author: Learned, P. J.: Mayham, J.:

text:
    REBECCA G. MUNSON, Respondent, v. GEORGE H. MUNSON, Appellant.

      Bivtyrce — decree fraudulently obtained in another State — not conclusive as to jurisdiction —• a divorce valid in another State, but shown, in an action between residents of the State of New York, to be invalid in New York, is not a ban' in the latter State.

    A liusband and wife were married in New Jersey, and thereafter became domiciled in the State of New York. The husband left his wife, went to California solely for the purpose of taking advantage of its divorce laws, and procured a divorce, valid there, upon evidence known to him to be false. Service was made on the wife in the divorce proceedings by publication and by mail, directed to her in New Jersey, where the husband had sworn that her residence was. After obtaining the divorce he returned at once to the State of New York, and subsequently married there one Flint.

      In an action brought by the first wile for a divorce a vinculo on the ground of the husband’s adultery with Mint:
    Held, that as both parties to the California decree were, in contemplation of the law, residents of this State, the service upon the wife did not confer jurisdiction and said decree was invalid in the State of New York.
    That the record in the California action was not conclusive as to jurisdiction, and our courts would inquire whether the husband’s residence and domicile in that State was real or only colorable.
    That, although the California divorce w'as valid in that State, it had been shown to be fraudulent and invalid upon a trial had in this action for divorce by the wife, and hence was not a bar thereto.
    Appeal by the defendant George H. Munson from a judgment, entered in the cleric’s office of the county of Montgomery on the 5th day of August, 1890, granting to the plaintiff an absolute divorce from the defendant upon the ground of adultery, permanent alimony and the custody of her son.

      M. L. Stover and Matthew líale, for the appellant.

      Ed/wa/rd J. Maxwell, for the respondent.
   Learned, P. J.:

This is an appeal from a judgment upon a decision by the court. The action was brought for divorce, and judgment was rendered in favor of plaintiff. The defendant appeals.

The parties were married December 10, 1873, in New Jersey. The defendant is now living and cohabiting in this State with another woman to whom he claims to have been lawfully married in the State of California on the 22d of September, 1888, after a divorce claimed to have been obtained by him against the present plaintiff in the said State of California, August 28, 1886. Soon after the marriage of plaintiff and defendant, and prior to January 1, 1880, they became residents of the State of New York, and they continued to be such residents until the -present time, unless the departure of the-defendant in July, 1885, from the State, changed his residence. Up to that time they had treated each other as man and wife. The learned justice who tried the case found as a fact that about September 1, 1885, defendant left the State of New York and went to California; that he did not go there for the purpose of establishing a residence, and had no intention of establishing a residence there; that he went solely to effect an ostensible change of residence so as to avail liimself of the laws of that State in order to procure a divorce, intending to return to this State when he should have procured such divorce. That finding is sustained by defendant’s own testimony. He says he went in July to the State of "Washington, thence to California; that he told Ins wife he would go into the cattle business at Custer, on the Northern Pacific Railroad ; that he had $200 capital; that this was insufficient; that when he reached California he applied for employment but did not get it; that he invested his $200 in railroad fares; that he went to Honolulu to see the country; went to Oregon; went to Alaska to see mines, and engaged' in no permanent business in California. He says he did not transfer his church connection.

On the 22d of April, 1886, this defendant commenced an action against the plaintiff in the Superior Court of San Francisco, California, for divorce, on the ground of her desertion since February, 1882, and her extreme cruelty. He made an affidavit that she was not a resident of California, but, at that time, of New Jersey. On that an order for publication and for service on her by mail was made in that court, and on the 9th day of August, 1886, her default was entered in that court. The complaint in that action averred that he had been for six months a resident of California; that in February, 1882, his wife willfully deserted and had since lived apart from him without any cause; that she had been guilty of extreme cruelty towards him by her extravagance, bad temper and her charging him with infidelity, which acts had seriously injured his health.

After the default, the testimony of Munson was taken, and testimony by commission was also taken at Amsterdam, N. Y. And on the 28th day of August, 1886, a decree of divorce was granted in that Superior Court, dissolving the bonds of matrimony by reason of the desertion and extreme cruelty of the defendant therein, the present plaintiff.

Within a few weeks after obtaining the divorce the defendant returned from California to Amsterdam. He went back to the same business in which he had been engaged, as employee of Birch, his former partner, taking forty-five per cent of the net profit; the business having been during the interval, and being still, conducted under the same firm name of Munson & Birch.

He became acquainted with Miss Susan Flint at Amsterdam, in 1887, and married her in California, September 22, 1888. He has continued to live in Amsterdam since his return in September, 188G, and cohabited with her as his wife.

The parties entered into a stipulation in regard to the California judgment, in which, among other things, it is admitted that the judgment was duly given and was regular and valid under the laws of California. The defendant claims that, under that stipulation, it was incompetent for the plaintiff to give evidence tending to show the intent with which the defendant wmnt to California, and the reason why plaintiff did not accompany him. The defendant urges that all evidence on those points was excluded by the stipulation.

To understand the meaning of the stipulation we must notice that the pleadings show that the contest in the case was to be on the effect of the California decree as to the plaintiff. And the stipulation was- intended to avoid unnecessary trouble. Thus the jurisdiction of the court over such actions was admitted, the commencement of the action and the judgment therein. The record was to be produced by defendant. It was also stipulated that the matters-alleged in the action were sufficient, if true, to authorize that court to grant the decree under the laws of that State. Here the expression • if true ” shows that the parties did not agree to admit the truth of the allegations of that complaint. Those allegations include the' residence of Munson for six months in California, the desertion by the wife, the present plaintiff, and her extreme cruelty. Evidently those were not admitted to be true. Then comes the clause that the judgment was duly given, etc. Now, the fair construction of this clause, in view of the issue between the parties, and considering the whole stipulation, is, that the proper legal course was taken, and that the judgment was regular according to California laws. It did not waive the question whether jurisdiction of the parties had been in fact acquired, or whether the judgment was fraudulently obtained.

In People v. Baker (76 N. Y., 78) it is stated that it appeared by the statute offered in evidence that the proceedings in the Ohio action were regular and sufficient, and the judgment valid and binding under the laws of that State. But although that fact appeared, the court held the judgment incompetent, except to show intent. The stipulation in the present case showed nothing more than the statute did in tlie Baker Case. Tlie jurisdiction of the court over the parties remained assailable.

The learned justice who tried the case found, as a fact, that, the defendant was not, when he commenced his action, or at any other time, a resident of California. The defendant’s own testimony establishes this unquestionably. It is hardly possible to read his own testimony, and the letters which he wrote to his wife just before he went away, and have any doubt on this point. ’Nothing, which he did showed any intention of becoming a resident of that. State. He says that he did not transfer his church membership,, and, judging from the testimony given by him in California, we. should think that he had not carried his church membership into' that State.

The learned justice also finds that the charges of desertion and of' cruel treatment made in defendant’s complaint in the California action were wholly untrue and without foundation. This finding is fully sustained by defendant’s own testimony and by his own letters. He charged her with desertion since February, 1882. His letter to her in August, 1882, directs her to go to Ogdensburgh, N. J., and stay with her parents. In October, 1882, he urges her to go to a physician in New York. She was suffering from some nervous trouble, and his letters in January and in February, 1883, direct her to go to Brandon, Yt., and tell her he will get her a boarding-house and hopes she will soon be well. In April, 1884, he suggests again that she go to Ogdensburgh to live. In August, 1884, he writes that she cannot come where he is with his consent, nor have any support from him if she does, and hopes her father will keep her. He testifies that he visited her oftener than every month when she was away from home ill; he did not object to her going away, and that he furnished her money to go. This is in direct contradiction to the testimony which this defendant gave in the California action, where he testified that his wife did not go away with his consent.

It is evident that his wife was for some time in a nervous condition ; that her absence from his house was with his approval and for the apparent purpose of benefiting her health. And while it is apparent that there was a lack of harmony between them, for which she may very possibly have been to blame in whole or in part, still the pretense of desertion is utterly false, if the defendant’s testimony .and letters are to be believed.

