author: Bradley, J.: Ward, J.

text:
    The People of the State of New York ex rel. Charles Hoffman, Appellant, v. Charles A. Rupp and Others, Constituting the Board of Police of the City of Buffalo, New York, Respondents.

      Mandamus — available only to enforce a specific legal right — the proper remedy for the removal of a defacto officer is by quo warranto.

    It is not tlie province of a writ of mandamus to establish rights or to determine controversies; it is available only for the enforcement of a clear specific legal right which must be attended by an existing duty on the part of the person -to whom the mandamus is directed to perform or execute it, and the absence of either defeats the remedy.
    Where an office is already filled by an actual incumbent exercising the functions of such office, even when he is merely an officer defacto under color of right, a mandamus is not the proper remedy to compel the admission of another claimant to the office.
    In a proceeding instituted by mandamus, under chapter 716 of the Laws of 1894, which provides that ‘ ‘ in every public department * * * of the State of
    New York and of the cities * * * thereof; and also in non-competitive examinations under the civil service rules, laws or regulations of the same wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment * * * provided they possess the business capacity necessary to discharge the duties of the position involved,” by a relator who was an honorably discharged soldier of the United States in the late war, to compel the board of police of the city of Buffalo to appoint him to the position of an assistant sealer of weights and measures of the city of Buffalo, it appeared that the relator applied to said board for appointment to such office ; that he was competent to perform the duties of the office ; that he was the only honorably discharged soldier who applied for the position, and that the police board did not appoint the relator, but did appoint two other persons who duly qualified and were incumbents of the office.
    Held, that the relator’s proper remedy to review such appointments was by quo warranto and not by mandamus.
    Ward, J., dissenting.
    Appeal by tlie relator, Charles Hoffman, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Erie on the 21st day of May, 1895, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the proceeding upon the merits.

      Geo. W. Cothran, for the appellant. -

      Frank C. Laughlim,, for the respondents.
   Bradley, J.:

This proceeding was instituted by an alternative writ of mandamus commanding the defendants to appoint the ■ relator to the office of assistant sealer of weights and measures of the city of Buffalo or show cause to the contrary.

The writ was founded upon the fact- that the relator had served in the army of the United States in the late war, and was honorably discharged therefrom; that he had made application to such board of police for appointment to that office, and was entitled to preference pursuant to the statute which provides that, “ In every public department * * * of the State of New York and of the cities, * * thereof, and also in non-competitive examinations under

the civil service rules, laws or regulations of the same wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.” (Laws 1894, chap. 116.)

The statute also further provides that “ the civil service rules and laws of this State shall not apply to such persons, residents of this State, who served in the' army or navy of the United States in the late war, and have been honorably discharged therefrom, for any position or employment, the compensation of which does not exceed four dollars a day, in the public departments, and upon all public works of the State of New York and of the several cities, counties, towns and villages thereof.” (Laws 1894, chap. 717.)

The defendants made return to the writ and the issues were tried and the court found as facts that the office of assistant sealer of weights and measures is a public office of the city of Buffalo, with an annual salary attached thereto of $1,000, and with a definite term of one year; that on the 12th day of December, 1894, there were two vacancies in such office, and that the filling of them by appointment devolved upon the defendants, constituting such board of police; that the relator was a volunteer soldier in the army of the United States in the late war, and was honorably discharged therefrom ; that he applied to the board for appointment to such office, and in his application set forth his military service and honorable discharge; that he was competent to perform the duties of the office, and was the only honorably discharged soldier who applied for appointment to either of those vacancies; that the board of police did not appoint the relator, but did appoint two other persons who duly qualified and were incumbents of the office; that neither of them was an honorably discharged soldier; that each of them had qualifications for the performance of the duties of the office superior to those of the relator, and that such superior fitness was the inducement for their selection by the board in preference' to the appointment of the relator.

And, as conclusion of law, the court determined that the writ of mandamus was not the proper remedy and dismissed the proceeding.

The only question requiring consideration on this review is whether the remedy adopted by the relator was available for the purpose of the relief sought by him.

The purpose of the statute is to give preference to honorably discharged soldiers in making appointments to the offices within the classes there referred to, and such is the duty devolved upon the appointing power, not, however, excluding from consideration the question of competency and fitness for the positions.

Assuming that the relator was entitled to preference as against either of those so appointed by the defendants, he has no title to the office. That is not given by the preference, but is dependent upon appointment by the constituted authorities, without which, no person can legally become an incumbent of the office. It is in that view that the 'relator seeks to enforce his appointment by the defendants. They have exercised their power in that respect, and the persons appointed are in the offices. But it is insisted that one of them was unlawfully placed there by reason of such preference to which the relator was entitled, and that the 'defendants having made the appointment in violation of law cannot assert it in denial of his right to the preference. The fact remains that there is no vacancy to fill. The offices are occupied by those having apparent authority derived from appointment by the board having the power to make it. The appointment of the relator would not displace either of the present incumbents. It is not the province of a writ of mandamus to establish rights or to determine controversies. It is available only for the enforcement of a clear, specific legal right, and there must also be an existing duty of the respondents to perform or execute it. The absence of either defeats the remedy. The proceeding by mandamus in- some sense has the nature of an action between the parties, and is for the enforcement of a right in favor of the person in whose behalf the writ is granted. The duty of the respondents, without the corresponding right upon his part, would furnish no support for granting it. (People ex rel. Bailey v. Supervisors, 12 Barb. 217.) The claim of the relator upon which the proceeding is founded is that he is entitled to the office. The question of his appointment involves the consideration of the right to the office, and unless the latter is clear the writ of mandamus, is not the appropriate remedy to enforce the former. It cannot b.e assumed that the right to the office does not present a disputed question which would have to be determined upon conflicting claims-between the relator and one of the present incumbents. The determination of the right in such case is hot within the purpose of a proceeding by mandamus, but the question may properly arise and be disposed of in an action which now in this State takes the ¡Dlace of what was formerly known as an information in the nature of quowarranto. , (Code Civ. Proc. §§ 1948, 1983.)

In sucli case the proceeding or action is instituted by the Attorney-General in the name of the People, and the relief sought is not dependent upon the right of the relator. The burden, in the first instance, is with the defendant to show that he has the legal title to the office, and the fact that he is ousted for want of such title or right to the possession of it, does not necessarily establish the title of the relator to it. (People ex rel. Judson v. Thacher, 55 N. Y. 525.)

The proposition is well settled that where an office is already filled by an actual incumbent exercising the functions of it, even when he is merely an officer de faeto under color of right, mandamus is not available to compel the admission of another claimant to the office. (People ex rel. Arcularius v. Corporation of New York, 3 Johns. Cas. 79 ; People ex rel. Wren v. Goetting, 133 N. Y. 569.)

It is first to be determined in an appropriate action in the nature of quo warranto whether one of the persons appointed by the defendants to the office in question is unlawfully in possession of it, and if the result is judgment of ouster, a vacancy is furnished.

Then it may be the duty of the board of police to fill it, and in that event, if any one person is entitled to the appointment, he may, if necessary, proceed to obtain it by means of the mandatory writ.

Those questions, however, do not arise here for consideration.

The conclusion of the trial court, that the writ of mandamus was not the proper remedy, .is well supported by the opinion of Justice Spring, before whom the trial was had.

The judgment should be affirmed.

Lewis and Davy, JJ., concurred.

Ward, J.

(dissenting):

It became the duty of the respondent, the Board of Police of the City of Buffalo, to appoint two assistant sealers of weights and measures for said city. The salary of an assistant is §1,000 a year. The duties of such officers are to test all scales and measures used for the sale or weighing of commodities within the city, and to collect fees therefor, and to report all violations of the ordinances on the subject to the law department of the city for prosecution. While said vacancies existed in these offices the relator, Charles Hoffman, a resident of said city, presented a written application to the police board for a position as assistant sealer, stating that he was fifty-one years of age, a resident of the city, by occupation a grocer, and that he had served in the War of the Rebellion from August 26,1864, until the close of the war, for which service he held an honorable discharge; that he made his application under chapter 111 of the Laws of the State of New, York, 1894. The board of police considered this application with others, took proof upon the subject and as to the duties of these officers, and the proof discloses that the application of the relator was true in fact, and no substantial objection appeared as to his competency and ability to discharge the duties of the office.

On the 12th of December, 1894, the respondents appointed Adolph Karl and Charles Hennafelt assistant sealers to fill said vacancies, and refused to appoint the relator, and on the thirty-first of December this court, upon the petition of the relator, granted an alternative writ of mandamus requiring the board to appoint the relator to the office of assistant sealer, or show cause to the contrary at a special term of the court on the 21st of January, 1895.

The board made return to this writ, and the court at Special Term made findings of fact establishing such vacancies in the office of assistant sealer; the appointment of the persons named above, and proceeds as follows: “ That the relator, Charles Lloffman, was a volunteer soldier in the army of the United States of America in the war for the suppression of the Rebellion, and was honorably discharged therefrom. That said relator applied for appointment to the office of assistant sealer, and his application, setting forth his military service and honorable discharge therefrom, was duly presented to said board of police. That said relator was competent to fill the duties of said office of assistant sealer, and he was the only honorably discharged soldier who applied for either of such vacancies.

