defendant from the maintenance and operation of a steam surface railroad on the street, and to recover damages for the past maintenance and operation thereof. The material allegations of the complaint were put in issue by the answer. On the trial, the court held that the plaintiff was not entitled to the relief sought in this action, and dismissed the complaint on the merits, with costs.

      W. S. Andrews, for the appellant.
    Tracy, McLennan dh AyUng and William B. Ilornblower, for the respondent.
   MabtiN, J.:

The plaintiff is the owner in fee and in possession of certain premises described in the complaint. It has been such owner and held such possession since about March 2, 1860. These premises are situated on the west side of Marsh street, and extend to the center line thereof, subject to the right of the public to use the same as a street or highway. Marsh street was, prior to March, 1860, and ever since has been a public highway, and one of the public streets of the city of Syracuse.

On November 22,1855, the Syracuse Coarse Salt Company leased from the State of New York the other land described in the complaint. This lease was assigned to the plaintiff March 2, 1860. The plaintiff thereupon entered into possession of such land, and has ever since remained in possession thereof under its lease, which has not expired. The easterly line of these premises is also the center line of Marsh street. The premises owned by the plaintiff in fee extend along the center of Marsh street' for a distance of about 800 feet, and the premises leased by it for a distance of about 264 feet. Since 1860, the plaintiff has used the lands, owned and leased by it for the manufacture of coarse salt by solar evaporation, and has erected thereon vats for that purpose. It has also erected upon the lands owned by it six small dwellings fronting on Marsh street, which are occupied by its tenants.

In 1871 and 1872 the Syracuse Northern Railroad Company laid the tracks of its railroad through a portion of Marsh street, and past the premises owned and leased by the plaintiff, and commenced and continued to operate’ its railroad over and upon such tracks. In 4872, 1873 and 1874 it, with the consent of the city of Syracuse, extended its tracks from Marsh street through Franklin street to the tracks of the New York Central Railroad Company, and from Marsh street through various other streets in the city to the tracks of the Chenango Yalley Railroad Company. The defendant and its predecessors have operated this railroad through Marsh street since 1871 and 1872. In front of the premises owned by the plaintiff, the tracks of the railroad were, to some extent, laid upon the west half of Marsh street, and upon the lands of the plaintiff. Upon the same side of the street the company also placed side-tracks and switches, but the main track, for substantially the whole distance, is beyond the center line of tbe street, and upon lands to which the plaintiff has no title. The city of Syracuse consented to the use which was made of Marsh street for railroad purposes, including the laying of a switch therein, to the extension of the tracks from Marsh street through Franklin street to the tracks of the New York Central and Hudson River Railroad Company, and to the connection made between the tracks in Marsh street and the tracks leading to the Chenango Yalley Railroad.

In 1873 the Syracuse Northern Railroad Company purchased of the plaintiff, for $585, a piece of land containing about one-third of an acre, which adjoined the premises now owned by the plaintiff and extended to the center' of Marsh street. This land was purchased to enable the railroad company to extend its tracks from Marsh street, through Franklin street, to the tracks of the New York Central and Hudson River Railroad Company. After its purchase the company, in making such extension, laid its tracks across the land so purchased, which would have been practically useless to the company, unless it could also use its tracks in Marsh street. This fact was known to the plaintiff when it sold the land.

The tracks and switches operated by the defendant in Marsh street were, however, laid and have been maintained without the express consent of the plaintiff, without acquiring any title to that portion of Marsh street owned and leased by it, without paying, or offering to pay, any compensation therefor, and without instituting any proceeding to condemn or acquire plaintiff’s interest therein.

In July, 1874, an action was commenced against the Syracuse Northern Railroad Company to foreclose a mortgage given by it, which covered all the property, tracks, rights and franchises it had in Marsh street. Certain towns in Oswego county and the city of Syracuse were made parties to that action, which was defended. Judgment of foreclosure was entered therein, and the property, rights and franchises of said company were sold' thereunder in August, 1875. The company was subsequently reorganized under the name of the Syracuse and Northern Railroad Company, and consolidated with the defendant December 15, 1875, when the defendant became the purchaser and owner of the property sold under such foreclosure. The tracks and switches in Marsh street have been used by the defendant and its predecessors from the time they were laid until the time of the commencement of this action.

The officers of the plaintiff knew of the pendency of the foreclosure action, that defenses had been interposed, that judgment of foreclosure was rendered, that the property described in said judgment was to be sold, the time and place of siich sale, and that the property was sold to the defendant’s predecessor in title. No claim was made or notice given by the plaintiff of any adverse interest in the right of way in Marsh street, used and occupied by the Syracuse Northern Railroad Company and its successors, until just prior to the commencement of this action, nor was any claim made or notice given to the defendant or its predecessors of any right, title or interest in or to the property involved in this action until about that time.

The defendant was a purchaser for value of the property acquired under such foreclosure, including all the rights and property of the Syracuse and Northern Railroad Company and its predecessor' in and to Marsh - street and the property owned by it therein. The defendant’s grantor had no knowledge that the plaintiff claimed any right, property or interest in the street, and was a purchaser of the property in good faith.

Before the foreclosure sale a large amount of bonds had been issued by the Syracuse Northern Railroad Company, secured by the mortgage foreclosed. Since such sale a large amount of bonds has been issued by the defendant, secured by mortgages on the property and franchises purchased at such sale, which bonds are now in the hands of third parties who purchased them for value prior to the commencement of this action, without knowledge of any defect in the title of defendant or its grantor in or to the premises and property covered by said mortgages. The issuing of said bonds and making of said mortgages were matters of public notoriety. The present stockholders of defendant’s road have, to a large extent, become such since the consolidation and before the commencement of this action. They and the holders of the defendant’s bonds paid full value for such stock and bonds without knowledge of any defect in the title of defendant or its grantors, or of any claim of the plaintiff to the property involved in this action, and were purchasers in good faith of such stock and bonds.

James J. Belden became a director of the Syracuse Northern Railroad Company June 11, 1872, and its president June 15, 1872. He continued as such president and director until October 22,1875. The firm of Dennison, Belden & Co., of which ho was a member, became stockholders of that road to the amount of $37,000 on June 4, 1872, and continued to be stockholders up to the time of the foreclosure sale. On March 8,1877, James J. Belden became the owner of $44,900 of the capital stock of the plaintiff, which he still owns. He was a director of the plaintiff from 1877 to 1890, and was its president from 1877 to 1887. A. Caldwell Belden was also a member of the firm of Dennison, Belden & Co. He has been a large stockholder of the plaintiff from March 8, 1877, to the present time. He was a director from 1877 to 1890, and its president from 1887 to 1890.

Since 1872 a steam railroad has been maintained and operated by the Syracuse Northern Railroad Company, its grantees and the defendant in Marsh street, partly upon that portion which is owned in fee by plaintiff. From the time the tracks were laid in Marsh street up to the commencement of this action the Syracuse Northern Railroad Company and its successors have i operated the railroad therein without opposition from the city of Syracuse, and it has, in various ways, recognized the rights of the defendant and its predecessors to operate the railroad in that street, and has consented to such use of the street by the defendant and its predecessors.

The plaintiff made no objection to such use of Marsh street by the defendant and its predecessors for the period of about seventeen years, and until just previous to the commencement of this action in 1888. The railroad and switches in that street are lasting, intended for continuous and permanent use, and the defendant threatens and intends'to continue to maintain, use and operate said railroad and switches. The defendant’s main track is laid for substantially the whole distance in front of plaintiff’s premises on Marsh street, upon the surface of the street.

This action was commenced December 7, 1888. For seventeen years prior to this action the plaintiff permitted the defendant and its predecessors to occupy and use Marsh street for railroad purposes, in the manner it is now used, without objection on the part of the plaintiff, or any attempt to restrain such use, and defendant, its predecessors and grantor, spent large sums of money in tbe construction and maintenance of the railroad therein.