The argument of the defendant in this case is that, even if he were, in fact, a resident of New York, and not of California, and ■even if he went to California with intent of fraudulently procuring a divorce, and even if, by his own false testimony, he induced the ■court of California to hold him to be a resident of that State, and to hold that this plaintiff deserted him, and although this plaintiff never appeared in that action and never was served with process in ■California, and although she has always been a resident of New York, yet that the judgment in California is binding on her. "We do not think such is the law of this State.

In Ruger v. Heckel (85 N. Y., 483) the defendant and her former husband bad been residents of this State. She had brought an action against her former husband, and after j>ersonal service on him she had obtained a divorce. She then married Huger, who knew these facts. lie afterwards brought this action to have the former decree of divorce annulled. The court held that the action would not lie. The plaintiff was a stranger to the former action ; and the parties to that former action were bound by it. Both had appeared therein.

So in Kinnier v. Kinnier (45 N. Y., 535), where the question arose as to the validity of a divorce in Illinois; both of the parties to that divorce were in Illinois when the action was commenced and the defendant appeared therein. And though it is stated that there was collusion, yet both parties were actually in Illinois and both .appeared in the action. These are cases where there had been an appearance by the defendant in the divorce action.

The case of Hunt v. Hunt (72 N. Y., 230) was one very carefully considered; and at page 241 the court say that a valid judgment in divorce may be rendered against a defendant not within the territorial jurisdiction during the progress of the suit, if that be the place of his citizenship a/nd domicile, though he is not served personally and has not appeared. But the court say that there are numerous authorities to the effect that a judgment of another State against a resident of this State who has never been a citizen of that other State, without personal service of process or voluntary appear•anee, is not a valid judgment and may be inquired into by our courts; and on such facts appearing may be disregarded as without jurisdiction. That was the case of a service out of the State upon a defendant who was held to be domiciled within the State at the time of the service, and, therefore, amenable to the laws and process of the State where the action was commenced.

There is nothing in the case of Cheever v. Wilson (76 U. S. [9 Wallace], 108) contrary to this view. .Because there was an answer put in by the defendant in the action for divorce and a cross petition. So that jurisdiction of the parties was had.

Further, in Hoffman v. Hoffman (46 N. Y., 30), it was held that the record of the divorce action in another State was not conclusive as to jurisdiction. To the same effect is Kerr v. Kerr (41 N. Y., 272. And in Hoffman v. Hoffman the court of this State did decide that the plaintiff in the Indiana divorce action was not ■a resident of that State and that the judgment was a fraud, although that judgment purported to show that such plaintiff was such resident.

The early case of Borden v. Fitch (15 Johns., 121) laid down the same doctrine. And it bears a noticeable resemblance to this present case, because there, also, the plaintiff in the Yermont divorce action charged his wife with willful desertion, which charge the court says was false and known to be so by that plaintiff.

In the view of these decisions we think that the learned justice who tried the case had a right to consider whether the defendant was really a resident of California when he commenced the action ■or whether such pretended residence was only colorable; and we think his decision on that matter was correct. (Cooley on Const. Law, m. p. 401.)

Here the present case stands in marked contrast to that of Maynard v. Hill (125 U. S., 190), strongly urged by the defendant. In that case Maynard and his wife were domiciled in Ohio. He went away and took up his residence in Oregon and continued to reside there till his death. "While residing there the legislature of the territory passed an act annulling his marriage. The question which arose was respecting the right of his divorced wife to certain land. The court held that a legislature, not prohibited, might pass an act granting a divorce; that the husband was a resident of Oregon and that the act was valid. The court do not hold that such an act would be valid if neither party had been a resident.

It seems to us hardly necessary to quote at any length from the decisions in People v. Baker (16 N. Y., 78); O’Dea v. O’Dea (101 N. Y., 23); Cross v. Cross (108 N. Y., 628; S. C., 13 N. Y. St. Rep., 470). They seem to be conclusive to sustain the judgment below, and in the last case it may be noticed that it is again asserted that it was competent in that case to disprove the recital in the Illinois decree that the defendant was resident there when he obtained it. Even the elaborate dissenting opinion in the O'Dea Case claims that the decree of divorce in another State, obtained without personal service, is binding only when the plaintiff is a Iona fide resident of the State!

The doctrine of these cases is again affirmed in Jones v. Jones (108 N. Y., 415; S. C., 13 N. Y., St. Rep., 840), although in that case the appearance and answer of the defendant in the Texas suit was held to make the same binding on him. In fact, the defendant practically admits that the decisions of the Court of Appeals above cited are fatal to his case unless they.are overruled by the case of Maynard v. Hill or made ineffectual by the stipulation.

¥e have considered the question on the fact, as found by the trial court, that defendant never actually changed his residence.. In Williams v. Williams (25 N. Y. St. Rep., 183), the husband and wife had been living apart for some two years owing to the husband’s unreasonable requirements. Then the husband left New York State, took up his residence in Minnesota, and there procured a judgment of divorce a vinoulo. The wife brought this action for sejiaration on the ground of abandonment. On the authority of the O'Dea Case the Minnesota judgment was excluded and plaintiff’s action sustained. So that it was held that the wife could maintain this action although the husband had taken up his residence in another State and had there procured a judgment of divorce a vineulo. The view probably was that the departure of the husband was an abandonment and gave a right of action which the wife might prosecute in this State notwithstanding his change of residence. (Jacobs on Domicile, § 224.) It is not necessary for us to apply that doctrine here. We need not consider what would be the rights of the wife if the husband should hona fide change his residence, and she should refuse to go with him, and if he should thereafter obtain a divorce in the State of his new residence by publication against her.

•There remains another point to consider. Under the decisions in Van Voorhis v. Brintnall (86 N. Y., 18), and Thorp v. Thorp (90 id., 602), the marriage in California between defendant and Susan Flint being valid, is valid here. Therefore, the defendant says that he is not guilty of adultery in this State. The first case, however, was a question as to inheritance of property. In the second, the defendant being sued for divorce on the ground of adultery, set up the alleged invalidity of his marriage-with the plaintiff on the ground that by a previous decree of divorce he was forbidden to marry, and that he married in Pennsylvania to avoid the prohibition.

Thus in neither of these cases were ’ the rights of the wife involved, in respect to whom an invalid decree of divorce had been fraudulently obtained. It is plain that those cases are not considered by the Court of Appeals to disturb the doctrine we have laid down, since the O’Tea Case and the Gross Gase are subsequent to those just cited.

We are of the opinion that the judgment should be affirmed, with costs.

Mayham, J.:

I concur in the result reached in the opinion of my Brother Learned in this case. The jurisdiction of the court of the sister State of California may be properly inquired into in this action.

If that court, by the fraud of this defendant, assumed jurisdiction of his person when he was not a resident of that State, but was in fact a resident of New York, its proceedings were cor am non judioe and void. And that fact may properly be proved in this action.

But if that court had jurisdiction, its determination would, as to the courts of this State, be final, and it would be in that case error for the courts of this State to inquire whether this plaintiff (the defendant in that action), had, in fact, deserted her husband, or done any other act charged in that action and constituting a ground for a divorce in that State.

But the evidence in this case establishes that this defendant at the time of obtaining his order of publication in California and of prosecuting his action and obtaining his decree in that State, was not a resident of that State, and that, therefore, tlie courts of that State had no jurisdiction to grant the order or entertain the action, and it acquired no jurisdiction of this plaintiff as defendant in that action, and that the judgment in this action should, therefore, be affirmed.

Landon, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author:
Learned, P. J.:
      Mayham, J.

license: Public Domain

text:
    SYLVESTER B. MILLER, as Administrator of THOMAS MILLER, Deceased, Appellant, v. HARRIET E. DAVIS and Others, Respondents.