That said appointees, Adolph Karl and Charles Hennafelt, each possessed qualifications for the fulfillment of the duties of such office superior to those possessed by said relator, and each was better fitted to discharge the duties thereof than said relator, and such superior fitness was" the impelling motive and inducement for their selection by said defending board in preference to the appointment of relator.”

The court found as a conclusion of law that the alternative writ of mandamus was not tlie proper remedy to test the disputed right of relator; he, therefore, dismissed the proceedings, and judgment was entered accordingly, and the exception to this conclusion brings the matter before us.

The learned judge at Special Term has favored us with an opinion which indicates that in dismissing the writ he relied upon People ex rel. Wren v. Goetting (133 N. Y. 569), and cases there cited, which seemed to hold that the proper remedy in testing the. right to an office was an action in the nature of quo warranto. In the case cited the relator had been appointed clerk of the Police-Court in the third judicial district of Brooklyn, and, after serving-some years, was in 1889 removed. The clerk was an honorably discharged soldier, and complained that ho had been removed without cause, and sued out a writ of mandamus to be reinstated; the trial court rightly held that the provision of law under which the clei'k claimed the preference as a soldier did not apply to a clerkship in a Police Court in Brooklyn, and dismissed the writ. The clerk appealed to the Court of Appeals, and that court disposed of the case upon the ground that the mandamus would not lie. That decision was made in April, 1892.

An important change in the law governing this case was made in 1894, two years after the decision referred to. That decision was made under chapter 354 of the Laws of 1883, as amended by chapter 410 of the Laws of 188J, and chapter 312 of the Laws of 1884, as amended by chapter 464 of the Laws of 1881.

By those acts, in every public department of the State and of the cities, towns and villages, and in non-competitive examinations under the civil service laws, honorably discharged soldiers and sailors should be preferred for appointment and employment.

And the statute of 1884 (§ 4) premises this preference to the soldier with the statement that it is' done “ In grateful recognition of the services, sacrifices and sufferings of persons who served in the army or navy of the United States in the late war, and have been honorably discharged therefrom.”

No remedy for any violation of this right of the soldier is given by either of the acts in force in 1892, but by chapter 116 of the Laws of 1894, which took effect May nineteenth of that year, the Legislature amended chapter 312 of the Laws of 1884, as amended by chapter 464 of the Laws of 1887, as follows: Sec. 1. Iir every public department and upon all public works of the State of New York, and of the cities, towns and villages thereof, and also in noncompetitive examinations under the civil service rules, laws or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss-of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they-possess the business capacity necessary to discharge the duties of the position involved. * * * And in case of such * * * refusal to allow the preference provided for iu this act of and for any such honorably discharged Union soldier or sailor, or marine, for partisan, political, personal or other cause, except incompetency and conduct inconsistent with the jmsitiou so held, such soldier, sailor or marine so wrongfully * * * refused such preference shall have a right of action in any court of competent jurisdiction for damages as for an act wrongfully done, in addition to the existmg right of mandamus ¡ the burden of proving such incompetency and inconsistent conduct, as a question of fact, shall be upon the defendant.”

The clear intent of the statute last quoted was to confer uj)on the soldier the right to resort to the remedy by mandamus to correct immediately the wrong of refusing him the preference which the statute gave him, with the right also to proceed by the more deliberate course of action in the proper court for such damages as he had sustained by the wrongful act. While it would have been better to have said that the soldier should have the right to the remedy by mandamus instead of “ in addition to the existing right,” yet when we consider the purposes of the statute and the conditions under which it was enacted, the legislative intent becomes clearly indicated though awkwardly expressed.

The statement of the existing right of mandamus is equivalent to a declaration conferring such right. If this is not the true construction, the statement as to the remedy by mandamus is senseless. Effect will be given to every part of a statute, except such parts as are utterly repugnant to the other portions of the statute and to the purpose of it.

The Legislature undoubtedly had in view The People ex rel. Wren v. Goetting (supra), and gave the soldier this remedy by mandamus to do • away with the effect ’ of that decision, and not require him to resort to a long and expensive action of quo warranto.

The apprehension of the learned counsel for the respondents, that the appointees to the office would not have their day in court, not being parties to the mandamus proceedings by name, and, therefore, injustice might result to them, is without foundation. When these appointments were made they were in violation of law by a board charged with public duties; at least one of these appointees took his ■office clouded by this inherent vice, and he was liable to bo deprived of it in a proper proceeding against the power appointing him. lie had no vested right to the office thus coming to him through a violation of law. In disposing of the question .as to the right of a soldier to the preference the police board was the only necessary party. The only remedy sought was the correction of the illegal act of the appointing power, and the board for all the purposes of that proceeding represented its appointees. Hardly a proceeding by mandamus against a public body or officer has occurred or can be conceived where the rights of persons interested are, or may not be, affected, who are not named in the proceeding. At all events the Legislature has given the soldier in the respect we are considering the right to the writ of mandamus, and the power has been constitutionally conferred, and we must administer the law as we find it.

The Legislature, in many statutes, has indicated its determination to give the veterans of the late war preference to appointive offices, and that has become the settled policy of this State. A struggle has been going on in the courts in consequence of the desire to make partisan appointments, and the result has been to a great extent to nullify or evade the laws.upon the subject. The last statute cited indicates an unmistakable determination to enforce this preference in favor of the soldiers. It condemns their exclusion for “ partisan, political, personal ” or other reasons. It tenderly declares that age, loss of limb or other physical impairment which does not incapacitate shall not be deemed to disqualify, and it concludes with the sweeping statement that the “ burden of proving such incompetency ” shall be upon the defendant; so that when the scarred and maimed veteran with his honorable discharge presents himself to the appointing power, though liis hair is gray and his wrinkles deep with coming age, lie is presumed to be competent for the place and must have it, and if he is refused the defendant must establish his incompetency, or its action will be overruled. There is no discretion left in the appointing power unless it can establish the incompetency; the statute is mandatory. When the statutory standard of competency is reached the preferred candidate takes the office. It is of no consequence that. others not preferred have superior qualifications. The appointing power cannot indulge in speculations as to comparative merit above that standard. If they are allowed to do this, it will be easy to evade the statute and make partisan appointments. The court does not assume that partisan appointments were made, or intended to be made, in this particular case, but wo wish to enphasize our position in this regard for the general good.

Turning to the facts in this case, we find that the respondents do not dispute the competency of this soldier to discharge the duties of this office. The court below, on the contrary, finds that ho is competent, as we have seen, but that court and the respondents do say that the appointees would better discharge the duties of the office than the relator, and that is all.

By chapiter 'Tl'T of the Laws of 1894 the civil service laws and rules do not apply to soldiers who apply for positions where the compensation does not exceed four dollars per day. This relieves the appellant from a civil service examination as prerequisite to an appointment.

These views lead to the conclusion that the judgment herein should be reversed and a new trial had, with costs to abide event.

Judgment affirmed, without costs.


source: Caselaw Access Project

author: Ward, J.:

license: Public Domain

text:
    Adelbert Moot, as Trustee, Respondent, v. The Business Men’s Investment Association, Appellant.

      Contract for the sale of real estate in whichi time is of its essence — subsequent readiness to perform insufficient.

    Where in a written contract for the sale of real estate, it is expressly stipulated that time shall ho of its essence, and the search required by the contract does not show that at the timo fixed for performance the vendor has a good and satisfactory title, the vendee cannot be compelled to take the title.
    Where, in such a cuse, the vendee brings au action to recover a sum paid on account of the contract, it is of no importance, as bearing upon the rights of the vendee, that the court finds that, at the time its decision is made in the. action, the vendor has a good title to the premises.
    Appeal by the defendant, The Business Men’s Investment Association, from a final judgment of the Supreme Court in .favor of the plaintiff, entered in the office of tlie clerk of the county of Erie on tlie 8tli day of January, 1895, upon the decision of the court rendered after a trial at the Erie Special Term.

      Spencer G Unton, for the appellant.

      Adelbert Moot, for the respondent.
   Ward, J.:

Tlie defendant is a corporation. Mr. Moot, as trustee, represented certain parties, whom we shall style the plaintiff. On the-5th of May, 1893, the plaintiff and defendant entered into a contract in writing, whereby tlie defendant agreed to sell to the plaintiff certain real estate in tlie city of Buffalo for $127,400, for which plaintiff agreed to pay in installments, except tlie sum of $1,000, which was paid upon the execution of the contract by the plaintiff to the defendant. Four thousand dollars .was to be paid upon tlie delivery of a deed of said premises, which should be on or before May 20, 1893. The balance was to be secured by assuming a mortgage upon tlie premises, and executing another mortgage, and if such-payments were made and security given the contract provided that the defendant would, “ on or before the 20th day of May,. 1893, execute and deliver to the parties of tlie second part (the-plaintiff) a good and sufficient deed of said premises containing a. ■covenant of warranty, which, deed shall convey good and satisfactory title, a search truly showing the condition of the title being furnished at the expense of the party of the first part (the defendant),” and the contract further provided: “ And it is further expressly agreed that time is of the essence of this contract, and that performance thereof must be made oil or before said 20th day of May, 1893.”