The trial court found, as inferences to be drawn from the facts, stated, that the plaintiff in 1873, for a valuable consideration, gave a license to the Syracuse Northern Railroad Company to use Marsh street for its tracks; that that company, its grantees and successors,, acted under such license and made large extensions to their tracks, at great expense, upon the faith thereof and relying thereon, to the knowledge of the plaintiff; that the ‘ defendant and its predecessors, from the acts and conduct of the plaintiff, liad reason to,, and did, understand and believe, to the knowledge of the plaintiff,, that it consented to and acquiesced in the use made by the defend • ant and its predecessors of Marsh street for railroad purposes, and that in consequence thereof large sums of money were expended by the defendant in the construction of its railroad in Marsh street to the plaintiff’s knowledge.

As conclusions of law the court held that the plaintiff gave the defendant’s predecessor a license to maintain its road in Marsh street, which was acted on by the defendant and its predecessors, and that plaintiff was estopped from denying such license or revoking it; that its acquiescence in the use of Marsh street for seventeen years rendered the plaintiff guilty of such laches as deprived it of the right to maintain this action, and that defendant was entitled to-judgment dismissing the complaint, with costs.

The broad questions presented upon this appeal are, first, whether the court was justified, by the evidence, in finding that the plaintiff’ gave the defendant or its predecessors any such license to enter upon its premises in this street, and lay and maintain its tracks, as was found by the trial court, or as would estop it from claiming its legal rights to the land in question; and, second, whether, by its acquiescence in the use of such land for railroad purposes, it was guilty of such laches as would deprive it of any right to the equitable-relief sought in this action.

The purpose of the action was to restrain the defendant from operating its road upon that portion of Marsh street which was-upon the plaintiff’s premises, until it should acquire the right to the use of the same, and for damages previously sustained by reason of' the defendant’s use and occupation thereof.

It seems to be well settled in this State that the dedication of land to the use of the public as a street or highway, does not preclude the owner in fee, subject to the public easement, from maintaining an action against a railroad, which, without his consent or an appraisal of his damages, enters upon and occupies such highway with the track of its road. Such an appropriation of the highway by the railroad company is the imposition of an additional burden upon, and a taking of, the property of the owner of the fee, within the meaning of the constitutional provision which forbids such taking without compensation. (Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; Mahon v. N. Y. C. R. R. Co., 24 id., 658; Wager v. Troy Union R. R. Co., 25 id., 526; Craig v. Rochester City and B. R. R. Co., 39 id., 404; Henderson v. N. Y. C. R. R. Co., 78 id., 423.) Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, it would seem, has three remedies: (1.) He may bring successive suits to recover his damages. (2.) He may bring an action in equity to restrain the operation of the road, or (3), when the highway has been exclusively appropriated, he may maintain ejectment. (Uline v. N. Y. C. and H. R. R. R. Co., 101 N. Y., 98.) That in cases like this, a suit in equity may be maintained to restrain the defendant from unlawfully using the plaintiff’s land, and for damages sustained by such use, is well established by the authorities in this State. (Henderson v. N. Y. C. R. R. Co , 78 N. Y., 423; Murdock v. Prospect Park and C. I. R. R. Co , 73 id., 579; Shepard v. Manhattan R. Co.. 117 id., 442; Galway v. M. E. R. Co., 128 id.., 132; Lynch v. M. E. R. Co., 129 id., 274.)

It follows, therefore, that the plaintiff was entitled to the relief sought, and the court erred in dismissing the complaint, unless the plaintiff was estopped from enforcing its right against the defendant, or its acquiescence in the taking and occupation of the land by the defendant and its predecessors, and its laches, in not before asserting its rights, have deprived the plaintiff of the right to maintain this suit. This leads to the consideration of those questions.

Did the plaintiff perform, or omit to perform, any act which estopped it from asserting its right as against the defendant or those whose interest it represents ? That the owner of real property may, by a course of conduct which induces other persons to deal with it without informing them of his claim, debar himself from asserting his title to their injury, is a well-established principle of the law of estoppel. In Wendell v. Van Rensselaer (1 Johns. Ch., 344) Chancellor Kent said: “ There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares that, if one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.”

In the late case of Trustees, etc. v. Smith (118 N. Y., 641) it is said: The general rule deduced from all the authorities is, that if one is induced to purchase land by the acts or representations of another designed to influence his conduct, and creating a reasonable belief on his part under which he acts that he is thereby acquiring a valid title to the same, the party who has thus influenced him is estopped from setting up his own title, existing at the time of the purchase, against that of the purchaser.”

To authorize the finding uf an estoppel in pais, against the legal owner of land, there must be shown, we think, either actual fraud or fault or negligence, equivalent to fi-aud on his part, in concealing his title; or that he was silent when the circumstances would impel an honest man to spieak; or such actual intervention on his part as to render it just, that, as between him and the party acting upon his suggestion, he should bear the loss.” (Andebws, J., in Trenton Banking Co. v. Duncan, 86 N. Y., 230.)

“ The vital principle (of the doctrine of estoppel in pais) is that he who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both. * * * No estoppel can be created by mere silence or acquiescence, unless there are some special circumstances which make it necessary to speak. * * * The true rule seems to be. and with it sues the later and better considered cases, that the mere presence of the owner, if he have concealed no fact of which he was informed, and which the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale. * * * One essential element of every equitable estoppel, by which a man is to be precluded from claiming what is his own, is ignorance on the part of the purchaser or party claiming the benefit of the estoppel, as to the true state of the title. To estop a vendor of real estate, by statements in regard to the effect of his deed or extent of the grant, such ignorance, on the part of the purchaser, must concur with knowlege of his title and willful concealment or misrepresentation in regard to it, on the part of the vendor, or such gross negligence or indifference to the rights of others as, under the circumstances, to be equivalent to actual and premeditated fraud. It must also appear that the language or conduct of such vendor was the direct inducement to the purchase by the other party, and that the purchaser will suffer if the vendor is permitted to deny it.” (Herman on Estoppel, §§ 934, 937, 947, 949.)

In the present case we find no sufficient evidence to justify the finding that the plaintiff gave the defendant, or its predecessor, any express license to enter upon or construct its road over the lands in question. Nor do we think any such license is to be presumed or implied. It must be assumed, therefore, that the defendant’s predecessor entered upon the premises in question without authority, and was a trespasser in so doing. While it was thus in possession, it gave a mortgage upon all the property and franchises owned by it. That the mortgage, in fact, covered the land in question is not pretended, unless it was included therein by reason of the maps made by that company and filed June 12, 1871, and August 5,1872. All that appeared from those maps was that the line of the railroad in question was laid through Marsh street. We can find in them no evidence that the company had acquired, or even believed it had acquired, the title to the plaintiff’s land over which the tracks were laid, or from which the purchaser, at the mortgage sale, was justified in believing that the title was in the company, while the record disclosed that it was in the plaintiff. The record was constructive notice to the purchaser of plaintiff’s title, especially as the mortgage referred to the maps, deeds and orders to show what title the railroad company had. Surely no title could be claimed from the mere fact that it appeared upon a map that the railroad was laid on the plaintiff’s land, with no evidence or claim that it had been otherwise acquired. It is, therefore, difficult to see how the purchaser, under that mortgage, could have supposed or believed that he acquired any title, other than that which had been actually conveyed to or acquired by the railroad company that executed the mortgage.

It is, however, claimed by the respondent that, although the railroad company was a trespasser, and the purchaser under the foreclosure sale acquired no legal title by such purchase, still, the plaintiff is estopped from asserting its legal title against the defendant, because the plaintiff’s officers knew of the foreclosure proceedings at the time, knew that the judgment embraced all the property owned by the railroad company, knew the time and place of the sale, and that all the property of the railroad company was sold under such judgment, but made no claim and gave no notice of plaintiff’s title to the land until about the time of the commencement of this action. Also, because the defendant was a purchaser for value and had sold its bonds and stock to "bona fide holders, who had no knowledge of any defect in the defendant’s title to these premises.