      Action by an administrator, brought on behalf of creditors, to set aside a deed made by his intestate — when a party may testify to transactions with a deceased person — Gode of Giml Procedure, see. 829.
    An administrator, a son and sole creditor of liis intestate, brought an action, under chapter 314, Laws of 1858, to set aside a deed, made by his intestate to certain of his children, as being without consideration and fraudulent as to creditors,
    Upon the trial one of the grantees testified in her own behalf, under objection, as to statements made by the grantor in relation to the transaction, and as to the grantor’s physical condition at the time the deed was executed.

      Held, that the testimony was competent, for the reason that it was not embraced within the spirit and intent, although it was contrary to the letter o'f section 829 of the Code of Civil Procedure.
    That the action, although nominally by the administrator, was really for the benefit of the creditor and was brought to set aside the intestate’s act.
    That the testimony in question was in support of the act of the intestate, and that hence the witness testified, not “ against ” the interest of the estate of the intestate, but against a creditor who had derived no title or interest through or under the intestate. (Mayham, J., dissenting.)
    Appeal by the plaintiff Sylvester B. Miller, as administrator of Thomas Miller, deceased, from a judgment, entered in the clerk’s office of the county of Clinton on the 24th day of September, 1887, after a trial before a referee.

      J. F. Conway, for the appellant.

      C. II. Beohwith, for the respondents.
   Learned, P. J.:

This is an action brought by -the administrator of Thomas Miller, deceased, to set aside a deed made by plaintiff’s intestate to Harriet Pavis and others as fraudulent as against creditors of the deceased. The action is brought under the well-known statute, chapter 314, Laws of 1858. That statute authorizes an administrator to take a position of hostility to the estate of the deceased; and to act in behalf of creditors of the deceased, and thus to maintain an action wliicL could not have been maintained by the deceased himself. It is a familiar doctrine that if a man makes a conveyance which is fraudulent as to creditors, he cannot maintain an action to set it aside. Having been a party to the fraud he cannot recover back what lie. has fraudulently parted with. Nor probably could the administrator have done this prior to the statute. A creditor might, and may still. And the statute has not taken away his right. But it, has allowed the administrator to act for the creditor, and thus to-assume a position hostile to the rights of the deceased, whom he was. appointed to represent.

One of the defendants and grantees in the deed from the deceased was called in behalf of herself and of her co-defendants and testified to a conversation had by her with the grantor, plaintiffs intestate. Her testimony, among other things, related to the physical condition of the grantor, and to statements made by him relative to the transaction. This was duly objected to under section 829 and an exception to its ádmission ivas duly taken.

Under the literal language of the section the witness was not competent to testify to these matters. But the spirit of this section is, that a party shall not testify to a personal transaction with a deceased person against the interest of sueh deceased person's estate, represented by the administrator. And the reason is, that the deceased person cannot, in answer to the witness, give his own version of the transaction. It would, therefore, be unjust to permit the surviving party to the transaction to testify to his side of the case, when death had closed the mouth of his opponent. But in this action it is the administrator who is acting for a creditor, and for such creditor the administrator is attacking the act of the deceased. On the contrary, the witness is testifying in support of such act, and is, therefore, defending the deceased and supporting his act.

If the creditor of the' deceased had brought this action, it is plain that the witness would have been competent to testify to the matters in question. The administrator is only the instrument of the creditors of the deceased while nominally representing the deceased. The real contest is between the. creditor and the defendants. And, as between them, the witness should be competent. To exclude the testimony is to give effect to the letter of the section without considering its spirit and intent.

Let us suppose that the grantee had paid the deceased $5,000 as consideration for the deed. If a creditor of the deceased had sought to set aside the deed as fraudulent, the. grantee could have testified to his payment. But the creditor instead of bringing the action, induces the administrator to be the plaintiff. Still the creditor is the real party in interest. But if the letter of the section is to be followed, the grantee is shut off from a defense to which probably no one else could testify.

The prayer of the complaint is. that the land be sold for the satisfaction of plaintiff’s debt. For the plaintiff is himself the creditor, although, in his complaint, he complains in behalf of himself, and “ any other creditors there may be.” But he alleges that he has advertised for claims and none have been presented, and he believes there are no creditors but himself. This, then, is really an action of his •own as creditor. If he should, as creditor, request himself as administrator to sue, and if, as administrator, he should refuse, then he could ■sue as creditor, as settled in Harvey v. McDonnell (113 N. Y., 526). And as the result of the action, if successful, would be only to pay the plaintiff as creditor, evidently the administrator has no real interest. That he is the nominal party should not deprive the defendants of their testimony.

It has already been found necessary to limit the letter of similar sections by consideration of their spirit and of the evil they were intended to prevent.

We think that this case presents another instance, not foreseen by the legislature, in which the section would be perverted to injustice if the letter were to prevail, instead of the spirit. When we ask against ” whom, in the word of the 'section, did the witness testify, we must answer against a creditor who derived no title or interest from, through or under the deceased.

Judgment affirmed, with costs.

Landon, J., concurred.

Mayham, J.

(dissenting):

The plaintiff prosecuted this action under the provisions of chapter 311 of the Laws of 1858, which authorizes an administrator of the estate of an insolvent to treat as void and resist all acts done, transfers and agreements made in fraud of any creditor, including himself, and others interested in any estate held by or of right belonging to the estate represented by him as such administrator.

The estate of the intestate in this case is wholly insufficient to pay his debts, unless the premises covered by the deed sought to be .set aside can be reached, if we assume that the bond held by the plaintiff is a valid claim against the estate of the deceased.

The bond antedates'the deed; the plaintiff attacks the deed .as fraudulent as to it, upon the ground that it is a voluntary conveyance wholly without consideration.

The evidence tended to prove that, prior to the 8th day of January, 1868, Thomas Miller, plaintiff’s intestate, was the owner of about three hundred and fifty acres of land in the town of Plattsburgh, which on that day he conveyed by warrantee deed to this plaintiff, taking back a mortgage from the plaintiff for $5,000, conditioned for the support and maintenance of Thomas Miller and the four -sisters, three of whom, with the administrator of the fourth, are the defendants in this action.

On the 1st day of August, 1876, the plaintiff and wife reconveyed to Thomas Miller the fifty-nine acres of land covered by the conveyance sought to be set aside in this action, and at the same time Thomas Miller, the intestate, by an instrument in writing and under .seal, released the $5,000 mortgage and the bond given by plaintiff to him and his daughters, and at the same time, and as a part of the .same transaction, executed and delivered to this plaintiff the $2,000 bond, which he now claims to hold as a claim against the estate of his intestate. It' was admitted ■ on the trial that the plaintiff furnished no support under the $5,000 bond to his father or sisters -after the 1st of January, 1877.

On the 30th of October, 1876, intestate executed and delivered to his daughters the deed in question, which, as we have seen, is attacked in this action as fraudulent, voluntary and without consideration. On the trial the defendants sought to sustain the deed by establishing that plaintiff’s intestate gave the deed to his daughters to compensate them for their interest in the $5,000 bond and mortgage which he had canceled when plaintiff reconveyed to him the fifty-nine acres.

Upon that subject, Susan L. Miller, one of the defendants and grantees in the deed in dispute, was called by the defendants and permitted to testify in her own behalf and that of her co-defendants, to a conversation had with her grantor, plaintiff’s intestate, under plaintiff’s objection and exception.

We think that this evidence was improper, and that the objection to the same and the exception to the ruling of the referee admitting it were well taken, and that the evidence was upon a material issue and that its erroneous reception cannot be disregarded. On the direct-examination the witness was asked : Q. “ During the fall of 1876, October, and some time prior thereto, what appeared to be your father’s condition, physically and mentally ? ”

Objected to by the plaintiff as immaterial and incompetent, and as calling for a personal transaction and dealings between the witness and her father, and not admissible under section 829 of the Code and that the witness is not competent and it is not in issue.

Objections overruled and plaintiff excepts.