The plaintiff performed the contract so that he was entitled to the searcli and deed provided therein, on the 20th of May, 1893. The learned court found as a fact “ that while said contract was still in force, the defendant delivered to the plaintiff a search of the premises in question. That said search did not show good and satisfactory title and did not show the condition of the title of the defendant to said premises; that said search showed the notice of pendency of an action in partition in the Superior Court of Buffalo, in which Everard Palmer is plaintiff and Cynthia J. Curtiss and others áre defendants, and said search also showed that by the records in the clerk’s office of the county of Erie a certain judgment in said action of partition of a part of the premises in question and others in the Superior Court of Buffalo, which judgment was ■entered in the office of the clerk of the Superior Court of Buffalo on the 21th day of July, 1866, and a copy thereof- was recorded in the Erie county clerk’s office with the report of commissioners therein on the fourth day of August, 1866, in liber 258 of deeds, at page 383, showed that a portion of the premises in question was described therein.” That no search was ever delivered to the plaintiff ór his attorney while said contract remained in force, showing-good and satisfactory title or truly showing the condition of the title of the defendant.”

The plaintiff refused to accept the search as offered, and subsequently brought this action to recover the $1,000 paid upon the contract, with interest. The decision of the court was filed January 8, 1895. At the time of such decision the court found that the defendant now has good title to the premises in ■question by virtue of various deeds and judgments,” etc., which the court proceeds to enumerate, but the court also found that time was of the essence of said contract, and after said contract had ceased to exist by virtue of its terms,' or by virtue of extensions thereof, the plaintiff was not and is not under obligations to accept the title since tendered plaintiff by defendant in this action.”

The court also found that the plaintiff had demanded the repayment of the $1,000 advanced and was entitled to recover the same with interest. The action was commenced August 10, 1893. The trial was had the 6th of September, 1894. The evidence in this case- sustains the findings of the court set forth above. This was an important contract involving the salo of valuable property at a period of rapid sales and exchanges in Buffalo of real estate, and time was material; hence, it was stipulated that it should be of the essence of the contract, and stipulated that the defendant should not only convey title to the property, but should on the twentieth of May produce a search that should exhibit such title.

The parties, by their contract, made the' exhibition of such a. search a condition precedent to further performance of the contract on the part of the plaintiff, and it was immaterial that the court, should be able to say a year and a half after that time, and after action had been brought to recover the purchase money paid, that the defendant then had title, and the court 'properly refused to compel the plaintiff to take the title tendered after that lapse of time when circumstances and the conditions of property may have greatly changed.

We find no reversible error in the proceedings of the trial court, and the judgment should be affirmed.

Lewis, Bradley and Davy, JIT., concurred.

Judgment affirmed, with costs.


text:
    Henry E. Snow and Others, Plaintiffs, v. Fanny Hamilton and Others, Defendants.

      Will — action in the Supremo Oourt as to — Code of Oiml Proc. % 2653a —• applies to all toills — an additional remedy — who may sue — parties to the action.

    Section 2653a, added to tlie Code of Civil Procedure by chapter 591 of the Laws of 1892, applies to all wills, whether of real or of personal property, or of both. .
    The purpose of the amendment is to provide a procedure by action in the Supreme Court to. determine the validity of the probate of any will. It requires such an action to be commenced within two years after the will has been admitted to probate, and the question to be tried is whether the writing produced is or is not the last will of the decedent. The verdict of the jury is conclusive as to the disposition of both real and personal property disposed of by the will, unless a now trial be granted, or the judgment be reversed or vacated.
    'The amendment does not seek to affect the remedy provided in the Surrogate’s Court by a special proceeding under the prior sections of article 2, title 3, chapter XVIII of the Code of Civil Procedure, but merely provides an additional remedy by action.
    The use in the section of the language, “ any person interested in a will or codicil admitted to probate,” does not preclude a person not named in a will, but who is interested in it or in its probate, from bringing an action as contemplated by the section.
    All the heirs and other interested persons must be parties to the action, and it is not material whether they are plaintiffs or defendants, the ordinary rules of the Code of Civil Procedure, relative to the parties to an action, contained in section 446 and section 448, being applicable to such a case.
    Motion by the plaintiffs. Henry E. Snow and others, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance upon a nonsuit granted after a trial at the Monroe Circuit before the court and a jury on the 21st day of November, 1894.

      Eugene Van VoQrhis, for the plaintiffs.

      George F. Yeoman, for the defendants.
   Ward, J.:

The plaintiffs bring this action to determine the validity of the probate of the will of John Snow, late of the town of Ogden in the ■county of Monroe, deceased. The parties to this action are nineteen nephews and nieces of the deceased, four of whom are plaintiffs and the others defendants. Certain legatees named in the will are also made defendants. The nephews and nieces are all the heirs and next of kin of the deceased. None of the plaintiffs are named in 'the will. The grounds alleged in the complaint for revoking the probate are that the assumed will was not the last will of the deceased, and was not his free or voluntary act. The complaint also alleged that the deceased died seized of real property, and owning personal property in a large amount, and set forth a copy of the will, by which it appeared that the decedent bequeathed personal property and devised real estate. These facts were admitted by the defendants answering.

The record of the trial before us discloses that after the defendants had offered in evidence the paper purporting to be the will of the deceased, the decree of the surrogate of Monroe county admitting’ it to probate and the evidence ■ taken before the surrogate upon the probate of the will, the defendants rested. The plaintiffs opened the case to the jury, whereupon the defendants moved to dismiss the action upon the pleadings and the opening of the case upon the grounds: “ First, that the plaintiffs are not parties interested in this will within the meaning of section 2653a of the Code of Civil Procedure. Second, it is not claimed by the pleadings or opening that there is any real estate involved in this litigation. Third, that the action provided for* by that section of the Code relates entirely and only to real estate, and is not a remedy in regard to personalty. That as to personal property this will has become conclusive under the other provisions of the Code.” The motion was granted and the plaintiffs duly excepted, and the matter is here upon the plaintiffs’ motion for a new trial upon such exception.

What the plaintiffs’ opening disclosed dbes not appear in the record, but the motion was based upon the pleadings as well as the opening, and, as the pleadings did show that there was real estate involved in the litigation, we must assume that such was the fact.

The real contention here on behalf of the defendants is that, inasmuch as the will does not recognize the plaintiffs or any of them as devisees or legatees, they are not in a position to invoke the remedy pointed out by section 2G53a of the Code of Civil Procedure, as that limits the remedy to those specifically mentioned or provided for in the will. ' Section 2653a was incorporated into the Code of Civil Procedure by chapter 591 of the Laws of 1892, and the commencement of the section embracing it is as follows: “ Article second, title three of chapter eighteen of the Code of Civil Procedure is hereby amended by adding thereto a new section, to be known as section 2653a, which shall read as follows: ” Then follows the section ás appears in the Code. Article second ” before this amendment consisted of sections 2611 to 2653 of the Code, inclusive, and regulated proceedings instituted by petition in _ Surrogate’s Court by a person interested in the estate of the decedent,” to procure the revocation of a will of personal property, which proceeding must be commenced within one year after the recording of the decree admitting the will to probate. At the time of the adoption of this amendment the probate of a will was conclusive as to personal property unless revoked by the proceeding in Surrogate’s Court as above stated, but the probate was only prima facie conclusive as to the real estate devised by the will so that the heir could bring ejectment after probate for the interest he claimed in the real estate devised during any period not barred by the Statute of Limitations. A great necessity, therefore, existed of further limiting the right of the heir to contest the devises of a will in order to quiet titles to real estate, and in the light of this necessity we will consider the effect of section 2053a. The purpose of this amendment is manifest. It is to provide a procedure by an action in the Supreme Court to determine the validity of the probate of any will, , whether of real or personal property or of both, and requiring such an action to be commenced within two years after the will has been admitted to probate, and the question to be tried is whether the writing produced is or is not the last will of the decedent, and that question is to be tried by a jury and the procedure upon the trial is pointed out, and it provides that the verdict of the jury shall be “ conclusive as to real or personal property unless a new trial be granted or the judgment thereon be reversed or vacated.” The amendment does not seek to affect the remedy provided in Surrogate’s Court by special proceeding under the title amended, but only provided an additional remedy by action. It is unnecessary to-determine the effect of such a special proceeding as to personal property where one has been executed and completed before the action in the Supreme Court was commenced, or was in progress-concurrent with the action in the Supreme Court, as that question is not before us. But it is plain that so far as the amendment modifies or changes the title amended, the amendment, being the latest declaration of the legislative will upon the subject, controls.

We think the contention of the defendants, that because the plaintiffs are not named in the will they are not interested in the will within the meaning- of section 2053a of the Code of Civil Procedure, cannot be sustained. The language of the section is : “ Any person interested in a will or codicil admitted to probate in tins State as provided by the Code of Civil Procedure, may cause the validity of the probate thereof to be determined in an action in the Supreme Court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be parties to the action.” iLwould seem absurd to contend that a person entitled as heir or next of' kin of a decedent is not interested in a will or the question of the probate of a will which perchance cuts him off without a farthing. The requirement is that all the heirs and other interested persons shall be parties to the action. It does not define whether they shall be parties plaintiff or defendant, but they must be parties. Other sections of the Code seem to provide as to that. Section 446 provides that all persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs except as otherwise expressly prescribed in this act.” Section 448 provides that of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants except as otherwise prescribed, etc., and if the consent of any one who ought to be joined' as plaintiff could not be obtained he might be made a defendant, the reason thereof to be stated in the complaint. No principle is more firmly established in our jurisprudence than that a party interested in obtaining a specific judgment or relief in law or in equity can commence an action to secure that result.