There was, however, no proof that any of the plaintiff’s officers attended the foreclosure sale, or that they knew or understood that either the railroad company or the purchaser was led to believe or believed that the property sold included the right of way over the plaintiff’s land. Neither was there any proof that any representation whatever as to such right was made, or that the company sold' or offered for sale any property or interest save that which was owned by it, or to which it had acquired title by deed, purchase or' condeinnation. Nor was there any evidence tending to show that, the purchaser was in any way deceived or mistaken, or that he did not acquire all the title he supposed he would under such sale, or' was not fully apprised of the facts as to plaintiff’s title, or that he relied upon any statement made, or upon the omission of-the plaintiff' to assei’t its title in making such purchase.

Under these circumstances we think it cannot properly be held that the plaintiff was estopped by the transactions attending the mortgage, its foreclosure and the sale under it, from asserting its. title to the land in question against tbe defendant or any persons that it represents as holders of its bonds or stock.

In New York Rubber Company v. Rothery (107 N. Y., 310) a riparian owner saw the owner on the opposite side of the stream erecting a factory and digging a race, which she knew would return the water, diverted from the stream, to a point below her land, and it was held that her omission to object in any way to the proposed diversion of the water did not constitute an estoppel barring an action to recover for such diversion, and the court said: To constitute it the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or omission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct. In cases of silence there must be not only the right, but the duty to speak before a failure so to do can estop the owner.”

The same doctrine was considered in the case of Viele v. Judson (82 N. Y., 32), where it was held that to sustain an estoppel because •of omission to speak, there must be both the specific opportunity and the apparent duty to speak. The party maintaining silence must have known that some one was relying thereon and was either acting or about to act as he would not have done if the truth had been told.

A similar question arose in the case of Leonard v. Spencer (108 N. Y., 338). In that case, it was held that the fact that a dam had been maintained a great number of years, and that, with the knowledge of the plaintiff, and without objection on his part, the defendants had erected a large factory, in place of a former one destroyed by fire, to be, and which was operated by the water drawn from the pond, was not such an acquiescence on his part as precluded him from maintaining the action, at least, in the absence of evidence, that defendants took some action in reliance upon the silence or acquiescence of the plaintiff.

So, in the case of Chapman v. City of Rochester (110 N. Y., 273), where the defendant constructed a series of sewers which discharged into a creek above the plaintiff’s land, without objection from the plaintiff while the work was progressing; in an action to enjoin tbe city from polluting tbe stream, it was beld, that in tbe absence of proof, that tbe plaintiff encouraged tbe adoption by tbe defendant of its system of sewerage, or by any act or word induced it to so direct tbe sewers that tbe flow from them should reacli his premises, plaintiff was not estopped by acquiescence.

In discussing tbe doctrine of estoppel in Thompson v. Simpson (128 N. Y., 291), Andrews, J., says: “ Tbe owner of property which another has assumed to convey without authority, is not precluded, by mere silence, from subsequently claiming it. There must, in addition, have been both an occasion and a duty to speak, and it must appear that tbe omission to speak, upon opportunity being presented, was intentional, or in negligent disregard of tbe plain dictates of conscience and justice. * * * Tbe mere fact that another may act to bis prejudice, if tbe true state of things is not disclosed, does not render silence culpable, and mere inaction in such a case is not sufficient. The true owner owes no duty of active diligence to protect tbe other party from injury. There must be a standing by and encouragement, or, at least, an acquiescence on tbe part of tbe true owner in acts inconsistent with bis right, knowing that tbe other party, acting under a false impression, is about to do what will result in his injury. * * * The security of legal titles to real property, and the uniform policy of tbe law, require that tbe doctrine of equitable estoppel, when invoked to bar the assertion of a legal title to land, should be cautiously ap23lied and only when the grounds for its application are clearly and satisfactorily established.”

Nor do we think the plaintiff was estopped, from asserting its title to the land owned by it in Marsh street by reason of its sale to the defendant’s predecessor of an adjacent piece to enable it to extend its tracks to other portions of the city. The only fact shown in relation to the transaction, except the transfer of the land by plaintiff, and the use made of it by the purchaser, is that the plaintiff knew when the purchase was made that the purchaser intended to build a railroad across it. This was conpeded. These facts are*not, we think, sufficient to estop the plaintiff from asserting its title to its lands in Marsh street.

If it be admitted that the land was purchased for the purpose of the extension of the railroad through Franklin street to the tracks of the New York Central and Hudson River Railroad Company, and that the extension would be useless unless the tracks in Marsh street could be used, yet we do not perceive how those facts would estop the plaintiff from claiming its title to its land in Marsh street. Surely the corporation making that purchase knew as well as the plaintiff that it had acquired no right to the land in question by condemnation or otherwise. No representations were shown to have been made, and the plaintiff’s silence could not have in any way misled the purchaser. It could have condemned the plaintiff’s land then as it can now. We are unable to discover any principle upon which it can be held that the purchase of this adjacent property in any way estopped the plaintiff from asserting its right to the property in question, nor do we find anything in the authorities cited that would sustain that claim. Hence, we conclude that the plaintiff neither did nor omitted any act which estopped it from asserting its right to the property in question as against the defendant, or those whom it represents.

The respondent seeks to uphold the judgment in this case upon the principle that where a party, for a valuable consideration, grants to another a license to make partial use of his land, under circumstances amounting to an implied contract for an easement, and such license is executed, and large sums expended by the licensee upon the faith and credit thereof, to the knowledge of the licensor, and such use continued without opposition for a long period of time on his part, the latter is estopped from asserting his rights by a suit in equity, and cites, as sustaining this doctrine, the cases of Wiseman v. Lucksinger (84 N. Y., 41), Cronkhite v. Cronkhite (94 id., 323) and various authorities in foreign jurisdictions. The cases in this State do not, we think, uphold the decision and judgment of the court below. An examination of those cases discloses that no such license or estoppel will be held to exist, except under circumstances which would make the assertion of a legal title operate as a fraud upon the persons claiming under suqh license or estoppel. The question presented by this contention of the respondent is .controlled by the doctrine of equitable estoppel, and as we have already examined that doctrine, so far as it is applicable to the facts in this case, any further consideration of it seems unnecessary.

This brings us to the consideration of the question whether the plaintiff has lost its right to maintain this action by its acquiesence in the use of the land in question by the defendant and its predecessors and its laches in not sooner asserting its rights. The opinion of the trial judge renders it manifest that the ground upon which it was held that the plaintiff could not maintain this action was that the relief asked for was purely equitable and not in aid of or to enforce a legal right. It must be regarded as settled in this State that the doctrine of acquiesence or laches, as a defense to an equity action, is limited to actions of an equitable nature exclusively, or to those where the legal right has expired or the party has lost his right of property by prescription or adverse possession, and that where a legal right is involved, and upon grounds of equity jurisdiction the courts have been called upon to sustain the legal right, the mere laches of a party, unaccompanied by circumstances amounting to an estoppel, constitute no defense. (Galway v. M. E. R. Co., 128 N. Y., 132.) The same doctrine is also recognized in Calhoun v. Millard (121 N. Y., 69); Fullwood v.. Fullwood (L. R., 9 Ch. Div., 176); In re Baker (L. R., 20 id., 230).

"We cannot agree with the learned trial judge in his conclusion that this suit was exclusively equitable in its nature. The action was to enforce the existing legal rights of the plaintiff, which had neither expired nor been lost by prescription or adverse possession. The relief sought by “the injunction of a court of equity and its alternative damages are to be deemed a substitute for the ordinary proceedings for condemnation with the practical difference only that in one case the company is the moving party and in the other the owner.” (Finch, J., in American B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y., 270.) "We think the plaintiff’s legal rights were clearly involved in this action, and that the more acquiesence or laches of the plaintiff, not amounting, to an estoppel, constitute no defense.

These considerations lead to the conclusion that the trial court erred in dismissing the plaintiff’s complaint, and that the judgment appealed from should be reversed.

HaediN, P. J., and MebwiN, J., concurred.

Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: MaetiN, J.: Harden, P. J.: MerwiN, J. :

license: Public Domain

text:
    JACKSON MONTGOMERY, as Sole Overseer of the Poor of the Town of Spencer, ex rel. SEYMOUR SEELEY and HORACE A. HUGG, Appellants, v. MARCELLUS E. O’DELL, Respondent.

      Town election — ballot law of 1890 {chap. 262) — excise commissioner — separate ballot — m/yre names on ballot than vacancies in office — paster on general ballot — only one valid ballot cast — officer de facto and de jure — liquor license — action for penalties — time of meeting of board to grant licenses.

    When the number of persons to be elected to an office is limited as, e. g., one incumbent to each office, a ballot, containing more names than the one limited, is inoperative as to the office named.
    Hence, where, at an annual town meeting, there was only one vacancy in the office of excise'commissioner to be filled, but three names were placed on the tickets of each of the two political parties, and all three names on the tickets cast by the majority received the same number of votes, and the inspectors of election having canvassed the votes, made a statement, as their certificate of election, showing the total number of votes cast for commissioners of excise, the number received by each of the six candidates whose names were on the ballots, and stating, “ on motion it was voted that all the candidates having the greatest number of votes set opposite their respective names was declared duly elected to the several offices herein named:”

      Held, that, as all the candidates for the office of commissioner of excise on the ticket receiving the most votes received an equal number of votes, no one of the three was, in fact, elected, or declared elected, to the single vacancy to be filled.

      Semble, that ballots, cast at an annual town meeting, containing only the names of candidates for excise commissioners, separate from the ballots containing the names of the candidates for the other town offices, and deposited in a different box from that in which the ballots for the other town offices were deposited, should not be counted under the ballot law of 1890 (chap. 262), which required that all the names of candidates for town offices, including commissioners of excise, should be upon one ballot, and that all ballots cast should be deposited in one box.
    At the same annual town meeting, which was regularly held while the ballot law of 1890 was in operation, and at which one commissioner of excise was to be elected, there was a ballot containing the names of all the candidates for election, except commissioner of excise, printed and furnished by the town clerk and treated as an official ballot by the electors, but there had been no certificate of nomination of candidates for the -various offices filed as required by the statute; one elector pasted on such general ballot a ballot containing only a single name for commissioner of excise, and voted it, and this was the only ballot cast containing but one name for commissioner of excise.

      Meld, that the ballot so used and treated as an official ballot should be regarded as valid, although an unofficial ballot under section 21 of the act of 1890.
    That the ballot which was pasted thereon was valid.

      Semble, that the person named thereon was, in fact, thereby elected commissioner of excise.
    That while the person so voted for might not become commissioner de jure without a certificate of election, still, as the inspectors failed to certify the election of any person to that office, his election by such single ballot was sufficient to give him an apparent authority or color of title to the office.
    The person, Shepard, so elected by the single ballot, and Hugg, one of the persons named on the separate excise commissioner ballots containing three names each cast by the majority of the electors, subsequently attended meetings of the board of excise commissioners, each claiming the office.

      Meld, that as the defect in Hugg’s title was notorious, and persons dealing with him must have had notice of the facts, it could not be deemed that he was in apparent possession of the office or ostensibly exercising its functions lawfully or with the acquiescence of the public, and, therefore, that the claim tlijit he was a commissioner defacto, so that Shepard could not be treated as a commissioner dejv/re or die facto could not be sustained.
    Shepard was a properly elected commissioner of excise, and holding his office as such when the town meeting was held, the election for commissioner of excise thereat being to fill the vacancy on the expiration of his term, which expired on the day of the meeting.

      Meld,, that if Shepard was not elected at said town meeting, still, by virtue of the statute then applicable (2 R. S. [8th ed.], p. 892, § 30), he was entitled to hold the office until his successor was chosen or appointed and qualified.
    Therefore, that a license to sell intoxicating liquors, granted by the board of excise commissioners after said annual town meeting, was not invalid by reason of the fact that Shepard participated, as a commissioner, in granting it.
    That the defendant, in an action for penalties for selling liquor without a license, was entitled to show that Shepard was one of the commissioners of the town at the time the license was granted, and that, having shown that fact, the license in (Question was available as a justification.

      Seinble, that the provision of section 3 of chapter 175 of the Laws of 1870, as amended by chapter 161 of the Laws of 1890, that “ the commissioners of excise shall meet * * * on the first Monday of May, in each year, for the purpose of granting licenses as provided by law, and at no other time for that purpose, except upon application for licenses made in good faith in any town or village, and in such case not oftener than once in each month,” is not to be construed as rendering a license void if granted at any other time than that mentioned in the statute, and does not require the court to hold a license invalid because granted subsequent to the first meeting of the board, and within a month from that time.
    If necessary, in order to uphold a license, it may be presumed, in the absence of proof sufficient to overcome the presumption, that the board of excise commissioners, having properly met at the time provided by the statute, adjourned from time to time until the day when the license was granted.

      Appeal by tbe relators from a judgment of tbe Supreme Court dismissing tbe complaint, entered in tbe Tioga county clerk’s office July 9, 1892, on tbe decision of tbe court at the Tioga circuit a jury trial having been duly waived.
    Briefly stated, tbe findings of tbe trial court were: That the plaintiff was overseer of tbe poor; that tbe relators were authorized to prosecute this action in bis name; that John Q. Shepard was a member of tbe board of commissioners of excise prior to February 10, 1891, and that bis term of office expired on that day; that Robert Fisher was a member of tbe board and bis term of office expired February 9, 1892; that Seymour Seeley was a member of tbe board, and bis term of office will expire February 7,1893; that Horace A. Hugg was a candidate for tbe office of excise commissioner to fill a vacancy caused by tbe expiration of tbe term of office of John Q. Shepard; that John Q. Shepard was also a candidate for re-election to fill tbe same vacancy; that there was but one commissioner of excise to be elected; that a large number of ballots for commissioners of excise was cast on which were printed tbe names of three candidates; that upon one ballot two names were struck off, leaving John Q. Shepard tbe only candidate voted for by tbe elector who cast tbe same; that by that ballot Shepard was elected excise commissioner of tbe town to succeed himself; that before the 13th of May, 1891, Shepard took tbe required oath of office, qualified and entered upon its duties; that the board of excise commissioners was duly organized May 4, 1891, by tbe election of Robert Fisher as chairman and Seymour Seeley as secretary; that Horace A. Hugg was present and assumed to participate in tbe proceedings of tbe board as a member, and at tbe same time John Q. Shepard was present and participated in tbe proceedings of tbe board as a member thereof; that on May twelfth tbe board of excise consisted of Fisher, Seeley and Shepard, and on that day at a meeting duly held the board granted tbe defendant a license authorizing him for one year from that time to sell strong and spirituous liquors in quantities less than five gallons at a time, which license was in tbe usual f orm and was signed by Robert Fisher and John Shepard who voted for the same; that tbe only ballots cast for Horace A. Hugg were those upon which the names of three candidates were printed for excise commissioner, of which his was one ; that within the time specified in such license the defendant sold strong and spirituous liquors to at least ten different persons.
    As conclusions of law the court held that the defendant was entitled to a judgment in his favor, dismissing the complaint upon the merits, with costs, and directed judgment accordingly.

      W. Martin Jones, for the appellants.

      E. E. Dean and 8. D. EalUday, for the respondent.
   MaetiN, J.:

This action was brought in the name of the overseer of the poor of the town of Spencer, to recover of the defendant a number of penalties for the sale of intoxicating liquors without having a license therefor. That it was properly brought in the name of the overseer is not questioned. Neither is it denied that defendant sold intoxicating liquors at the times proved and found by the court. It was conceded that at least ten sales were made. The defendant justified under a license which he claimed was granted to him by a majority of the commissioners of excise of the town of Sj>encer, where he lived and where the sales were made.