A. “ Physically very infirm, not able to take care of himself and had not been for some years. Mentally, his mind was good and clear unless excited or stood in fear of some one ”

While this evidence did not, perhaps, bear directly upon any issue properly to be tried.in this case under the pleadings, and might properly have been excluded under the objection as immaterial, yet, as it was received, we cannot on this appeal say that it was not treated by the referee as some evidence of consideration for this deed, especially as the intestate lived with and was cared for in his alleged helpless condition by the grantees in this deed. And it is only when the court can see that the result could not have been affected by the illegal evidence that it is at liberty to disregard it on appeal. (Milliner v. Lucas, 3 Hun, 496; Baird v. Gillett, 47 N. Y., 186.)

If, therefore, the evidence was incompetent and inadmissible as a personal transaction with the deceased grantor, we cannot say it was absolutely harmless.

In Holcomb v. Holcomb (95 N. Y., 316), where a person interested in an assignment was permitted to swear to the mental condition of the assignor, it was held to be such a personal transaction with the-assignor as to come within the prohibition of section 829 of the Code.

But the testimony quoted is not the most objectionable feature of the evidence of this witness. On her redirect-examination she was interrogated by the defendant’s counsel in this form:

Q. “ State what was said when your father informed you he had satisfied the $5,000 mortgage?”

Objected to as immaterial, incompetent and calling for personal communications and transactions with the deceased.

Objection overruled and plaintiff excepts.

A. “ My reply was that it looked as if he had turned himself and daughters into the street. That, as to his state of health and mine, we are unable to do anything for our support.” His reply was: “ I told Sylvester that I should give you girls the fifty-nine acres of land in return for the mortgage which I gave up, which rightfully belonged to you, and I will do it right away, either by deed or will.”

“ I proposed that he do it by deed to save expense of settling the-estate. His objection was, lest we take it and walk off with it as the rest of the property had gone.”

“ I then proposed that he give us the deed and for us not to take-possession until his death. * * * He said he would do so.”

This evidence was clearly improper under section 829 of the Code-of Civil Procedure.

It was a personal communication between the defendant and her deceased grantor against an administrator, and in direct violation of both the letter and spirit of that section. It was upon a material issue and it cannot be said that the court can see that it did not. affect the result. (Hobart v. Hobart, 62 N. Y., 80; Foote v. Beecher, 78 id., 15; Clark v. Vorce, 19 Wend., 233.)

As the admission of this evidence must reverse this judgment it is unnecessary for us to discuss the other questions raised on this-appeal.

The judgment must be reversed, referee discharged and a new .trial ordered, costs to abide the event.

Judgment affirmed, with costs.


author: Landon, J.: Learned, P. J.:

text:
    In the Matter of the Petition of the PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY to Vagate an Assessment.

      Power of the legislature to declare assessments valid, — right to be hea/i'd as to the apportionment — a letting of city work to the highest bidder is not in itself evidence of fraud.

    The charter of the city of Albany (chap. 298, Laws of 1883) provided that “all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside which were not pending' January 15, 1883, are hereby validated and confirmed.” An assessment for paving a street in said city was made and confirmed, and no proceedings attacking it had been commenced prior to the passage of said act. Subsequently proceedings to set it aside were taken before the county judge, under certain provisions of the city charter, and various irregularities were alleged, and, among- others, the fact that the work was fraudulently let to the highest bidder.

      Held (assuming that the county judge had jurisdiction to entertain this proceeding) that the legislature had power to confirm and make valid the assessment complained of.
    'That the legislature could, if necessary, impose by its own statutory command a complete assessment, except in the respect that it must provide that the individual shall be heard by the proper authority as to the apportionment thereof.
    'That, inasmuch as the charter of said city nowhere required the work to be let to the lowest bidder, a letting to the highest bidder, without proof that the sum levied was thereby unlawfully increased, did not justify a finding that there resulted therefrom a fraudulent addition to the cost of the work.

      Semble, that the county judge had not jurisdiction to entertain this proceeding taken under the provisions of chapter 298 of 1883, as this proceeding was not made applicable by that act to the present case.
    Appeal by the City of Albany from tlie judgment, decree and order made by the Hon. John C. Nott, County Judge of Albany ■county, in this proceeding to vacate an assessment for the improvement of a portion of South Pearl street, in the city of Albany, ■entered in the clerk’s office of Albany county on the 21st day of December, 1889, after a hearing before him pursuant to title 11 of the charter of said city (chap. 298, Laws of 1883).
    The improvement in question was made pursuant to an ordinance of the common council of the city of Albany, passed April 30,1880. After the work was completed, and on October 15, 1881, the apportionment and assessment were made and confirmed, and, pursuant to chapter 290 Laws, of 1880, payment of the assessment was extended for five years. In April, 1S83, chapter 298 of the Laws, of that year was passed. It created a new charter for the city of Albany. These proceedings were instituted under title 11 of the new charter. The first section of the eleventh title provides that “No assessment that may hereafter be levied shall be void, or shall be vacated by any court because of a failure on the part of the contractor to comply, in the execution of the work, with all the requirements of law or the contract in respect thereto,” and then provides a remedy for such failure, provided, among other things, the owner or taxpayer aggrieved “ within twenty days after the confirmation of the assessment take- the proceedings mentioned in the next section.” The section thus concludes: “And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside which were not pending January 15, 1883, are hereby validated and confirmed.” The other sections of this title are as follows:
    “ § 2. If in the proceedings relative to any assessment or assessments for local improvements in the city of Albany, ór in the proceedings to collect the same, any fraud or defect in the work or substantial error shall be alleged to exist or have been committed, the party aggrieved thereby may apply to have the assessment vacated or reduced, or both, to a judge of the Supreme Court, at Special Term or at chambers, or to the county judge, who shall thereupon,, upon due notice to the counsel of the corporation of said city, and to the contractor and his sureties, or any other person, if they, or either of them be proper parties, proceed forthwith to hear the proofs and allegations of the parties.”
    “ § 3. If after such hearing it shall be finally decided that the alleged fraud or defect in the work or substantial error exists or has been committed, the said assessment shall be vacated, except as hereinbefore otherwise provided, and the lien created thereby, or by any subsequent proceeding, shall, except as hereinbefore otherwise provided, cease; and hereafter no suit or action in the nature of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made. In case the assessment shall not be vacated, the assessment maybe reduced or judgment may be given as hereinbefore provided. Owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessments, be confined to tlie form of proceeding in this title mentioned. Tlie court may, in a proper case in proceedings under tliis title, direct that any issue or issues of fact be tried before a jury.”
    The petition upon which the county judge assumed jurisdiction •alleged (1) that chapter 77 of the Laws of 1870 under which the assessment was made is unconstitutional and void; (2) that no petition for an ordinance for such improvement signed by persons ■owning not less than one-tliird of the number of feet fronting both sides of the street, appearing on the annual tax-rolls on file in the office of the receiver of taxes, was ever presented to the common council as required by section 19 of said act, as amended by chapter 536 of the Laws of 1871; and no notice of such proposed ordinance, stating the kind of work and inviting parties interested therein to present their objections, if any, thereto was ever published for five days in the official newspapers before its final passage, •as also required by the same section of the aforesaid act; (3) that the ordinance was not passed as required by said act, and subsequent acts amendatory thereof, and was not approved by the mayólas required thereby; (1) that an ordinance of the common council of the city required the publication of a notice by the street commissioner for bids or proposals for doing the work in the official papers for five consecutive times before any contract was awarded, unless a different publication should be specially ordered by the board of 'contract and apportionment; and in this case such an •order was made by the board requiring a publication of the notice for fifteen days, but such notice was not published the number of times thus required, nor in form or substance as required by sucli ordinance or order aforesaid; (5) that the contract for said work was fraudulently and illegally awarded by the boai’d of contract and •apportionment to James N. Brady, who was the highest, and not the lowest, bidder, contrary to the duty and the standing rule of the ■board, and a contract thereupon illegally and fraudulently entered into with said James N. Brady and Thomas McCarthy, the latter of whom had offered no bid or proposal for the work, whereby the ■expense of the improvement was increased in the sum of $30,000, which was illegally included in the assessment, and the burden thus proportionately increased against the property owners, including •the petitioner; (6) that the terms of the contract in respect to materials and the manner of doing the work were not performed, so that the total value of the work and materials did not exceed the sum of $20,000; (7) that the board, nevertheless, estimated and determined the expense of the improvement at $61,694.85; (8) that the board and city officers in making the apportionment and assessment failed to comply with the city charter in ratifying and approving it as submitted by the clerk without examination, and in not apportioning it among the houses and lots in proportion to the benefits received, as well as in not verifying it, and not publishing the notice of the assessment as required, and legally confirming the same; (9) that these frauds and irregularities do not appear on the face of the proceedings.
    The answer denied the alleged frauds and irregularities, and averred that all the proceedings were legal and regular.
    The proceeding was instituted under section 2 of title 11 of chapter 298 of the Laws of 1883, above quoted. The county judge found all the principal issues in favor of the petitioner and vacated the assessment.