In Wager v. Wager (89 N. Y. 161) the court held that any person claiming an interest in the personal property, either as a legatee under the will or as entitled to it under the Statute of Distributions, where a trust was involved, might bring an action to settle the construction and ascertain the validity of the provisions of the will.

The defendants contention would enable only a beneficiary under a will to secure the benefits of the statute providing for an action in the Supreme Court to test the validity of the probate, while those who are excluded and who are usually the real parties aggrieved cannot be heard unless some party named in the will chooses to make them parties defendant. This construction is too narrow. It does not fully reach the exigency which created the amendment and is in conflict with the manifest purpose of the amendment and its language.

¥e are referred to Long v. Rodgers (79 Hun, 441) as an authority for the defendants’ position. That was an action to contest the validity of the probate of a will, instituted more than one year after the probate, where an injunction was obtained restraining an executor under the will from proceeding to obtain a judicial settlement ■of his accounts. The court held that the injunction could not be sustained, as the probate was conclusive, after one year, as to personal property, uuder section 2648 of the Code of Civil Procedure, and consequently the accounting could proceed. As before said, this question is not before us. The questions in the case at bar arise as well to real as to personal property. The statement of the learned court in Long v. Rodgers, as to the necessity of the legislation embodied in the amendment of 1892, seems well sustained. If the effect of that decision is that section 2653a only relates to revoking the probate of wills of real estate, with all due respect, we are unable to concur in that view.

The motion for a new trial should prevail, with costs to abide event.

Lewis and Davy, JJ., concurred; Bradley, J., not voting.

Motion for new trial granted, costs to abide the final award of -costs.


text:
    In the Matter of the Collection of the Collateral Inheritance Tax on the Estate of Caroline C. Moore, Deceased. John C. Graves and Augusta C. Graves, as Executors, etc., of Caroline C. Moore, Deceased, Appellants; The People of the State of New York, Respondent.

      •iCollateral, inheritance tax — exemption of an adopted child, under chap. 713, Laxos of 1887 — children of an adopted child not exempt — exemption is not presumed — rate of ixiterest in cases of xinawiclable delay.

    'Where a person claims exemption from taxation he must be able to point specifically to the statute which creates the exemption; an exemption cannot be inferred or assumed.

      In proceedings taken to collect the collateral inheritance tax upon various bequests contained in the will of one Caroline C. Moore, and the interest upon such tax, it appeared that she died in May, 1887, and made her adopted daughter, Augusta O. Graves, and Augusta’s seven children, residuary legatees of her property; that a controversy arose'between Mrs. Graves and her children as to their respective shares in the residuary fund, which was finally decided in the Court of Appeals, in March, 1891, that court holding that Mrs. Graves and her children took each one-eighth; that in July, 1891, the present proceedings were taken, in which it was determined by the surrogate that the share of Mrs. Graves was not taxable, but that the shares of her children were subject to tbe tax, on which interest was directed to be paid at the rate of six per cent from May 28, 1888, to March 24, 1891, and after that at the rate of ten per cent, and that thereafter an appeal from the surrogate’s decision was taken, which was not heard at General Term until June, 1895.
    It further appeared that Mrs. Graves had never been legally adopted by Mrs. Moore, was of full age when chapter 830 of the Laws of 1873 relating to adopted children took effect, and was not entitled to inherit under chapter 703 of the Laws of 1887, giving an inheritable quality to adopted children.

      Held, that chapter 713 of the .Laws of 1887, an act to tax gifts, legacies and collateral inheritances, applied to the case;
    That as Mrs. Moore died before the passage of chapter 399 of the Laws of 1892, the clause in the latter act saving from its effect any right accruing or acquired or liability incurred prior to the said act of 1892, precluded the court from applying the act of 1892 to this case;
    That, under the act of 1887, Mrs. Graves’ share was exempt from taxation because of the mutually acknowledged relations of parent and child which existed between her and the deceased;
    That the children of Mrs. Graves, being children of an adopted child, were not entitled to any exemption, since they were not of the blood of Mrs. Moore, nor were they in any sense her lineal descendants;
    That inasmuch as there had been litigation and other unavoidable delays in the settlement of the estate, from the time of the probate of the will of the decedent up to the time of the argument at General Term, the rate of interest to be charged upon the sums payable as a tax, under section 5 of chapter 718 of the Laws of 1887, should be only six per cent per annum up to the time when payment should be made.
    Appeal by John C. Graves and another, as executors, etc., of Caroline C. Moore, deceased, from an order and decree of the Surrogate’s Court of tbe county of Erie, entered in said Surrogate’s Court on the 5th day of January, 1894, directing said executors to pay to the treasurer of Erie county the sum of $8,055.65, with interest, being the amount of the collateral inheritance tax upon various bequests contained in tlie last will and testament of Caroline C. Moore, deceased.

      Adelbert Moot, for the appellants.

      Hamilton Wand, Jr., Assistant District Attorney, for the respondent. ■
   Ward, J.:

The deceased, Caroline C. Moore, a resident of Buffalo, died on the 28th day of May, 1887, the owner of a large amount of property, real and personal. She left a will, which was duly admitted to probate, by the ninth clause of which Augusta C. Graves, wife of John C. Graves, of Buffalo, and her seven children were made the residuary legatees of her property. A controversy arose between Mrs. Graves and her children as to the proportion of the residuary fund these legatees should take respectively. A case was made and submission presented to the General Term of this court, under section 1279 of the Code of Civil Procedure, to decide that controversy, and the General Term of this department, in December, 1889, held that Mrs. Graves and her children eacli took an eighth of the residuary estate, the contention of Mrs. Graves being that she was entitled to one-half of the éstate and the children to the residue. (Reported 55 Ilun, 58.) Mrs. Graves appealed to the Court of Appeals and the judgment of the General Term was affirmed March 20, 1891. (126 N. Y. 636.) In July, 1891, the district attorney of Erie county presented a petition to the Surrogate’s Court of that county praying that Mrs. Graves and her children should show cause why a collateral inheritance tax should not be ascertained and paid, together with the interest thereon, upon the property transmitted to them from the deceased. Proceedings were had on such petition, Mrs. Graves and her children resisting the tax, claiming that they were exempt from the same, and finally, on the 12th day of July, 1892, the surrogate appointed an appraiser to appraise the value of the property .of these parties, and on the 17th of January, 1893, the appraiser made his report to the surrogate as to the value and amount of such property; on the 22d day of December, 1893, the surrogate made his decree in the premises relieving Mrs. Graves’ interest from taxation, but fixing the share of each of her children at $23,019, and ordered that the executors of the deceased pay to the treasurer of Erie county the sum of $8,055.65, with interest on the same at the rate of six per cent per annum from tlie 28tü day of May, 1888, to the 24th day of March, 1891, and interest on the same from the 24di day of March, 1891, at ten per cent per annum. On the 24th of February, 1894, the executors appealed from that decree to this court, and the appeal was argued in June last.

Augusta O. Graves was not a child of the deceased, nor had she been adopted by the deceased under any of the laws of this State, but for more than ten years prior to her death the decedent had stood in the mutually acknowledged relationship of a parent to Mrs. Graves. Mrs. Graves was of full age when chapter 830 of the Laws of 1873 relating to adopted children took effect, and was not entitled to inherit under chapter 703 of the Laws of 1887, giving an inheritable quality to adopted children.

The appellants contend that this case is to be governed by chapter 713 of the Laws of 1887, which took effect June 25, 1887, and not by chapter 399 of the Laws of 1892, which was a consolidation of the transfer tax laws and repealed all prior laws upon the subject, with a saving clause in the 24th section as to any act done or right accruing or acquired or liability, penalty or forfeiture incurred prior to said act of 1892, and this court in The Matter of Milne (76 Hun, 328), and the Court of Appeals in The Matter of Fayerweather (143 N. Y. 114), have sustained this contention, in which we concur.

The chief contention of the appellants is -that under the act of 1887 the children of Mrs. Graves are exempt from taxation upon their shares of this property the same as Mrs. Graves herself, and while those children are not precisely covered by the terms of the statute, still it was the manifest intent thereof to include the children of persons who had borne mutually acknowledged relations as children to the decedent as well as such persons. This involves a careful examination of the statute and its exemptions. By section 1 of chapter 713 of the Laws of 1887 it is provided that a tax of five dollars shall be imposed on every $100 of the clear market value of such property as shall pass by will or the intestate laws of the State, from any person who may die seized or possessed of the same or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person or persons, or body politic or corporate, in trust or otherwise, or by reason whereof any person or body, politic or corporate, shall become beneficially entitled in possession or expectancy to any property, or to the income thereof, “other than to or for the use of his or her father, mother, husband, wife, child, brother, sister, the wife or widow of a son or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent, and any lineal descendant of such decedent born in lawful wedlock, or the societies, corporations and institutions now exempted by law from taxation,” etc.