The main controversy arises over the question whether John Q. Shepard, one of the persons who signed defendant’s license, was then a commissioner of excise of that town. That he had been prior to the 10th day of February, 1891, is not disputed. But his term o£ office, under his previous election, expired on that day, unless he held over, because no person was elected to fill his place. The annual town meeting was held February 10, 1891. There was but one vacancy in the office of commissioner of excise, yet three persons were placed on the tickets of. each party, and were voted for by all of the electors who voted at that election except one. No certificate of nomination was made, or certified to, as required by statute. None of the electors were entitled to vote for more than one commissioner. The names of the persons who were candidates for the office of commissioner were placed upon separate tickets, and the ballots were deposited in a ballot-box separate from that in which the ballots for other town officers were dejmsited, except those which will be hereafter considered.

The manner of preparing the ballots and conducting this election was in direct conflict with many of the requirements of the ballot law. (Laws of 1890, chap. 262.) In People ex rel. Sherman v. Person (19 N. Y. Supp., 297, affirmed, 32 N. E. Rep., 645), under chapter 296 of the Laws of 1891, which provides that ballots for commissioners of excise shall be separate from ballots for other town offices and deposited in separate boxes, it was held that ballots for town officers found on ballots indorsed excise,” and in the excise or town ballot-box, should not be counted. As the statute of 1890, which was in operation when this town meeting was held, required that all the names of candidates for town offices, including commissioners of excise, should be upon one ballot, and that all the ballots cast should be deposited in one box, it would seem that the ballots other than those containing the names of the town officers, or that were deposited in any box except that in which the ballots for town officers were deposited, should not have been counted. If, as held in the Person case, ballots that contained the names of town officers, other than commissioners, affixed to an excise ballot, and deposited in the' excise or town box, should not be counted, because the statute, as it then stood, required them to be upon separate tickets and to be deposited in separate boxes, we can perceive no good reason why the converse of that proposition is not equally true; nor why, where the ballots are required by the statute to contain the names of the candidates for all the town officers to be elected, and to be deposited in one box, the ballots deposited in another containing only the names of commissioners of excise should not also be rejected. We think the principle of that case controls this question, and that all the ballots deposited in the box, other than that which was authorized, should have been rejected.

The three persons whose names were placed on what was known as the no-license ticket each received 295 votes, while those placed upon the license ballot each received only 195 votes. When the votes were canvassed the inspectors made a statement showing the total number of votes cast for commissioners of excise, the number received by each of the six candidates whose names were on the ballots voted, and then added : “ On motion it was voted that all the candidates having the greatest number of votes set opposite their respective names, was declared duly elected to the several offices herein named.” No other certificate was made by the inspectors. Therefore, as all the candidates for commissioners on the ticket receiving the most votes received an equal number, they were all declared elected and no one of the three was elected or declared by the inspectors to have been elected to fill the vacancy which occurred by the expiration of Shepard’s term. “While if one of two candidates for an office is ineligible, tlie one who is eligible, receiving a minority of the votes, is not thereby elected, unless his opponent’s disqualification was known to the electors (People ex rel. Furman v. Clute, 50 N. Y., 451; People ex rel. Sherwood v. Board of Canvassers, 129 id., 374), still, it is obvious that when the number of persons to be elected to an office is limited, as one incumbent to each office, a ballot containing more names than the number limited, must be inoperative as to the office named. The very purpose of voting is that the voter may exercise his choice, and when he names more than the limited number, it is impossible to determine which of the number he prefers. Thus, where, at an annual town meeting the electors limited the number of constables to be chosen to four, it was held that ballots containing more than four persons, designated as voted for, for that office could not be canvassed, but must be rejected (People ex rel. Swan v. Loomis, 8 Wend., 396), and if a ballot for one office has two names upon it, it cannot be sustained by proof that the voter intended to cast his vote for one of the persons named. (People ex rel. Eastman v. Seaman, 5 Den., 409.) It has also been held that where but one person can be elected to an office, and three persons are named on the same ballot for such office, the ballot is void. (People ex rel. Hovey v. Ames, 19 How. Pr., 551.) Indeed, it does not seem to be seriously claimed by the appellants that any of the persons named on those ballots was, in fact, elected.

The appellants’ claim is, that the certificate of the inspectors gave Horace A. Hugg, one of the persons whose names appeared on the no-license ballots, apparent authority or color of title to act as such commissioner, and, hence, he became a commissioner defacto upon qualifying and acting as such, and that he being a commissioner defacto to fill the vacancy caused by the expiration of Shepard’s term, he was the only commissioner who could fill that vacancy, and Shepard was neither commissioner de jure nor defacto.

It is somewhat difficult to see how this contention can be upheld, especially in view of the fact that Hugg’s title to the office was not recognized or continued for such a time as to justify third persons in believing that he was such officer. There was no certificate by the inspectors indicating that Hugg was elected any more than the two other persons on the same ballot. The certificate was to the effect that all were elected. No one was certified to have been elected to fill the vacancy caused by the expiration of Shepard’s term. If Hugg had apparent authority or color of title, so did the other two, so far as the election or the certificate of the inspectors was concerned.

The court has found, upon evidence sufficient to justify it, that at the first meeting of the commissioners both Shepard and Hugg were present and participated in the proceedings of the board, and that Shepard participated in all their subsequent proceedings down to the time when the license to the defendant was granted.

It is true that when there is but one office, there can be neither a dejv/re and defacto officer in possession of the same office at the same time, nor two different officers defacto, in possession of an office for which one incumbent only is provided by law. (Mechem on Public Officers, §§ 322, 323, and cases cited.) It is also true, that “ Third persons who have occasion to deal with a public officer, and to rely upon his acts, finding a person in the apparent possession of the office, and ostensibly exercising its functions lawfully, and with the acquiescence of the public, can neither be expected to know nor to investigate, in every instance, his title to the office or his eligibility to election to it. As to them, he must be held to be, what he appears to be, the lawful occupant of the office. This rule is demanded by public policy as the only one affording protection to the public. * * * So the rule cannot apply where the defects in the title of the assumed officer are notorious, and the persons dealing with him have notice of the facts.” (Mechem on Public Officers, § 328, and cases cited.)

But, in the present case, we do not find any evidence to show that Hugg was in the apparent possession of the office, or ostensibly exercising its functions lawfully, or with the acquiescence of the public. As both Hugg and Shepard were present at the meetings of the board, and each claiming the office, the defect in Hugg’s title was notorious, and persons dealing with him must have had notice of the facts.

We are of tbe opinion that Hngg was neither commissioner defacto nor dejure, and that- the appellants’ claim that he was commissioner defacto so that Shepard could not be treated as a commissioner de ju/re or defacto, cannot be sustained.

This brings us to the consideration of the question as to what power or authority Shepard had to exercise the rights and perform the duties of such office. The court found that one ballot was cast for Shepard which was pasted on the regular town meeting ballot, and contained only the name of Shepard for excise commissioner, the names of the other persons for excise commissioner having been struck off. This finding was, we think, justified by the evidence. The court also found that, as this was the only ballot that was regular, Shepard was elected. That a town meeting was lawfully held at that time, and that a commissioner of excise was to be elected at such town meeting, there is no doubt. Therefore, this case does not fall within the principle of the case of the People ex rel. Fowler v Bull (46 N. Y., 67), as in that case it was held that it was not lawful to hold an election at the time to elect a candidate for the office claimed by the relator.

It seems to be settled that such a ballot would be valid when affixed to the regular official ballot, whether the candidate was regularly nominated or not, and although the statute forbids the cleric to put any name on the official ballot, except those nominated and certified as having been made by a political convention or by the certificate mentioned in section 5 of that act. (Laws of 1890, chap. 262, § 17.) In People ex rel. Bradley v. Shaw (31 N. E. Rep., 512) it was said: “ The first objection — that the relators having failed to receive a proper nomination by a political party which, at the last election before the holding of the convention or primary meeting, polled at least one per centum of the entire vote cast in that political division of the State for which the nomination is made — is wholly unsound and without force. The plan contained in sections 1, 2 and 3 of the ballot reform act (Laws of 1890, chap. 262) was a provision for the printing of an official ballot at the public expense ; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose is evident from the further provisions of the law (§ 25) that £ the voter-may write or paste upon bis ballot the name of any person for whom be desires to vote for any office.’ Indeed, to bold otherwise would be to disfranchise or to disqualify the citizen as a voter or a candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such respects.”