      D. O. Herrick, for The City of Albany, appellant.

      H. J. Meegcm and E. Oountrymcm, for the President, etc., of the Delaware and Hudson Canal Company, respondent.
   Landon, J.:

It was intended by title 11 of the new charter, above set forth, to accomplish these results:

I. To prevent for the future the vacation of an assessment, because of the failure on the part of the contractor to make strict performance, but to make the contractor and his bondsmen liable for his default, and to reduce the amount of the assessment if justice should require it.

" 2. To validate and confirm all assessments levied prior to January 15, 1883, as to which no litigation was then pending.

3. To preserve existing remedies as to such pending litigation.

4. To provide a new remedy for future cases, and to abolish the existing remedy as to them.

5. To forbid any remedy as to past assessments declared by the .act to be validated and confirmed.

The present assessment falls within the class last mentioned.

Prior to the enactment of the statute the existing remedy was by an action in equity to vacate the assessment or remove the cloud cast by it upon the title. The third section of the title forbids resort to an action in equity for such purpose, but only in respect to assessments thereafter made.

It is claimed that the new remedy applies to this case. But it is obvious that the legislature did not suppose any remedy was applicable or could be effectual to invalidate an assessment which it declared validated. It contemplated three classes of cases: 1. Past assessments in litigation. 2. Passed assessments not in litigation. 3. Future assessments. It preserved existing remedies as to the first class; provided a new remedy for the third class; and intended to validate and confirm the second class, and thereby dispense with the necessity of any remedy.

If the declared validation did, in fact, validate this assessment then no remedy could avail, and this proceeding would fail. If it did not validate it, since the new _ remedy is applicable to future assessments, and the previous equitable remedy is neither prohibited as to past cases, nor expressly abolished, it still exists. It is simply a failure to apply the new, or supersede the old remedy as to past assessments not in litigation January 15, 1883. Where the right exists, if the remedy is omitted from the statute, it is left to the common law, or if that is inadequate, to equity. (Broom’s Legal Maxims, 46; Ewer v. Jones, 2 Salk., 415; Dudley v. Mayhew, 3 N. Y., 9.)

We do not think the county judge had jurisdiction. But if we assume that the county judge had jurisdiction of the proceeding, the question is presented whether the first section of title 11 of the new charter, which provides: “And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside, which were not pending January 15, 1883, are hereby validated and confirmed,” did validate the assessment in question. If the legislature had the power to validate and confirm this assessment, then the county judge could not subsequently vacate it. It would be like trying a prisoner for crime after he had been pardoned for its commission.

This assessment did not come before the county judge simply as the act of the municipal authorities. It came with the added sanction of what purports to be legislative confirmation. Unless there is some constitutional restriction the validating section of the charter did validate this assessment. That the legislature could have originally authorized the proceedings which were taken in this case there'is no doubt. (Spencer v. Merchant, 100 N. Y., 585; Genet v. City of Brooklyn, 99 id., 296; Matter of Van Antwerp, 56 id., 261.) The proceedings it could originally authorize it could subsequently ratify. (People v. Turner, 117 N. Y., 227; Ensign v. Barse, 107 id , 329.)

The limitation upon the legislative power to impose taxation is, that', it shall'pass no act which shall deprive any person of his property without due process of law. (Remsen v. Wheeler, 105 N. Y., 573; Stuart v. Palmer, 74 id., 183.) The individual has no constitutional right to be heard upon the question whether the law, either State or ■municipal, directing the imposition of a tax or local assessment, shall be enacted, but he has a right to be heard as to what proportion of the tax or assessment shall be imposed upon him or his property. (Id.) It is for the government to determine for what public purposes a tax shall be imposed, and upon what districts or persons; but every individual has a right to be heard with reference to the basis of his own contribution to the public burden; if based Upon his property, what property; and its proportion by value, frontage, benefits received, or otherwise, to the other like property included within the assessment.

It, therefore, follows that it is no objection to the legislative validation of this assessment that the petition for the ordinance for th& improvement was insufficiently signed. The legislature could have-dispensed with the petition in the first instance, and, therefore, could validate an assessment based upon an imperfect one. In the: town bonding cases for aid to railroads, it was held that the consent of the towns, or of any portion of the taxpayers thereof, was not a. necessary condition precedent to the legislative power to authorize the issue of the bonds and to provide for their payment. Hence-bonds issued without the consent required by the original statutes were validated. (People v. Mitchell, 35 N. Y., 551; Town of Duanesburgh v. Jenkins, 57 id., 177; Williams v. Town of Duanesburgh, 66 id., 129.)

Most of tlie objections above specified in tlie petition under which this proceeding was instituted were mere irregularities which if was competent for the legislature to cure. It is objected that if, under the statute then existing, the proper jurisdictional steps were not taken, tlie common council had no jurisdiction, and all subsequent proceedings were void. Such an objection would no doubt be valid if there were no validating statute. But the ample jurisdiction of the legislature over the whole subject of taxation enables it to make and impose, by its own statutory command, a complete assessment, save only in the respect of providing that the individual shall be heard by the proper authority with respect to its apportionment. (Spencer v. Merchant, supra) The defect in the jurisdiction of the common council, if any, becomes immaterial when the legislature assumes, within its constitutional limitations, jurisdiction of the entire matter. It is for the same reason unnecessary to inquire whether chapter 77 of the Laws of 1870, under which the assessment was made was constitutional. An assault upon that act does not touch the validating act if it is free from the like objection.

The statute did not require that the work should be let to the lowest bidder. We do not hold that the legislature could ratify a tax or assessment which, in addition to the sums necessary for the public purpose, concealed a gratuity to individuals or a fraudulent increase for private or official plunder, for as to such excess the individual taxpayer would be deprived pf his property without due process of law. But the evidence does not show that the sum proper to be levied was increased by such an unlawful increment. It does .show that the contract was not awarded to the lowest bidder ; that fact might create suspicion, but it is consistent also with honest .action. Something more is needed to justify a finding of fraudulent .addition.

The notice of the apportionment is criticised, not that it was deceptive or misleading, but that it was not published for fifteen full days in literal compliance with the terms of the statute. The legislature could have authorized its publication for less than fifteen days, and hence its ratification is effective. A sewer was embraced in the improvement. The charter did not require the same steps to be taken to confer jurisdiction to construct sewers as to pave streets. Its expense was apportioned at the same time as that for the paving, etc., and the notice of the apportionment was “ of che expense for paving, grading, draining, etc., South Pearl street,” etc. We perceive no objection to the notice or apportionment, which is beyond the cure of the statute.

The order and decree must be reversed, with costs, and the proceeding dismissed, with costs in the court below.

There are thirty-eight other cases dependent upon this one ; we reverse the orders and decree of the court below in each case and dismiss the proceeding, without costs.

Mayham, J., concurred.

Learned, P. J.:

Chapter 298, Laws of 1883. is the law establishing the city government of Albany — in ordinary language, its charter. Title 11 of that section is entitled, “ Reducing and vacating assessments.” Its first section begins: “No assessment that may hereafter be levied shall be void, or shall be vacated by any court because of a failure on the part of the contractor to comply,” etc. It then provides for proceedings by taxpayers and owners, during the progress of the work, to prevent payment to the contractor if his work is not properly done. And it closes with the words: “ And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside, which were not pending January 15, 1883, are hereby validated and confirmed.” The act was passed April twenty-third.