The children of Mrs. Graves certainly do not come within any of the exemptions above set forth, unless they may be regarded in some manner as the children or the lineal descendants of the decedent. Upon the death of an individual his estate reverts to the State, and inheritance and testamentary disposition are the exercise of a sovereign power. The State has the absolute dominion over the estate and taxes can be levied to the extent of that dominion.

Consequently, whatever passes under the will and the intestate laws of the State above the amount retained by the State is a voluntary gift, and a person claiming exemption from taxation must be able to point specifically to the statute creating that exemption. The exemption will not be inferred or assumed.

The children of Augusta C. Graves were in no sense the children 'of the deceased. Bouvier’s Dictionary defines a “child” to be “the son or daughter in relation to the father or mother,” born in lawful wedlock or within such competent time afterwards as to create the presumption of such relation. The term child in its primary and commonly understood meaning designates descendants in the first degree and does not include grandchildren or others. (Palmer v. Horn, 84 N. Y. 521; Magaw v. Field, 48 id. 668 ; Low v. Harmony & Others, 72 id. 414.)

The term child does not ordinarily and properly speaking comprehend grandchildren, yet sometimes that meaning is affixed to it in cases of necessity, and the cases where the term child or children is sometimes held to include grandchildren are where the circumstances surrounding the bequest and the condition of the testator’s family and peculiar provisions of the will itself, afford persuasive evidence that the testator intended by the term child or children to include grandchildren, but this condition never applies to strangers to the blood. In this case the children of Mrs. Graves are strangers to the blood of the decedent. It cannot be claimed that they are in any sense lineal descendants, for those descendants come in a direct line from and are of the blood of the decedent.

The surrogate held that Mrs. Graves’ share was exempt because of the mutually acknowledged relation of parent and child that existed between her and the deceased, and that she stood upon that special exception in the statute; that exception in no manner embraces her children or any one but herself.

We cannot see upon what principle this contention of the appellants can be sustained, and we inust hold with the learned surrogate, in this respect, viz., that none of the shares of the children of Mrs. Graves is exempt, but the order of the surrogate taxing them must be sustained.

The appellants further contend that the surrogate erred in directing the collection of interest upon the respective shares of the children. We are favored with a memorandum of the learned surrogate, stating his conclusions in the case, in which he says: “ The question whether this case should be decided in accordance with the above-mentioned acts (the Collateral Inheritance Tax Acts of 1885 and 1887) or the act of 1892 (Chap. 899), is not of importance.” At that time the decisions in The Matter of Milne and in The Matter of Fayerweather (supra) had not been announced, and the surrogate had not, therefore, the benefit of them in determining this question ; but, as we have before concluded, the act of 1887 governs, and by section é of that act (Chap. 713 of the Laws of 1887) it is provided : “ All taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent, and if the same are paid within eighteen months no interest shall be charged'and collected thereon, but if not paid, interest at the rate of 10 per cent per annum shall be charged and collected from the time said tax accrued.

By section 5 of that act it is provided: The penalty of 10 per cent per annum imposed by section 1 hereof, for the non-payment of said tax, shall not be charged where, in cases by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate of any decedent or a part thereof cannot be settled at the end of eighteen months from the death of the decedent, and in such cases only six per cent per annum shall be charged upon the said tax, from the expiration of said eighteen months until the cause of such 'delay is removed.”

It will be seen from the history of this case above given that there lias been such litigation and other unavoidable causes of delay as to prevent the settlement of the estate and an adjustment of the rights of the parties therein, substantially from the time of the probate of the will of the decedent to tlie present time, and there is reason in the contention of the appellants that they should only be charged with interest at the rate of six per cent from the expiration of eighteen mouths from the death of the degedent, as provided in section 5. The statute designates the ten per cent requirement as a penalty, the intent being to impose it wliere tlie delay is inexcusable, and for that reason the parties at whose property the collateral inheritance tax is aimed should bo in a sense punished. It seems to us, from the history of this case, that no penalty should he imposed for the delay which has occurred, and that all the interest which the shares of the children of Mrs. Graves should be compelled to pay should be the six per cent after the expiration of the eighteen months.

The decree of the surrogate of Erie county should be affirmed, with the modification that interest should be paid on tlie sum of $8,055.05 at the rate of six per cent per annum from the 28th day of November, 1888, until the same is paid.

As neither party has wholly succeeded upon this appeal, costs of the appeal will not be allowed to either party.

Lewis, Eradley and Davy, JJ"., concurred.

Decree of the Surrogate’s Court of Erie county modified so as to charge interest upon tlie shares in question at tlie rate of six per cent per annum from November 28, 1888, until paid, and, as so modified, affirmed, without costs of this appeal to either party^


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    Anna Brown, Appellant, v. John C. Moore, Respondent.

      Slander — words not slanderous per se — office of an innuendo.

    Innuendoes cannot extend the meaning of words beyond what is justified by the words themselves and by the extrinsic facts with which the words are connected.
    It appeared upon the trial of an action for slander, brought under section 1906 of the Code of Civil Procedure, that the plaintiff .said to and of the defendant, a married woman, “ What are you ? You worked as a cook in Martin Burns’ low hotel. Any one that worked there aint much, and I can prove it; and I dare you to arrest me,” and that upon another occasion the plaintiff said to the defendant that a person mentioned was a gentleman, “ but you are not a lady.” These allegations were joined in the complaint with an innuendo that by the words spoken the defendant meant that tho-.plaintiff was a common prostitute and of bad character. The complaint contained no allegation of special damage, and no special damages were proved upon the trial.

      Held, that the words were not slanderous per se, and that a nonsuit was proper.
    Appeal by the plaintiff, Anna Brown, from a judgment of the Supreme Court in favor of the defendant-, entered in the office of the clerk of the county of Monroe on the 18th day of March, 1895, upon a nonsuit granted after a trial at the Monroe Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 28th day of March, 1895, denying the plaintiff’s motion for a new trial made upon the minutes. ^

      John 11. Keef. for the appellant.

      William Johnson, for the respondent.
   Ward, J.:

The plaintiff was nonsuited at the Monroe Circuit in March, 1895, upon the close of the plaintiff’s evidence, upon the ground that the words spoken, if proved, were not slanderous per se, and that no special damage was alleged. The plaintiff was a married woman, and brought this action against the defendant, charging that he had, in a public place, and in the presence of others, said, concerning the plaintiff : What are you % You worked as a cook in Martin Burns’ low hotel. Any one that worked there aint much, and I can prove it; and I dare you to arrest me.” (Meaning thereby and by those words that plaintiff was, and had been a common prostitute, and of bad character.) To which plaintiff said : That is.not so.” Whereupon the defendant maliciously said, “Ton are a liar. You are crazy.” And on another occasion later on, the complaint charged that the defendant wickedly and maliciously said in the hearing and presence of one Mr. McFadden, “ that he (meaning Mr. McFadden) was a gentleman, but you (speaking to the plaintiff) are not a lady,” meaning thereby to hold out plaintiff to be of bad character. It was proved by several witnesses that these words were spoken of and ■ concerning the plaintiff in the presence of others in the city of Rochester. The plaintiff claimed upon the trial, and takes the position here, that the words used imputed unchastity to the plaintiff, or at least it was a question for the jury to determine whether they imputed such unchastity, and it was error not to submit the case to the jury.

The action is brought under section 1906 of the Code of Civil Procedure, which provides that in an action of slander brought by a woman for words imputing unchastity to her, it is not necessary to allege or prove special damages.” This section is the substance of chapter 219 of the Laws of 1871. Prior to that time words imputing uncliastitv to a woman were not actionable per se, but if special damage, as a result of such words, was alleged in the complaint and proved upon the trial, it might be recovered by the party aggrieved. There is no special damage alleged in this complaint, and none was proved upon the trial. We meet upon this appeal the simple question whether the words spoken imputed uncliastity to the plaintiff, and whether the words used could be fairly construed in that direction by the jury, even with an innuendo averring that the intent was to charge her with being a prostitute. Innuendos cannot extend the meaning of the words beyond what is justified by the words themselves and the extrinsic facts with which they are connected. (Sanderson v. Caldwell, 45 N. Y. 398.) It does not follow because a woman is called “ not a lady,” or mean or low, or labors for low people, that she is unchaste. She may have habits and vices and associations that might subject her to the imputations contained in the words used and still not be subject to the - charge of unchastity or guilty of it. Words in these actions are things, and where they are actionable per se they must make a clear statement of -the actionable charge, and the court and jury will not guess and surmise wliat might have been intended by tlie words that are not borne out by the words themselves. It lias been lield in Massachusetts that to say of a female that she is a bad girl or a bad woman is not actionable, even with an innuendo averring that the intent was to charge her with being a prostitute, unless at the same time there were averments and colloquium that would warrant the innuendo. (Snell v. Snow, 13 Metc. 278 ; Fitzgerald v. Robinson, 112 Mass. 380; Riddell v. Thayer, 127 id. 489.) Such averments or colloquium are lacking in this case. . We have only the words used and the occasion on which they were used, and the innuendo stated in the complaint.