The only other paster ballots found by the inspectors contained the names of three persons for one office and were clearly irregular. ITence it would seem that if any commissioner of excise was elected at that town meeting, it was Shepard, and that he was elected unless it can be held that there was no official ballot upon which a paster might be placed. In Commonwealth ex rel. Clark v. Read (2 Ashm., 261), where, to authorize the county board to proceed to the election of a treasurer, it was necessary that at least eleven members of the twenty comprising it should be present, it was held that, if a majority of those present either refused to vote, or voted in a manner different from that prescribed by law, a minority composed of a single member was sufficient to make an election.

As we have already seen, there was no certificate of the nomination of candidates, for the various officers to be voted for, filed with the clerk, as required, by the statute. There was, however, a printed ballot containing all the names of the candidates to be elected at such town meeting, except a commissioner of excise. As the ballots thus printed and furnished by him were used and treated as an. official ballot by the electors of the town, we are disposed to think that it should be regarded and treated as valid, although an unofficial ballot such as is provided for by section 21, and that it should be held that the vote for Shepard, which was pasted upon such a ballot, was valid and that he was, in fact, elected as such commissioner of excise. If it be said that this conclusion defeats the will of a majority of the electors of the town, the answer is two-fold: (1.) That only one of the electors has by his vote expressed his choice. The fact that the other electors have, by their votes, indicated that they did not desire the election of the person thus voted for without voting for any other one person to take his place, was of no avail. (2.) The statute in plain and positive terms provided how the choice of an officer by the electors should be made, and as the statute was not even substantially complied with, the ballots thus cast were void, although the result may have defeated the intent of a majority of the electors. (People ex rel. Nichols v. Board of Canvassers, 129 N. Y., 395.)

It was by virtue of this election that Shepard claimed to act as commissioner of excise for the town. "While it may be that he would not become such commissioner de jure without a certificate from the inspectors showing his election to such office, still, as the inspectors failed to certify the election 'of any person to fill the office, it was, we think, sufficient to give him an apparent authority or color of title to such office.

Moreover, Shepard was the properly elected commissioner, and holding his office as such, when the town meeting in question was held. If, therefore, neither Ilugg nor Shepard was elected, the question is presented whether the office became vacant, or whether Shepard held over until his successor was elected and had qualified. As the law now stands, there would be no question. Chapter 569, Laws of 1890, section 12, provides: All such officers (being the various town officers, including commissioners of excise), except justice of the peace, shall hold their respective offices until others are elected or appointed in their places and have qualified.” This statute did not, however, go into effect until March 1, 1891. (See § 243.) But before the adoption of this statute the Revised Statutes provided : Town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified. (2 R. S. [8th ed.], 892, § 30.)

It seems to have long been the policy of the law in this State, that all town officers, except perhaps those that were stictly judicial, should hold their respective offices until successors should be chosen and qualified. That commissioners of excise elected in pursuance of the provisions of chapter 444 of the Laws of 1874, are town officers we have no doubt. The first section of that statute recognizes them as such. It provides that they shall be elected as other town officers are elected, thus showing that they were to become town officers when elected. Being town officers the question is whether the provisions of the Revised Statutes apply to them. It will be observed that this statute provides two things: (1.) That town officers shall hold their offices for one year; and (2), that they shall hold their offices until others have been chosen and qualified. The term of office of commissioners of excise having been established at three years, it modified the statute so far as the term of office of commissioners. was concerned, but, we think, did not affect the remainder of that statute, which provided that town officers should hold their offices until others were chosen or appointed and qualified.

We are, therefore, of the opinion that if Shepard was not elected, still, by virtue of the provisions of the Revised Statutes cited, he was entitled to hold the office until his successor was chosen or appointed and qualified, and that the trial justice was justified in holding that he was a commissioner of excise.

It is, however, contended by the appellants that in a collateral proceeding the court has no jurisdiction to change the declaration of the board of town canvassers and declare a candidate elected when the board has declared him defeated. We do not see how this contention has any application to this case. For, as we have already seen, the town canvassers failed to declare any candidate elected to fill the vacancy caused by the expiration of Shepard’s term. It was said by Danforth, J., in Cronin v. Stoddard (97 N. Y., 271), that “one who desires to enjoy the privileges affords 5 by the act under which the proceedings in question were had (Laws 1857, chap. 628) must see to it that they are granted by one duly authorized, or submit to the penalty prescribed.” Thus it would seem that the burden is cast upon the person holding the license of establishing the fact that persons who sign a license to sell intoxicating liquors under the provisions of that statute are commissioners of excise and authorized to grant the same. Assuming that this burden was cast upon the defendant, we think it cannot be properly claimed that he should be debarred from showing that the persons signing his license were, in fact, authorized to grant it, especially where, as in this case, there was no certificate or statement by the town canvassers which declared any person elected to fill the office. We think the defendant was properly permitted to show that Shepard was one of the commissioners of excise of the town of Spencer, and having shown that fact that the license held by the defendant was a justification, and that the court properly disposed of the case on the trial, unless for some other reason the license granted was void.

The only other ground upon which the defendant’s license is claimed to he invalid is, that it was granted on the twelfth day of May, after tbe commissioners bad already met on tbe fourth and sixth days of that month. The statute regulating the sale of intoxicating liquors provides: “ The commissioners of excise shall meet * * * on the first Monday in May in each year for the purpose of granting licenses as provided by law and at no other time for that purpose, except upon application for licenses made in good faith in any town or village, and in such case not oftener than once in each month.” (Laws of 1870, chap. 175, § 3, amended by Laws of 1890, chap. 161.)

An examination of the statutes relating to this subject as they have existed since 1857 discloses that the legislature, by each of the statutes passed during that time, has sought to limit the time during which the commissioners should sit for the purpose of granting licenses. By the statutes of 1857 and 1870 they were permitted to sit only ten days in each year. By the statute of 1890 the law was changed so that there was no positive limitation as to the number of days they should be employed in granting licenses, but, instead, it provided that they should meet for that purpose on a day named and at no other time, except upon application for licenses, and then not oftener than once in each month. The purpose of this provision was, we think, to limit the time which commissioners should devote to the granting of licenses, and thus lessen the expenses of the towns, and not to entrap applicants for license whose license should be issued on some day other than that mentioned in the statute into a course of action by which they would incur penalties to a ruinous extent. "We think this statute, so far as it relates to the time when licenses are to be issued, should be construed as directory. It is a general rule applicable to the construction of statutes, that provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory, unless the nature of the act to be performed or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officers. (People v. Allen, 6 Wend., 486 ; Gale v. Mead, 2 Denio, 160 ; People ex rel. Knox v. Village of Yonkers, 39 Barb., 266; Dawson v. People, 25 N. Y., 399 ; Witheril v. Mosher, 9 Hun, 412; Rawson v. Van Riper, 1 T. & C., 370: Matter of Broadway Widening, 63 Barb., 572 ; Metcalf v. Mayor, etc., of New York, 17 N. Y. St. Rep. 97.)

In this case, the nature of the act to be performed by the commissioners was not of a character indicating that time should be considered as a limitation of their power. Nor do we think that the language of the statute was intended to limit the power of the commissioners to the times mentioned. "While this question may not be wholly free from doubt, yet, we cannot think it was the purpose of this statute to render the acts of the commissioners void for want of power, if performed at any other than the time mentioned in the statute, but that its purpose was to limit the time they should devote to the granting of such licenses, so far as consistent with the duties to be performed by such officers. Such a construction, we think, accomplishes the purpose of the statute, and avoids a construction which would render it a delusion and a snare to the unwary recipient of a license. That this statute should not be construed so as to produce such a result, unless its plain language requires it, is quite manifest. That law-makers cannot always foresee all the possible applications of the general language they use; and it frequently becomes the duty of the courts, in construing statutes, to limit their operation so that they shall not produce absurd, unjust or inconvenient results not contemplated or intended. A case may be within the letter of the law, and, yet, not within the intent of the law-makers; and in such a case a limitation or exception must be implied. (Lake Shore and M. S. Ry. v. Roach, 80 N. Y., 339.) "We think the language of this statute, when properly construed, does not require us to hold that defendant’s license was invalid because granted subsequent to the first meeting of the board, and within a month from that time.