The second section of the title provides that if, in the proceedings relative to any assessments in the city, any fraud or defect in the work or substantial error shall be alleged, the party aggrieved may .apply to a judge of the Supreme Court or to the county judge to have the assessment vacated.

Section 3 provides that in such proceeding the assessment may be vacated. “And hereafter no suit or action in the nature of a bill in equity or otherwise shall be commenced for the vacation of .any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made. * * *

Owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessments, be confined to the form of proceeding in this title mentioned.”

Section 1 of this title by its terms applies only to assessments-made after the passage of the act.

Section 2, which authorizes proceedings of the kind taken in this case, does not expressly say to what assessments it is applicable.

But section 3, in its first sentence, declares what may be done in proceedings thus taken, and the same sentence contains the words above quoted, prohibiting thereafter any suit to vacate or to remove a cloud upon title arising from any assessment thereafter made. It is plain, then, that the prohibitory clause applies only to suits in respect to assessments thereafter to be made.

Since, then, the ground of the prohibition is the establishing of a new and peculiar remedy, it must be that the new and peculiar remedy applies to the cases as to which actions are prohibited, and not to any other.

To say that a part of a sentence applies to all cases and the conclusion only to cases thereafter arising is unreasonable, unless the language compels such a construction. And when the evident, ground of the prohibition of actions is the substitution of a different, mode of relief, it is obvious that the substituted relief and the prohibition are co-extensive. If the prohibition applies only to assessments thereafter made, so does the substituted remedy. Otherwise, we have this condition, that as to assessments made before the act. the aggrieved party may adopt either the remedy taken in this case or the action in equity or at law, as the case may be; while as to-assessments made after the passage of the act he is confined to the remedy taken in this case. Then follows the other clause above quoted, that “owners of property shall thereafter,” etc. Now, it is true that this clause does not not say “ assessments hereafter made,” but speaks generally of assessments. Still we have the word “ hereafter,” and we must construe the clause with reference to the-preceding clauses of which it seems to be a repetition. The previous clause had prohibited an action to vacate an assessment or to remove a cloud where the assessment was thereafter made. This clause repeats the idea that owners of property shall hereafter be confined to the new proceeding; that is, in regard to assessments in respect to which actions are prohibited.

Now, if we turn back to section 1 we find that all assessments heretofore levied (with certain exceptions, immaterial to this case) are validated and confirmed. Without inquiring, then, at the present time as to the legal effect of this clause, we can plainly see the intention of the legislature as to subsequent clauses. It cannot be that the legislature declared all assessments theretofore levied to be validated and confirmed, and then went on to establish a procedure for invalidating the very assessments which they had just declared to be valid. Even if that validating clause had no legal effect in its operations, still it would show that the subsequent clauses giving a mode for vacating assessments could not have been intended to apply to assessments already levied, which were declared to be validated and confirmed. Such a construction would make the legislature guilty of a palpable inconsistency in first declaring all previous assessments valid and confirmed, and then saying that owners of property may take certain specified proceedings to vacate these assessments. Evidently, then, the legislature could not have meant this.

All inconsistency is, however, removed when -we construe the subsequent provisions to apply, like the first sentetfce in section l,to assessments thereafter levied. Thus we shall also follow the ordinary rule that a retroactive effect is not to be given unless the language expressly requires it. (Whitney v. Thomas, 23 N. Y., 281.) In this view the 'present proceeding was unauthorized, as the assessment -was levied before the passage of the act.

Further, as to the effect of the validating clause. In Ensign v. Barse (101 N. Y., 329), the very important and sensible distinction is stated between defects which are jurisdictional under the law as it stood when the proceeding was had, and those other defects which ave so jurisdictional that the legislature could not have dispensed with what was lacking, and, therefore, could not cure the omission by subsequent legislation. For instance, a man’s property cannot be taken away without due process of law, including notice to him. A proceeding, therefore, even in the mode provided by law, which was defective in this respect, could not be validated. To validate it would be to violate a constitutional right.

On the other hand, the legislature may authorize cities to improve streets, with or without petition of adjacent owners. The legislature may leave it in the absolute discretion of the city authorities, whether and how they shall grade, pave and sewer the streets. If the legislature has required the presentation of a petition of certain persons before tbe city authorities shall do these acts, the legislature-may say that these shall be valid, although such petition was not fully obtained.

In People v. Turner (117 N. Y., 227) the question was as to the-title of land, and this question arose as to a title acquired under an assessment, it was held that a statute was valid which limited in effect the time within which the validity of the assessment sale-could be questioned.

In People ex rel. Hays v. Brooklyn (71 N. Y., 495), the court concede the power of the legislature to legalize assessments, but say that the language of the section is too loose and indefinite to include those in question. The section under discussion provided for the reducing assessments and the confirmation of those reduced. And the court did not decide that an assessment could not be confirmed when the petition was insufficient.

In Clementi v. Jackson (92 N. Y., 591) it was held that the validating act only validated the taxes sub modo, and not the sales. Lennon v. Mayor (55 N. Y., 361) does not pass on the question involved here.

Admitting, then, for the purpose of the argument, that the petition in the present case was not sufficient to authorize the common council to act, is there any reason why the legislature may not declare the action of the common council to be* nevertheless; valid ? This action of the common council is not judicial; it is executive or administrative. If the common council were a court to decide between the parties, and one party had not been heard, very possibly the legislature could not validate the act. But that is not this case. The restriction on the common council, that a petition with a certain number of signers must be presented, touches no constitutional right. It might have been dispensed with by the legislature. And if the legislature might have dispensed with that restriction originally, then they have the power to say that its omission shall not invalidate the act, unless it were required by the Constitution.

On the question of fraud the case of Dederer v. Voorhies (81 N. Y., 153) -was decided on the peculiar language of the validating act, which only declared the assessment regular, notwithstanding any irregularity in form and substance. This was held not to include actual fraud. The language in this act has no limitation: “All assessments are hereby validated and confirmed.” If tbe act has any force, it must cover every objection, not' constitutional, which could be made.

I concur, therefore, in the reversal of the orders as stated by my Brother Landon in his opinion.

• Order and decree reversed, with costs; and proceedings dismissed, with costs in court below. In the thirty-eight cases dependent on this, order and decree of court below reversed in each case and proceedings dismissed, without costs.


author: Landon, J.: Learned, P. J.

text:
    MARY BIRCH REID, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ALBANY, Appellant.

      Tax sales — a purchase at a statutory tax sale creates a contract relation — how far rights thus acquired can be impaired by a subsequent statute of limitations.

    It was provided by section 53, chapter 86, Laws of 1850, relative to tax sales in the city of Albany, that whenever any purchaser under such a sale should be unable to recover possession of the real estate sold by reason of any error or irregularity in the assessment, in the levying of the tax or in the proceedings for its collection, the board of supervisors of the county should reimburse the purchase-money, with interest, and that, upon its refusal or neglect to do so, such amount might be recovered by action against it.
    This section was amended by chapter 429, Laws of 1889, so as to read that the board of supervisors of said county shall, “at any time within six years from such sale,” reimburse the purchase-money, with interest.
    In the several years from 1875 to 1883, both inclusive, a party purchased certain premises at tax sales in that county. In June, 1887, the Court of Appeals in a similar case held that a sale made under a similar statute was void. In December, 1889, the purchaser at the Albany county sales applied for reimbursement, winch was refused by the board of supervisors.

      Held, that the statute of 1850 was an invitation to the purchaser to pay his money upon the terms expressed therein, and that upon such payment a contract was made with him whose terms were defined by the statute.
    That the amendment of 1889, limiting the time of reimbursement to six years from the date of sale, impaired the obligation of a contract, and.was, therefore, void so far as it was sought to be applied to sales had before 1889
    That a new statute of limitations, operating upon an existing cause of action, is unconstitutional if it does not give a reasonable time for the commencement of the action before the bar takes effect.