The judgment and order should be affirmed.

Lewis, Dradley and Davy, JJ., concurred.

Judgment and order affirmed.


author: "Ward, J.:

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    Matilda Schneider, Respondent, v. The City of Rochester, Appellant.

      Constitutional Imo — cha/rter of the city of Rochester — right of a property owner in an award — right of a city to discontinue proceedings to take property, or to have new commissioners appointed — due process of law —piiblio officers are p/'esumed to act justly.

    A court should not hastily, or without careful deliberation, declare a statute unconstitutional; and he who assails a statute upon this ground must he able to point unerringly to the constitutional prohibition.
    A property owner acquires no vested rights in an award, made for property condemned in a proceeding for opening a new street in a city, until the final confirmation of the report of the commissioners of appraisal, and a municipal corporation may he permitted to discontinue proceedings to take property for public purposes at any time before rights, resulting therefrom, have become vested in the property owner.
    The provision in the charter of the city of Bocliester (Chap. 14 of 1880) to the effect that its common council may, after notice and a hearing, either confirm the report of commissioners of appraisal, or may set it aside and refer the matter to the same or new commissioners, to be appointed by the court, and that the common council may set aside the report and abandon the improvement at any time before the confirmation of the assessment roll, is constitutional.
    Where a'city charter provides a notice, under which it is reasonably probable that the party proceeded against will he apprised of future proceedings and have an opportunity to defend, tlie fact that a common council refuses to confirm the report of commissioners of appraisal, appointed to condemn property to open a street, and refers the matter to new commissioners, does not deprive the property owner of his property without due process of law.
    The provision of the Constitution of the State of New York (Art. 1, § 7) that, when private property is taken for public use, not less than three commissioners to appraise the damages shall be appointed, in no manner prevents the appointment of a second commission under a city charter which authorizes and directs such a course, provided that the requisite number of commissioners is selected and they are duly appointed. Public officers, as for example a common council, are presumed to perform their duties, and the court cannot assume that a common council will, to any unreasonable extent, persist in rejecting appraisals of property condemned for a public improvement.
    The members of a common council cannot be said to have any pecuniary interest in the result of such proceedings, beyond that of other citizens; and there is no force in an objection that a charter which gives the common council power to reject an appraisal as well as to confirm it, makes the city a judge in its own case, in proceedings to assess damages for lands taken for a public improvement.
    Appeal by the defendant, The City of Rochester, from an order •of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th •day of June, 1894, enjoining, restraining and prohibiting the defendant, the City of Rochester, its agents, attorneys, officers and •servants from applying to the County Court of Monroe county, or to any other court, for the appointment of commissioners to appraise the damages and compensation which the owners, tenants and occupants of lots 7 and 8 of the Atwater, and Andrews tract will be entitled to, by reason of the taking of the same for the purpose •of opening a street in said city, and from doing, suffering or permitting any other act in pursuance of a resolution of the common •council of said city setting aside the report of a commission to •appraise.said' damages and directing the city attorney to ajjply for .the appointment of new commissioners.

      A. J. JRodenJbeoh, for the appellant.

      JElbridge L. Adams and Waldo G. Morse, for the respondent.
   "Ward, J.:

The plaintiff is the owner of certain real estate in the city of Rochester which the city sought to have condemned in opening a new street in that city. Pursuant to the charter of the city (Chap. H of the Laws of 1880, and the acts amendatory thereof) the common council by ordinance, after the proper preliminary proceedings, determined to open said street and to take proceedings to have the property of the plaintiff condemned for that purpose. The city charter (§§ 175, at saq.) provided that the common council or city attorney slioxdd cause to be published for ten days in a daily newspaper published in said city a notice specifying and describing the lands or right or easement therein desired necessary for the street, and the portion of the city deemed to be benefited by reason thereof, and that an application would be made to the County Court of Monroe county orto a Special Term of the Supreme Court to be held in the seventh judicial district at a time to be specified in such notice for the appointment of commissioners to ascertain and appraise the compensation which the owners, tenants or occupants of such lands or persons interested therein desired to be taken will be entitled to for the same'. The common council or city attorney'should also, at least ten days before the time named for such application, cause a notice to be served on each of the owners of the premises, etc., to be taken who were residents of the said county, provided that the fact of such residence be known or can by reasonable diligence be ascertained, or upon the occupants of said premises, either personally or by leaving the same at their several places of abode. At the time specified in said notice, or at such adjourned time as the court might direct, the court should appoint not more than five, nor less than three, commissioners of appraisal, who should be freeholders of the city and not interested in any of the lands sofight to be taken, nor of kin to any owner or occupant thereof. The charter further provided that the commissioners, after taking the oath prescribed by the twelfth article of the Constitution, should. give public notice, published daily for ten days in at least one of the daily newspapers authorized to publish corporation notices, of the time when and the place where they should meet to enter upon their duties. At such time they should proceed to view the lands and premises proposed to be taken, hear the proofs and allegations of the parties, and after the testimony was closed they should appraise the damages which the owners or the persons interested in the premises to be taken for such public improvement sustained thereby. The commissioners should make their report to the common council of the city, describing the property taken and stating the amount of damages. The charter further provided: “ § 179. Hpon the filing of such report the said common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report or may set the same aside and refer the matter to the same or new commissioners to be appointed by the said court, as before, who shall thereupon proceed as hereinbefore provided, but the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned,” and “if such report is not appealed from in thirty days, as hereafter provided, or whenever such report is finally confirmed, the common council -x- * -x- may take the lands and premises or rights or easements specified in the report of such commissioners, and which have been determined by the common council'to be necessary for such improvement on paying the amount of damages or compensation awarded to the owners * * * less the amount of any assessment made against such owner or occupant * * * or depositing the same in some bank in the city of Rochester to the credit of the person to whom the same is awarded.” (§ 180.) And when such award was paid the city should become vested with the title to the lands taken, and the charter further declared that any lauds thus acquired by the city “shall be deemed to be acquired for public use.” (§ 182.) The charter further ju'ovided for an appeal by the party aggrieved, within thirty days after such confirmation, to the Supreme Court from the report and determination of the commissioners, which appeal should stay proceedings upon the giving of a bond specified by the statute, and the appeal should be heard by any General or Special Term in the seventh judicial district; if heard by the Special Term an appeal from its order might be taken within ten days to the General Term.

In pursuance of the authority thus given by the charter, on the 18th day of January, 1894, the County Court of Monroe county, upon due notice, ajDpointed three commissioners that were qualified by the statute as such to appraise the damages and the compensation of the owners for taking the lands necessary for such street. The commissioners duly proceeded, after giving the notice required by statute, and appraised the damages of the plaintiff at $40,000. Their report was presented to the common council on the 29th day of March, 1894, and the common council fixed the third of April following as the time of hearing objections to the confirmation of tire report, and at such time, it being a regular meeting of the common council, the report was presented for action. The plaintiff was present; no allegations were made against the confirmation of the report except by the city attorney of Rochester, who made objections. The common council refused to confirm the report, but resolved that it be set aside and referred back to new commissioners to be appointed by the Monroe County Court as provided by the city charter, and the city attorney was directed to make the necessary application. .In attempting to carry out that purpose the defendant was enjoined from proceeding therein by an order of the Special Term of Monroe county, and an appeal from that order brings the questions before us that we will proceed to consider.

"Wo are favored with an opinion from the learned judge who granted the order at Special Term, in which the reasons for the order are stated, and those reasons are supplemented by the points of the learned counsel for the respondent. They are in effect that the plaintiff had , a vested interest in the award made by the commissioners, and-had the right to have it enforced; that the provision of the charter permitting the common council to set aside the report and to take proceedings for the appointment of- new commissioners was in violation of article 1, section G of the State Constitution, which provides that: “No person shall * * * be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation; ” and that inasmuch as the Constitution provides (Art. 1, § I) that when private property shall ho taken for public use compensation shall be ■made therefor, which compensation shall be ascertained by a jury or by not less than three commissioners appointed by a court of record as prescribed by law, and the power having been executed in the methods prescribed by the Constitution it was spent, and neither another or successive commissions could be appointed at the instance of the defendant; that to permit the appointment of successive commissions and the securing of successive awards to be in turn rejected until one was obtained satisfactory to the defendant was an oppression which violated the spirit of the Constitution and could not be sustained.

It will be seen, therefore, that a grave question is presented which reqnires our careful consideration. The duty of the court in passing upon the constitutionality of an act of the legislative branch of our State government cannot, be better stated than to quote from the opinion of the learned judge at Special Term in which he says the court should not hastily or without careful deliberation declare a statute unconstitutional,” and then quotes from The People ex rel. Bolton v. Albertson (55 N. Y. 54): “ A law which has received the sanction of the Legislature and the approval of the executive should only be held void as repugnant to the Constitution when the repugnancy is clearly demonstrated. * * * There should be no reasonable doubt of the uueonstitutionality of a statute before it should be annulled by judicial action.”

The Legislature in the domain of legislation is supreme except as limited by the Constitution of the general or State government, lie who assails the statute as unconstitutional must be able to point unerringly to the constitutional prohibition. Refore the plaintiff can complain she must have a vested right in the award of the commissioners or at least in the procedure creating it.