If, however, this construction of the statute cannot be sustained, still, there is another ground upon which the validity of the defendant’s license should be upheld. That the commissioners of excise, having properly met at the time provided by the statute, could continue in session or adjourn, from time to time, until the business before them was fully completed, we have no doubt. Therefore, if necessary to uphold this license, we think it should be presumed that the board of commissioners of excise adjourned, from time to time, until the day on which the defendant’s license was granted. The law constantly presumes 'that public officers charged with the performance of official duty have not neglected the same, but have performed it at tlie proper time and in the proper manner. (Mecbem on Public Officers, § 579.) In this case, we fail to find sufficient proof to overcome this presumption. The evidence tends to show that the meeting of the board on the fourth of May was adjourned, and that the meeting held on the sixth was adjourned until the twelfth day of May.

By these considerations we are led to the conclusion that the defendant was justified by his license in making the sales complained of, and that the decision of the trial court should be sustained.

Harden, P. J.:

I think the license was a protection, and the opinion is right, and that the judgment should be affirmed.

MerwiN, J. :

I am inclined to the opinion that Shepard held over ; so I concur in the result.

Judgment affirmed, with costs.


author: MaetiN, J. i

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANKLIN M. SEVERANCE, Appellant.

      False entry in hooks of a hanking corporation —admission of unproved paper— compa/rison of handwritings — -Lawsof 1880, chap. 36 — recross-examination of people’s witness.

    The admission in evidence, against tlie defendant's objection, on tlie trial of an indictment, under section 602 of tlie Penal Code, charging the making of a false entry in a book of account kept by a corporation (a State bank), of a paper purporting to be a verified list of balances on a deposit ledger, which was inadmissible for the reason that no proof had been given that it was made by the defendant or under his direction, cannot be disregarded on appeal as harmless to the defendant, where the effect of the evidence was to show large overdrafts by the defendant and thus prejudice the jury against him, and it was made the basis of evidence which tended to show that the books of the bank were improperly kept, or, if properly kept, that the list introduced was falsely made and verified by the defendant.
    The statute (Laws of 1880, chap. 36), permitting comparison of a disputed writing with a genuine one, gives no authority which will justify a court in allowing a witness to testify to tlie handwriting of a person, when the witness has no knowledge of its genuineness except from having seen a signature that was proved to he genuine.
    It is error to permit a witness, although an expert, who is not qualified to give evidence as to the handwriting of a party, except as he has compared certain writings in dispute with one proved to he genuine, to testify positively that the disputed writings are in the party’s handwriting; his evidence should he confined to a comparison of the handwriting of the genuine paper with the handwriting of the papers in dispute, and to his opinion that they were or were not written hy the same person.
    Where, on the trial of a criminal cause, a witness for the prosecution was examined by the people and cross-examined hy the defendant and left the stand, and afterwards and during the trial the defendant desired to further cross-examine him, hut he was not in court, having returned to his home in a distant town in this State, and the defendant claimed and introduced affidavits to show that at the conclusion of the witness’ examination the defendant’s counsel stated to the district attorney, in the presence of the court, that he desired to further cross-examine the witness, and desired him to remain in attendance for the purpose, and the opposing affidavits were only to the effect that no such notice was heard:

      Held, that, under the circumstances of the case, it being apparent that the cross-examination of the witness might have been important to the defendant after the introduction of other evidence by the people, the trial judge should have permitted the defendant to secure the attendance of the witness for further cross-examination, even if this would have necessitated a brief postponement of the trial.
    Appeal by tbe defendant, Franklin M. Severance, from a judgment of the Court of Sessions of Onondaga county, rendered on the 29th day of June, 1891, upon the conviction of the defendant, by a jury, of the crime of making a false entry in a book of accounts kept by a corporation while an officer thereof, under section 602 of the Penal Code, with notice of an intention to bring up for review, upon such appeal, an order denying the defendant’s motion for a new trial made June 29, 1891.
    Defendant was indicted by a grand jury in the Onondaga Oyer and Terminer on the 21st day of January, 1891. He was arraigned April 6, 1891, in the Court' of Sessions of that county, to which the indictment had been remitted for trial, and pleaded “ not guilty.” The indictment charged the defendant with the crime of making a false entry in a book of accounts kept by a corporation, while being an officer of such corporation, with an intent to defraud. It was alleged in the indictment that the defendant on March 28, 1887, at Fayetteville, while cashier of the Farmers’- Bank of Fayetteville, a corporation duly organized under the laws of the State of New York, with intent to defraud said bank and divers other persons, made and concurred in malting a false entry in a “ tickler,” a book of accounts kept by said bank, and the page containing sucli false entry was set forth at large iii the indictment. The false entry charged was that of entering the figure “ 9 ” in the thousands’ column on one of the pages of the “ tickler.”
    The Farmers’ Bank of Fayetteville was organized under the banking laws of this State in March, 1870. Its capital stock was $100,000. In December, 1877, by proper proceedings, it was reduced to $50,000. In June, 1886, by further proceedings, the stock ivas further reduced to the sum of $25,000. During a period of about sixteen years the bank had transacted a banking business at the village of Fayetteville, but in the following year, after an examination of the affairs of the bank by Oscar F. Richardson, the bank examiner designated for that puipose by the banking department, the bank was dissolved and its affairs wound up in an action brought by the attorney-general for that purpose. The bank was closed on the 30th of May, 1887, and William S. Andrews, of Syracuse, N. Y., was appointed receiver.
    The indictment in this action was not found until about three years and one-lialf afterwards, and after the affairs of the bank had been closed.
    A large amount of evidence was taken on the trial, both documentary and oral, to which there was a great number of exceptions. The trial resulted in a verdict of “ guilty,” and the defendant was sentenced to imprisonment in the State prison, at Auburn, for the period of three years.

      Oeylon H. Lewis, for the appellant.

      Lawrence T. Jones, for the respondent.
   MaetiN, J. i

The principal questions presented on this appeal relate to the rulings of the trial court in the admission and rejection of. evidence. There was a great number of exceptions taken by the defendant. Many of them are not, however, referred to by the appellant in his brief. There are others to which our attention is called that we do not deem of sufficient importance to require any special consid-«ration further than to say that they have been carefully examined, and we do not think they require a reversal of the judgment. After eliminating the two classes of exceptions alluded to, others remain which seem to be valid and to require careful consideration.

On the trial the people were permitted to introduce in evidence a paper, which purported to be a verified statement of balances on deposit ledger “ O ” on the mornings of May 17 and 19, 1887, which ■should have been included in the statement of balances taken from deposit ledger “ B ” by the inspector. ■ The admission of this paper in evidence was objected to by the defendant on the ground that it had not been proved. This objection was overruled, and the defendant duly excepted. The appeal book, which purports to contain all the evidence given on the trial, fails to show that this paper was proved in any manner whatever. "We cannot conceive of any principle of the law of evidence that would justify its admission against the defendant, with no proof whatever that it was made by him or under his direction. ' Although it was claimed by the people that it was made by the defendant, and sent to the witness by him, there was no proof of those facts. ¥e think this paper was clearly inadmissible.

We are also of the opinion that it cannot be held that this error was not prejudicial to the defendant, and should, therefore, be disregarded. The effect of the evidence was to show large over-drafts by the defendant and others, and thus prejudice the jury against the defendant Moreover, it was made the basis of evidence which tended to show that the books of the bank were improperly kept, or if they were properly kept that the list introduced was falsely made and verified by the defendant.