      That the right of action in this case depended not only upon the irregularity or error, hut also upon the refusal (in December, 1889), of the board of supervisors to reimburse the purchase-money; that, assuming, under the Code of Civil Procedure (§ 410), a demand by the purchaser to be necessary, “the right to make the demand ” was not “ complete,” within the meaning of that section, until the decision of the Court of Appeals in June, 1887, and consequently the action was not barred by the Code of Civil Procedure (§ 882), which fixed a six years’ limit to an action to recover upon a statutory liability. (Learned, P. J., dissenting.)
    Appeal by tlie defendant, the Board of Supervisors of Albany 'County, from a judgment, entered in the clerk’s office of Albany county on the 13th day of February, 1891, after a trial by tlie court at the Albany Circuit.
    In the years 1875 to 1883, both inclusive, William Reid pur•chased various parcels of land at tax sales thereof, made for the non-payment of taxes by the county treasurer of the county of Albany, under chapter 86, Laws of 1850, and the acts amendatory thereof, and received certificates and deeds therefor issued to him in accordance with the terms of the act. Reid paid to the county ■treasurer, for and in consideration of such sales, certificates and deeds, the aggregate sum of $3,774.98, which was turned over by said treasurer into the general funds of the county. Section 52 of the act of 1850 read as follows at the time of the sales, and until June, 1889:
    “ § 52. Whenever any purchaser under such sale shall be unable to recover possession of the real estate sold to him, by reason of any error or irregularity in the assessment of any person or property, or in the levying of any tax, or in any proceedings for the collection of a tax, the Board of Supervisors of the said county shall reimburse the purchase-money so paid, with interest; and upon their refusal or neglect to do so, the same may be recovered by an action .against them, and shall be paid by the county treasurer, if he have moneys in his hands sufficient for the purpose, not otherwise specifically appropriated, upon the production of a certified copy of the judgment; and if he have no such moneys in his hands, then •the same shall be added to the amount of taxes to be levied on the city of Albany, and collected in the same manner as other ■contingent expenses, and, when collected, shall be paid over to such purchaser.”

      Reid was unable to recover possession of any of said parcels of real estate so sold to him by reason of errors and irregularities in the assessment thereof, and in tire levying of the taxes for which said several sales were made, and in the proceedings for the collection of the taxes, but such inability was not known or regarded as established until June, 1887. The complaint alleges “that such sales were declared irregular and void by the Court of Appeals of this State on or about June 7, 1887, as plaintiff is informed and believes.” This allegation is not controverted by the answer. Reid died in January, 1888, and under his will the plaintiff became the owner of the deeds and certificates, and of whatever rights Reid had in respect to them. In June, 1889, by chapter 429 of the laws of that year, section 52, above quoted, was amended by changing the clause thereof which read, “ The board of supervisors of the said county shall reimburse the purchase-money so paid, with interest,” etc., so as to make it read, “ The board of supervisors of the said county shall at any time within six years from such sale reimburse the purchase-money so paid, with interest,” etc. In December, 1889, the plaintiff applied to the defendant to be reimbursed the purchase-money so paid by said Reid, with interest, but the defendant refused. This action was commenced September 2,1890. The defendant, by its answer, set up the statute of limitations of six years as to the entire cause of action, of ten years as to so much of it as accrued before September, 1880, and the limitation contained in the amendment of section 52 above quoted.
    The court found the facts substantially as above set forth, and gave plaintiff judgment for the amount claimed, with interest.

      Hugh Reilly, for the appellant.

      James G. Matthews and JD. G. Herrick, for the respondent.
   Landon, J.:

When the State by statute invites any one to pay his money upon the terms expressed in the statute, and the proposition is accepted and the money paid, a contract is thereby made, and- the statute defines its terms. (Woodruff v. Trapnall, 10 How. [U. S.], 190; Furman v. Nichol, 8 Wall., 44; McGahey v. Virginia, 135 U. S., 662.)

Such a contract was made between the State and Reid. lie made his purchases at the tax sales and paid his money in acceptance of the terms extended to him in the statute of 1850 (chap. 86), and relying upon its provisions. That statute formed the terms of the contract, and was expressly referred to in the certificates of sale which the authorized officer of the State, acting in the county of Albany, executed and delivered to him. The State could pass no law impairing the obligation of its contracts with him. Its contracts rest upon the same rules as those between individuals. (Fletcher v. Peck, 6 Cranch, 87; Wabash, etc., Canal Co. v. Beers, 2 Black, 448; Hartman v. Greenhow, 102 U. S., 672.)

Under the original act no limit of time was fixed within which the defendant should reimburse Reid in case the condition should exist entitling him to reimbursement. But the amendment fixed a limit of six years from the sale ; this limit had been reached before the amendment was passed. If the amendment operated upon past sales and contracts, then the obligation of the contract to reimburse Reid was thereby instantly destroyed. (See cases cited in McGahey v. Virginia, 135 U. S., 693.) The amendment cannot, therefore, be given a retrospective effect; its language does not necessarily require that such effect be given it, and it can be satisfied by applying the amendment to such sales only as are made after its passage. It must, therefore, be so applied. (Dash v. Van Kleeck, 7 Johns., 477; Fitzpatrick v. Boylan, 57 N. Y., 437; Matter of Miller, 110 id., 216.)

The learned counsel for the defendant insists that the statute of 1850 creates the liability, and, therefore, the right of the plaintiff depends upon the statute as it exists when the action is brought But the statute did not create the liability ; it authorized its creation; the liability exists by virtue of the contract; the contract exists because the statute authorized it. The authority to incur the liability1' must not be confounded with the liability itself.

The amendment cannot be upheld as a statute of limitation upon the remedy. It purports to be a limit beyond which the duty of reimbursement shall cease, and, therefore, an alteration of the contract under which Reid made payment. If it should be regarded as a limitation upon the right of action, it could not be upheld, because it leaves no day of grace whatever. A new statute of limitation operating upon an existing cause of action is unconstitutional if it does not give a reasonable time for the commencement of the action before the bar takes effect. (Terry v. Anderson, 95 U. S., 628; Sohn v. Waterson, 17 Wall., 596; McGahey v. Virginia, supra, at page 704; Wheeler v. Jackson, 137 U. S., 245.)

Where a new statute of limitations is adopted the time which had run before the passage of the act is no part of the new limitation unless so expressed. (Sohn v. Waterson, supra; Bailey v. Kincaid, 57 Hun, 516.)

It is urged that the right of action is barred by section 382, Code of Civil Procedure, which fixes a limit of six years after the cause of' action has accrued in which to commence an action to recover upon a liability created by statute, except a penalty or forfeiture, also upon a contract obligation or liability, express or implied, except a-judgment or sealed instrument.

The cause of action, by the terms of section 52 of the act of 1850, accrued upon the happening of both of the conditions specified therein:

(1.) “Whenever any purchaser under such sale shall be unable to recover possession of the real estate sold to him by reason of any error or irregularity in the assessment * * * the board of supervisors of the said county shall reimburse the purchase-money so paid, with interest; ” and (2), “ upon their refusal or neglect to do so, the same may be recovered by an action against them.” Thus inability to recover possession gives the right to reimbursement, and then a demand and refusal give the right of action. Section 410, Code Civil Procedure, provides:

“ § 410. Where a right exists, but a demand is necessary to entitle-a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete.”

It is not clear that this section applies since section 52 of the act-of 1850 fixes no limitation to the time for making the demand. (Fisher v. Mayor, 67 N. Y., 73.) But assuming it does apply, when was the right to make the demand complete ? The trial judge found that, by reason of errors and irregularities in the proceedings prior to the sales, Reid was unable to recover possession of the parcels sold at the time of such sales and immediately thereafter. He refused to find that Reid was, therefore, immediately upon or after-.suck sales, entitled to demand reimbursement. He did find that, as the result of a decision of the Court of Appeals in a similar case (Remsen v. Wheeler, 105 N. Y., 573), the said tax sales were declared irregular and void on or about June 7, 1887.