The decisions of the courts of this State are uniform to the effect that until the final confirmation of the report of commissioners in such cases the property owners acquire no vested rights in awards made to them. (Matter of Canal Street, 11 Wend. 154; Matter of Anthony Street, 20 id. G18; Matter of Military Parade Ground, 60 N. Y. 319 ; People ex rel. Dikeman v. President, etc., Brooklyn, 1 Wend. 318; The Corporation of Nexo York v. Maps, 6 Johns. Ch. 49; Martin v. The Mayor, ete., of Brooklyn, 1 Hill, 545.)

In The Corporation of New York v. Mapes (supra) the corporation sought to restrain the landowner from making improvements upon the premises sought to be taken. The injunction was refused and the chancellor says : “ Perhaps the better opinion is that the corporation are not bound to go on, but may recede and abandon their plan at any time before the commissioners of assessment shall have reported and their report shall have been confirmed.”

' In The Matter of the Application of the Commissioners of Washington Parle of Albany for Lerne to Discontinue Proceedings to Condemn Tcmds, etc. (reported in 56 N. Y. 144), the court, hy Rapallo, J., reviewed the question with his usual clearness, saying: “ There is a strong equity in the claim made by the appellants * * * that the election to take their property, when once exercised in such manner as to bind the owners, should be equally binding upon those who are'empowered and elect to take it, and that the owners should not be exposed to repeated applications for this purpose, which might result not only in keeping them in perpetual suspense as to their ownership, but might enable the other party to abuse the power intrusted to it by repeatedly making and withdrawing applications until it shall obtain an appraisal satisfactory to itself, and thus deprive the owners of that just compensation for their property which is guaranteed to them by the Constitution of the State.”

In answer to the equitable consideration above quoted, which is substantially the argument of the respondent here, Judge Rapallo says: On the other hand, it must be 'considered whether the apprehension of such an abuse of power is sufficient ground, in the case of a public improvement carried on by public officers, to absolutely preclude them from discontinuing their proceedings on discovering that the expense involved, and which is to be defrayed by the public or by assessments upon other property owners, will exceed the benefit to be derived from the improvement.”

And after stating that the English courts sustain the position contended for by the property owners in that case, that the corporation having elected to take the property for the public purpose could not recede, the Court of Appeals proceeds to assert this doctrine: “A long series of decisions has established that in these street cases the corporation may be permitted to discontinue proceedings at any time before rights resulting therefrom have become vested in the property owners. They further hold, differing in this respect from the English eases, that no such rights are vested until the report of the commissioners is finally confirmed and there is a final award in the nature of a judgment in favor of the property owners for their compensation.” In that case (Matter of Comrs. of Washington Park, supra) the commissioners of appraisal had met and appraised the property, and had announced their determination in several cases, and then the corporation instituted the proceeding for leave to discontinue the condemnation proceedings* and succeeded. The statute in this case, ho.wever, sets the question at rest, as it does not permit the city to interfere with the possession of the landowner or vest any title in the city until the compensation is paid. The policy of permitting the abandonment of proceedings or the appointment of new commissioners in such cases was inaugurated early in the history of this State. Section 178 of chapter 86 of the Laws of 1813, relating to New York city, provides in this respect that “ "Upon the coming in of the said report, signed by the said commissioners or any two of them, the said court shall, by rule or order, after hearing any matter which may be alleged against the same, either confirm the said report or refer the same to the same commissioners for revisal and correction, or to new commismissioners to be appointed by the said court to reconsider the subject matter thereof,” etc., and in the consolidated laws relating to New York city (Chap. 410 of the Laws of 1882), in section 1003, it is provided that as to laying out and opening certain streets and avenues in the city the board of street opening of the city was .authorized to discontinue any and all legal proceedings taken for laying out streets, at any time before the confirmation of the report of the commissioners of estimate and assessment in such proceedings, if, in the opinion of said board, the public interests require such discontinuance, and with power to cause new proceedi/igs to be taken in such cases for the appointment of new commissioners.

The constitutionality of these new provisions never seems to have been assailed by the courts.

By chapter 360 of the Laws of 1867 (§ 25) the trustees of the village of Rhinebeck were vested with a similar authority to that of the common council of the city of Rochester in regard to laying out, extending, etc., .streets and alleys in the village. Upon the coming in of the report of the commissioners of assessment of damages the trustees were empowered to annul the same, or “ they shall refer the matter back to the same commissioners, or to three others to be appointed on their application, without further notice, by some court of record.” The constitutionality of this provision came before the Court of Appeals in The Matter of Laying Out, etc., Livingston Street, in the Village of Rhinebeck (82 N. Y. 621), where the precise question as to the appointment of a second commission after the report of the first, and before the confirmation had taken place, was passed upon, and the court held the act constitutional, which would seem to dispose of the respondent’s contention in that regard. The land of the respondent cannot be taken except upon payment of compensation to be finally fixed. Until .the confirmation of the report of the commissioners, or of some commissioners, the proceedings are incomplete and initiatory, and there is no invasion of the landowner’s possession, and the statute provides for notice to him of the appointment of every commission arrd of its sessions, so that he has his day in court in all important proceedings which have reference to his property. The commissioners are not appointed by either party to the proceeding, hut by the court.

The scheme of the statute seems to he that the corporation, representing the whole people of the municipality, the property owner, the taxpayer, and the interests involved in public improvements, shall not be bound by the action of the first commission if that action be arbitrary or unjust, or award excessive damages either through mistake, ignorance or corruption. A corrective power exists in the court, not only on the application for the appointment of commissioners, but on appeal.

The plaintiff claims that this proceeding may deprive her of her property without due process of law. This provision of the Constitution does not require a legal proceeding according to the course of the common law, nor must there be a personal notice to the person whose property, is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on and an opportunity offered him to defend (Happy v. Mosher, 48 N. Y. 313), and the Legislature has the right to take away a particular form of remedy and give a new one. (People ex rel. Witherbee v. The Board of Supervisors of the County of Essex, 70 N. Y. 228 ; Stuart v. Palmer, as Collector, etc., 74 id. 183; Ln the Matter of the Estate of Curry, Deceased, 25 Hun, 321.)

The contention of the plaintiff, that commissioners, having been once appointed and having acted, the power was spent under the Constitution (Art. 1, § 1) which provides for the appointment of not less than three commissioners to appraise the damages, cannot be sustained.

The Constitution requires that they shall be appointed by a court of record as prescribed by law. We see nothing in this provision to prevent the appointment of a second commission if the law so provides, if they are of the requisite number and appointed by the proper authority.

It is a matter of constant practice by the courts to set aside the action of commissioners of appraisal and appoint new ones. In the familiar proceedings to lay out highways and to assess damages, for taking the land of the owners through which the highway is laid out the County Court may appoint successive commissions until it. is satisfied that the statute has been complied with. (§ 89 of the Highway Law, chap. 568 of the Laws of 1890.)

In actions of ejectment triable by statute and under the Constitution by a jury, after a verdict for the plaintiff, the defendant may take a new trial, as of course, upon payment of costs, under section 1525 of the Code of Civil Procedure. Certainly the vested right of a plaintiff in ejectment to a verdict recovering real estate is as great as the vested right of a landowner in an unconfirmed report of commissioners to assess damages.

We entertain no doubt of the power of the court to appoint this second commission. If the statute authorizing it be oppressive and unjust it is not for the court to do away with it by judicial action unless it violates the Constitution. The remedy of a party complaining of such a statute is to apply to the Legislature and not to-the court; nor is there any force in the position that the charter-makes the city a judge in its own case in the proceedings to assess, damages because the common council has power to reject an appraisal as well as to confirm it. The common council, it is true, in a sense represents the city, but it is charged with public duties; its members have no pecuniary interests in the result of the proceedings to appraise damages any more than any other citizen. The common council did not appoint the commissioners, as we have seen, and it is not to be assumed that the courts will appoint commissioners at any stage of the proceedings who would not perform their duties; nor are we to assume that the common council, in the discharge of its •duties, would persist in rejecting appraisals to any unreasonable extent, because until an appraisal is confirmed the purpose of the comtnon council in taking the lands for public purposes cannot be accomplished.

Our judicial history, as far as our investigation discloses, fails to show any abuse of tiie power in the court to appoint more than one commission. In condemnation proceedings three separate commissions were appointed in one matter. (See Matter of Dover St., 18 Johns. 507.)

The Legislature in its discretion has clothed these officers with this duty, and it can be exercised by no other person or tribunal. The duty must be performed by the c'ommon council or not performed at all. Even in case of a judicial officer, where he has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute, and he has so exclusive a jurisdiction by Constitution or statute that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as that there may not be a failure of remedy. (Matter of Ryers, 72 N. Y. 1, and cases cited.)

Many other public officers are required by statute to pass upon matters involving their own pecuniary. interests. A town assessor takes part in assessing his own property. Members of boards of supervisors and town auditors pass upon their own accounts. (Matter of Ryers, supra, 14, 15.)

Nor does the forming of an opinion as to the matter in hand disqualify the members of a common council of a city from discharging a duty imposed upon them by statute'. (People ex rel. Burby v. The Common Council, 85 Hun, 607.)