The people also called as a witness one Lawrence W. Myers, who claimed to be an expert both in bookkeeping and as to handwriting. He testified at great length, not only as to the propriety of the manner in which the books of the bank were kept,.but was permitted to testify unqualifiedly that a great many papers and entries in the books were in the handwriting of the defendant, although it was shown by the undisputed evidence that he had never seen the defendant write, and there was in evidence but a single signature that was proved to be that of the defendant.

On the occasions referred, to, of which there was a great number, he was, in substance, asked: “ Is the writing I show you in defendant’s handwriting?” These questions were objected to by the defendant on the ground, among others, that the witness was not qualified to testify on that subject. These objections were overruled, and the defendant duly excepted. The writings were then offered in evidence, without any other proof as to their having been made by the defendant, to which he duly objected, and they were admitted by the trial court under his objection and exception. The propriety of admitting such proof of the defendant’s handwriting, and then admitting in evidence the writing with no other proof of its genuineness, is sharply presented by the various objections and exceptions made and taken by him. Indeed, a large portion of the written evidence received against the defendant was verified in this manner only. The people attempted to justify these rulings under the provisions of the statute which provide that comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of the witnesses respecting the same may be ■ submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. (Laws 1880, chap. 36, § 1.)

It may be observed that this statute only permits a comparison to be made by a witness of a disputed writing with any writing proved to be genuine, and the submission of such writings, and the evidence of such witnesses to the court and jury, as evidence of the genuineness or otherwise, of the writing in dispute. Although this statute permits a comparison of a genuine handwriting of a person with that of a disputed instrument, -we find in it no authority which would justify a court in permitting a witness to testify to the handwriting of a person when he had no knowledge of its genuineness, except from having seen a signature that was proved to be genuine. In this case, the -witness had never seen the defendant write, nor was there any claim that he had ever received documents purporting to be written by defendant in answer to documents written by the witness or under his authority, or that, in the ordinary course of business, documents purporting to be written by the defendant had been habitually submitted to the witness.

As tbis witness was not qualified to give evidence as to the handwriting of the defendant, except as he compared the writings in dispute with the one proved to be genuine, he should not, we think, have been permitted to testify positively, that these different entries and papers were in defendant’s handwriting. Iiis evidence should have been confined to a comparison of the handwriting of the genuine paper with the handwriting of those in dispute, and to his opinion that they were or were not written by the same person. Upon such an examination, the jury would have readily understood that his evidence was confined to a comparison of the writings, and his opinion was based thereon, which would naturally have given it less weight than his positive testimony, when the fact that he had no knowledge of the defendant’s writing, except by such comparison, might have been easily forgotten by the jury. Such proof i^as all that was justified by the statute, and all that should have been allowed. He was also permitted to testify that a paper was in the defendant’s handwriting which was not presented to the court or jury, and which he had not seen since the standard offered in evidence was proved to be genuine, and upon this proof he was then permitted to give secondary evidence of the contents of such paper. We think the admission of this évidence, in the form in which it was given, was error.

Oscar F. Richardson, the bank examiner who examined the Bank of Fayetteville, was called as a witness by the people early in the trial of the case. He was examined by the people, and cross-examined by the defendant, and left the stand. Afterwards, and during the trial, the defendant’s counsel desired to further cross-examine him, but he was not in court, having that morning, or the previous night, returned to his home in the city of Brooklyn. The defendant claims, and has introduced affidavits to show that, at the conclusion of his examination, the defendant’s counsel stated to the district attorney, in the presence of the court, that he desired to further cross-examine this witness, and desired him to remain in attendance for that purpose. The district attorney, and others, made affidavits that they heard no such request or notice from any source. The witness was in the city of Syracuse the night before he was called for further cross-examination, and the defendant’s attorney had reason to believe that he would be present when required, as one of the defendant’s attorneys informed the witness the night before, that they desired to recall him for further cross-examination. The court refused either to delay the trial to enable the defendant to procure the attendance of the witness, or to strike out the evidence that he had already given, on the ground that the defendant had not been permitted to fully cross-examine him. The defendant contends that this was error, and that the court should either have given him an opportunity to procure the attendance of A the witness, or have stricken out the evidence he had already given.

It was said by Folger, J., in Sturm v. Atlantic Mutual Insurance Company (63 N. Y., 81): “ It may be taken as a rule that, where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify, or othbr misconduct of the witness, or by any means other than the act of God, the act of the party himself, or some cause to which he assented, that the testimony given on the examination in chief may not be read.”

It was held in People v. Gole (43 N. Y., 508) that it was error to suffer to go to the jury any evidence given by a witness on direct-examination by the people, where, by sudden illness, or by the death of such witness, or other cause without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination.

In Sheffield v. Rensselaer and Saratoga Railroad Company (21 Barb., 339), where, on the trial, tlie plaintiff’s counsel, before dismissing the witness from the stand, inquired of the defendant’s counsel whether any of the facts testified to by the witness would be controverted, to which the defendant’s counsel replied that they should introduce no evidence on the points testified to by him, and the right of cross-examination was not reserved, but at the close of the trial the defendant’s counsel called the witness for further examination and he did not appear, having gone home, it was held that, under these circumstances, the plaintiffs were under no obligation to detain the witness for the purpose of further examination by the defendant’s counsel. In that case the court said : “We are not called upon to decide whether, in every case where a party introduces and examines a witness, he is bound, at the peril of losing his evidence, to keep him in court until the trial is closed, for the benefit of the adverse party. We incline to think the counsel should avail tliemselves of the opportunity to cross-examine before tlie witness leaves the stand, unless the court, for some good reason, should allow them the privilege at a subsequent stage of the trial. In this case the plaintiffs counsel had good reason to suppose the witness would not be wanted further by the defendant.”

In Ruloff’s Case (11 Abb. [N. S.], 245) it was held by the trial judge that, where witnesses have once been cross-examined, and have left the stand without reason to expect to be called again, the fact that they do not appear when called again to be further cross-examined as to a fact on which they were not previously examined, is not, necessarily, ground for striking out their testimony, especially where other evidence has already been given of the fact sought to be proved.

In Burden v. Pratt (1 T. & C., 554), where a witness for the plaintiff was examined and cross-examined, and at the close of the cross-examination the defendant’s attorney gave notice to the witness and plaintiff’s attorney that he wished to further cross-examine the next day and desired the witness present at that time, and the trial continued and other witnesses were examined, it was held that the plaintiff was not bound to produce the witness on the following day for further cross-examination.

The court may in all cases permit a witness to be recalled, either for further examination in chief, or for further cross-examination.”' (Reynolds’ Stephen on Evidence, lYS.)

"While the authorities upon this question are not in entire harmony, and some of them would seem to justify the rulings of the court in this case, yet, we are disposed to think the court should have permitted the defendant to secure the attendance of this witness, and held the trial open a reasonable length of time to enable him to do so. It can be readily seen by an examination of the case how a further cross-examination of this witness might have been important to tlio defendant after the introduction of the other evidence given by the people. That the defendant intended to reserve the right of further cross-examination and to give the people’s attorneys notice of that fact, we have no doubt. The affidavits of four witnesses are to the effect that such statement was made by the defendant’s counsel, while the affidavits in opposition are only to the effect that no such notice was heard, although at the trial one of the affiants simply stated that he did not remember that any such statement was made by the defendant’s attorney. Under these circumstances, we think the proper administration of justice would have been better served by permitting the defendant to' secure the attendance of this witness, even if a brief postponement of the trial, until his attendance could be secured, had been necessary. (Neil v. Thorn, 88 N. Y., 270, 276.)

There are other grave exceptions in the case, but, as we think, the judgment should be reversed for the errors already pointed out, and as those raised by the other exceptions will probably be avoided upon a second trial, we do not deem it necessary to specially consider them on this appeal.

The conviction, judgment and order must be reversed and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit certified copy thereof with the return and decision of this court to the Court of Sessions of Onondaga county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.

HaediN, P. J., concurred; Merwin, J., concurred in result.

Conviction, judgment and order reversed and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit certified copy thereof with the return and decision of this court to the Court of Sessions of Onondaga county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.