"We understand from these findings and from the uncontroverted allegation of the complaint (recited above in the statement of facts) that the invalidating errors and irregularities existed at the date of the sales, and that they were always sufficient, if interposed in due form, to render the purchaser unable to recover possession, but this fact was not known until June, 1887. Prior to June, 1887, it might well be that, though the legality of the proceedings existed, he could obtain possession, because in the unknown condition of the law his efforts to do so would not be resisted. Unquestionably; some decisive or, at least, satisfactory test of such inability was contemplated by the statute. “ Whenever any purchaser shall be unable to recover possession ” evidently contemplates time subsequent to the sale, when a determination of the' fact will be reached, and, therefore, the right to make the demand would not be complete until such time should arrive. The always present legal inability to obtain possession awaited some decisive test of its existence before it could start the time in which a demand was due. Why was a demand made necessary. except to advise the defendant that the contingency contemplated as possible actually existed ? It clearly was not contemplated that a demand should be contemporaneous with the sale or be made until the occasion for it should be 'ascertained. Demand, therefore, was not due until June, 1887, and the statute did not begin to run until that date.

Section 52 provides that the purchaser shall be reimbursed, with interest. The right to interest is not dependent upon demand, but upon the statute, and was properly allowed.

Judgment affirmed with costs.

Mayham, J., concurred.

Learned, P. J.

(dissenting):

I am unable to see that a tax sale made under chapter 86, Laws ■of 1850, constituted a contract between the State and the purchaser. Previous to the sale the State tax had been paid by the county (§ J2 of the act), and the purchase-money on the sale was paid to the county treasurer (§ 48). The State had no interest whatever in the matter, and the complaint alleges that the money was paid to the county.

If there were no such statutory provision as that contained in section 52, and if there were no special agreement on the part of the county to refund the purchase-money, in case the title should be defective, then it seems to be settled that the purchaser could not recover such purchase-money, but that his purchase would be at his own risk. (Brevoort v. Brooklyn, 89 N. Y., 128, at 135; Coffin v. Brooklyn, 116 N. Y., 159, at 166.) Therefore, the right to recover this money back is not a common-law right. No special agreement to refund is alleged in the complaint, and the only right-to recover must be that which is given in the statute. Of course, in a certain general sense, the existing law may be said to enter into every contract. But in this case the contract was executed, viz., a contract of purchase and sale of property, and the price was paid. The liability to refund was not created by the agreement of the parties or by common law, but simply by the statute. The board of supervisors made no agreement to repay the money. Indeed, they were not parties to the contract of sale. The county treasurer sold the property and the statute declared that, in a certain contingency, the county should refund to the purchaser the price paid. The alleged liability, therefore, was created by statute. In the case of Brevoort v. Brooklyn (ut supra), it was alleged in the complaint, and admitted by the demurrer, that the defendant had expressly agreed that the purchase-money should be refunded in a certain contingency. No such fact exists here, and, therefore, there is no contract hy this defendant to refund the money. The liability is simply imposed by the statute. -

Thus it was said in Chase v. Lord (16 Hun, 369), that the liability of a stockholder in certain cases for debts of the corporation was a liability created ,by statute within the meaning of Code of Procedure (§91, sub. 2); Code of Civil Procedure (§ 382, sub. 2). That case was reversed in 77 New York, 1, hut not on this point. The statute of limitations, then, barred this action after six years after the cause of action accrued.

The plaintiff had not made any attempt to recover possession of the lands. Therefore, there was no proof of inability by showing unsuccessful actions. The plaintiff relies, therefore, on showing that, as a matter of law, she (or the purchaser) could not have recovered possession if actions of ejectment or other proceedings had been taken. To establish this question of law she cites the case of Remsen v. Wheeler (105 N. Y., 573), decided about June 7, 1887. And the trial court holds as a fact that, as the result of that decision, .these tax sales were then declared void.

But admitting that, by force of that decision, it is the law that ■these tax sales are void, still it must- bo true that they were void from the beginning; and the learned justice so holds. Such a •decision of the court does not make that void which had previously been valid. It only declares the invalidity which has always existed. 'Therefore, it is true (assuming that the case above cited applies) that, from the beginning, the plaintiff (or purchaser) lias, by reason of errors or irregularities in the assessment, etc., been unable to recover possession of the land, as was found by the learned justice.

Now, it does not change the plaintiff’s rights to say that, before the decision above cited, perhajDS the plaintiff might have obtained possession of the land, because, perhaps, the occupant would not have resisted an action of ejectment or similar proceedings. "We do not know that the occupant of the land would now resist an action, if brought by the plaintiff. All we know is, that such occupant could successfully resist. And that was true from the very first. If the plaintiff (or purchaser) had brought ejectment or similar pro■ceedings as soon as the certificates of sale were issued, the occupant, if he had chosen, might have defeated the action or proceeding. "Whether he would have chosen to do so we do not know. If he had not chosen to defend, the plaintiff (or the purchaser) would have recovered possession, and then could not have maintained this action.

The plaintiff now rests this action solely on the legal inability to recover, in case the occupant should defend. Such inability has existed since the certificates were issued, and, therefore, the right of .action in this case has existed for the same time.

In Parsons v. Rochester (43 Hun, 258) an action was brought to recover back money paid on an illegal assessment. It was held that the plaintiff had originally had a right of recovery, but that such right was barred after six years from the time of payment. The plaintiff urged that he had not such right of action until the decision in another case (Hassan v. Rochester, 67 N. Y., 528), had established the invalidity of the assessment. That is substantially the plaintiff’s view in this case. But the court said that that position was utterly fallacious; that the Hassan decision did not create the right of action.

The same is decided in Van Nest v. Mayor (24 Week. Dig., 50), where it was held that an action to recover back money paid on a void assessment must be commenced in six years from the payment. And the court further said that the fact that the demand for the return of the money was not made until shortly before the action was commenced did not extend the time; that where the right to maintain an action depends on the making of a demand, the demand must be made and the action commenced within the time limited. (Code of Civ. Pro., § 410; Dickinson v. Mayor, 92 N. Y., 584.)

The case of White v. Brooklyn (122 N. Y., 53) does not apply. The certificate in that case entitled the purchaser to a lease, “unless * * * any irregularity shall be discovered in the proceedings, * * * in which case said purchase and all sums paid * * * shall be repaid, * * * provided this certificate shall be surrendered.” The plaintiffs demanded leases in Play, 1882, which were not given. They discovered the irregularity in December, 1882. They demanded repayment and tendered the certificate in February, 1883, and commenced the action in that month. The right of action, therefore, by the terms of the certificate, arose upon discovery, and was conditioned on the return of the certificate, instead of the accepting a lease.

But the court in the opinion remarked: “If the right of the plaintiffs was dependent solely upon the fact that such irregularity existed, it is clear that the statute commenced running on the expiration of the time for redemption” (that is, the time within which the owner could redeem) “ and operated as a bar at the end of six yeai’S thereafter, although, the plaintiffs were ignorant of the existence of the fact which entitled them to the reínedy. ” Such is the present case. (Allen v. Miller, 17 Wend., 202.) The right of the owners to redeem .in the present case expired in two years, but notwithstanding such right the purchaser was at once entitled to possession under his certificate, even before the conveyance. (Secs. 48, 49 and 50 of the act.)

It then became the duty of the defendants to repay the money whenever the purchaser was unable to obtain possession. And it is found by the court that such inability existed at once. They neglected to do so and thereupon the right of action arose. If it be claimed that a demand was necessary in order to show neglect, still the Code (§ 410) provides that the time under the statute of limitations must be computed from the time when the right to make the demand is complete, except in certain cases, not including this controversy. And this is a most reasonable provision.. If a person has a right requiring a demand in order to enable him to maintain an action, it would be unjust that by neglecting or intentionally postponing the making of the demand he should enlarge the time within which he could bring the action to any extent he might choose. • The contrary rule would allow this plaintiff to wait for fifty years and then make a demand on the defendants and, thereupon, bring an action within six years thereafter.

I think the judgment should be reversed.

Judgment affirmed, with costs.