These views lead to the conclusion that the statute referred to is not in violation of the Constitution; that the proceeding complained of was a valid and legal one, and that the preliminary injunction should be dissolved.

The order for such injunction should be reversed, but without costs to either party.

Bradley, J., concurred; -Lewis, J., not voting.

Order reversed, without costs.


author: Ward, S.:

text:
    In the Matter of the Petition of Charles H. Corbett and William H. Hart, Judgment Creditors, for an Order Directing A. J. Graham, Executor, etc., of Chauncey L. Sheldon, to Pay Judgments Rendered against Deceased in His Lifetime. Charles H. Corbett and William H. Hart, Respondents; A. J. Graham, as Executor, etc., of Chauncey L. Sheldon, Deceased, and Susan R. Sheldon, Appellants.

      JSxecutor and administrator — proceeding by a judgment creditor to enforce payment of a debt — acceptance of an unverified answer, a waiver of objection thereto — the insufficiency of an answer must be objected to — what maybe shown under it— sol/cency of an estate not shown by the inventory.

    In a proceeding brought under the Code of Civil Procedure (§ 2722) by a judgment creditor, to enforce the payment of a debt against the estate of a decedent, the executor filed an unverified answer in which he alleged that the estate was insolvent; that the claim had been settled and compromised during the lifetime of the decedent, and that it was not a legal claim against his estate. No objection was made to the want of a verification, or to the insufficiency of the answer, until after a decree had been made and entered, and the only proof that the executor had assets applicable to the payment of the claim was made by the introduction in evidence of the inventory on file in the surrogate’s office.

      Held, that the creditor, by failing to object in the Surrogate’s Court to the fact that the answer was not verified, waived any defect in that regard;
    That, by going to trial upon an answer which, among other things, alleged that the judgment was not a legal claim against the estate of the decedent, the creditor waived the alleged insufficiency of the answer, and that under the answer the defendant had a right to show a compromise and settlement of the claim;
    That the inventory, unsupported by other proof, did. not show that the estate of the decedent was solvent.
    Appeal by Albert J. Graham, as executor, etc., of Chauncey L. Sheldon, deceased, and another, from a decree of the Surrogate’s Court of the county of Chautauqua, entered in said Surrogate’s Court on the 31st day of January, 1895, directing such executor to pay to the petitioners the amount of their claim.

      A. JB. Ottaway, for the appellants.

      Walter L. Sessions, for the respondents.
   Ward, S.:

In December, 1894, Charles II. Corbett and William IT. Hart presented a petition to the surrogate of Chautauqua county, setting forth that they were judgment creditors in a judgment entered and docketed in the clerk’s office of Chautauqua county on May 10, 1890, for the sum of $659.65 and interest thereon, less $350 paid May 8, 1893. This judgment was'against Chauncey L. Sheldon, deceased. The petition alleged that Sheldon had departed this life, leaving a last will and testament, which had been probated and letters testamentary issued thereon to the appellant A. J. Graham, as sole executor of the will; that such executor had qualified and made an inventory of the personal property of the deceased, amounting to $1,933.92', and that the executor had sufficient assets in his hands applicable to the payment of such judgment that could be applied thereon without injuriously affecting the rights of others entitled to payment from the estate of the deceased, and praying a decree requiring the executor to render an account of his proceedings and pay the judgment, and that he be required to show cause why he should not do so. The order to show cause was granted, and upon its return the petitioners appeared by attorney, and the executor also appeared by attorney, and filed an answer entitled in the proceeding, which, among other things, alleged that the estate of the said Sheldon was insolvent, and'that there would not be sufficient assets to pay the indebtedness of the said estate and the expense of administration, and further alleged that the claim mentioned and described in the petition herein was compromised, settled and fully satisfied during the lifetime of Chauncey L. Sheldon, and that the same is not a legal claim against the estate of Ohauncey L. Sheldon. Wherefore the executor prays for a decree of the court denying the petition of the petitioners, together with costs.” This answer was not verified, although in writing. No objection was made on behalf of the petitioners to the want of such verification, or that the answer was insufficient in any respect, but the parties proceeded before the surrogate to litigate and dispose of the matters stated in the petition and thé answer. On behalf of the petitioners the probate of the will of the deceased and the inventory of his estate were proved, as well as the judgment set forth in the petition. The executor offered in evidence a receipt given by the petitioners to the deceased, which was as follows:

“ Sherman, N. Y., May 8,1893.
“ Received from O. L. Sheldon three hundred and fifty dollars in full satisfaction for judgment against il. Sheldon & Co., provided a check we have taken against C. C. Bennett is paid when due, which is July 20, 1893. ($333.90 amount check.)
“HART & CORBETT.”

"Walter L. Sessions was the attorney appearing for the petitioners upon such proceeding, and he admitted in evidence “ that the sum of $350, the amount of this receipt (the receipt above given), was paid in full, and he further admits that the check of C. C. Bennett, referred to in said receipt, was paid and constitutes a part of the $350.”

. The surrogate found sufficient assets out of which said judgment could be paid without injury to the creditors, and directed the payment of the balance claimed upon the judgment of the petitioners out of such assets and refused to dismiss the petition. This proceeding was under section 2722 of the Code of Civil Procedure, which provides that a creditor may take proceedings before the surrogate for the payment of his debt or its just proportional part at any time after six months have expired since letters were granted, and the section further provides that on the presentation of such petition the surrogate must issue a citation accordingly, and on the return thereof he must make such a decree in the premises as justice requires, but must make a decree dismissing the petition without prejudice to an action or an accounting in behalf of the petitioner “ where an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal and denying its validity or legality absolutely or on information and belief.” The contention of the appellants is that such an answer has been filed by the executor, and consequently the proceeding should have been dismissed, while the petitioners contend that the answer does not meet the requirements of the statute and was not verified as required by it. Other points are raised by this appeal which it is unnecessary to consider here.

The learned surrogate filed an opinion in the proceeding, which is before us, wherein he seems to concede that he had no authority to try the question whether there had been a valid compromise, settlement or satisfaction of the judgment between the petitioners and decedent under the line of authorities of which Jaffray v. Davis (124 N. Y. 164) is an instance, but he says the question presented to him was whether the issue was. raised by the executor’s answer so as to deprive the surrogate of jurisdiction, and he concludes that the executor had failed to file the answer required by section 2722, above cited, in that the answer was not verified and fails to set forth facts showing the legality and validity of the claims or to deny the same, and he then further concludes that the only question before him was whether there was personal property of the estate of the deceased applicable to the payment of the judgment which could be. applied without injuriously affecting the rights of others, and he held upon the inventory alone (there being no other evidence of the fact before him) that there was such property in the hands of the executor sufficient to pay the judgment and ordered it to be paid. By failing to object (so far as this record discloses), until after the decree had been made and entered, to the want of verification of the answer, and proceeding to the proof as though the answer was sufficient in that respect, the petitioners waived the objection that they here make and that the surrogate relied' upon that it was not verified. A person can waive a statutory and even a constitutional provision in his own favor. (In the Matter of the Application of the Mayor of New York to Acquire Title to Lands, etc., 93 N. Y. 507 ; Vose v. Cockcroft, 44 id. 415; Buel & Others v. The Trustees of Lockport, 3 id. 197.)v He can waive the right of trial by jury and many other important rights in legal proceedings, civil and criminal. The objection that a pleading is not verified cannot be taken at the trial (Schwcurz v. Oppold & Others, 74 N. Y. 307), and it is a familiar rule that a party receiving without objection an unverified pleading where a verified one is required, waives the right to object to the pleading for the want of verification. The answer was certainly sufficient under the language, of section 2722 of the Code of Civil Procedure to show that it is doubtful whether the petitioners’ claim is valid and legal and. to deny its validity or legality. It alleges that the estate is insolvent and not sufficient to pay the indebtedness of the estate. It alleges that the claim of the petitioners had been settled, compromised and fully satisfied during the lifetime of Sheldon, and was not a legal claim against his estate. The averment that it was not a legal claim against the estate was equivalent to a denial that it was so. The allegation that.the claim had been satisfied and settled was sufficient to admit proof of the fact so alleged. The parties so regarded it upon the proceeding before the surrogate and gave proof upon the issues raised by the pleadings. That proof showed a compromise and settlement of the petitioners’ claim- sustaining the allegations of the answer to the extent of creating a disputed claim or question as to whether there was an accord and satisfaction or whether the estate in equity was entitled to relief or a discharge, either in part or in whole, from the judgment, which the Surrogate’s Court had no jurisdiction to try. (McNulty, as Administratrix, v. Hurd, 72 N. Y. 518 ; Jaffray v. Davis, 124 id. 164, supra; and see cases cited at page 520, 72 id. supra.)

The surrogate should have dismissed the proceedings for want of jurisdiction.

Another difficulty appears in the way of the petitioners ; the surrogate adjudged that the deceased left property sufficient to pay his debts. There was no proof before him, so far as appears by the record before us, to justify such a conclusion.

The inventory upon which the surrogate seems to have relied was the onJy proof and that was insufficient.

The decree appealed from should be reversed, without costs to be paid by the respondents.

Bradley and Davy, JJ., concurred; Lewis, J., not voting.

Surrogate’s decree reversed, without costs.