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the action and that prior to the making of said contract "it was agreed between the plaintiff and defendant Sebring, that he would have 20 per cent. of the recovery, providing the case was not appealed after trial, but, if the action was appealed after a trial, that the plaintiff was to have 15 per cent. of the recovery, which said sum and percentages were to pay this plaintiff for his time, trouble, and expenses in procuring the business for the defendant Sebring."

The complaint then proceeds to allege: An action was brought against the railroad company, the case tried, and a recovery had, and that subsequently the proceeds of such judgment, amounting to $13,482, was deposited with the First National Bank of Olean, N. Y., to be distributed according to law. That the defendant Sebring denies any right of the plaintiff to participate in the distribution of said sum, or any right or interest therein. The plaintiff alleges that by virtue of his agreement with the defendant Sebring he is entitled to 15 per cent. of the recovery. He therefore prays for a judgment declaring he has a lien on the moneys now in the hands of the bank to the extent of 15 per cent. thereof, and that he is entitled to receive the same from the bank, and that the bank be restrained from paying out said fund, or any portion thereof.

The defendant Sebring demurs to the complaint on the ground it fails to state a cause of action against him, and urges, first, that the alleged agreement is void as in violation of section 270 of the Penal Law (Consol. Laws, c. 40), which provides as follows:

"It shall be unlawful for any natural person to practice or appear as attorney-at-law or as attorney and counselor at law for another in a court of record in this state or in any court in the city of New York, or to make it a business to practice as an attorney at law, or as an attorney and counselor at law for another in any of said courts, or to make it a business to solicit employment for a lawyer or to furnish attorneys or counsel or an attorney and counselor to render legal services. * * Any person violating the provisions of this section is guilty of a misdemeanor and it shall be the duty of the district attorneys to enforce the provisions of this section and to prosecute all violations thereof."

[1] There can be no question that, had this statute been in force at the time the alleged contract was made, it would have been in violation thereof and void. This provision of the Penal Law did not become a law until 1917, whereas the alleged contract was made prior to its passage. Consequently section 270 of the Penal Law cannot be deemed to take away or affect any right which may have been attached under the contract. The section is not retroactive in its provisions. As much as contracts of the nature set up in the complaint are to be condemned, nevertheless the Court of Appeals, in Irwin v. Curie, 171 N. Y. 409, 64 N. E. 161, 58 L. R. A. 830, has upheld their validity when sought to be enforced against an attorney.

[2] There is, however, another ground upon which it is urged the plaintiff is not entitled to recover in this action upon the complaint as it stands, and that, in substance, is that the plaintiff is not entitled to the equitable relief asked, or any other relief. In the last analysis. the complaint set up an agreement by and between the plaintiff and Sebring by which the plaintiff was to receive a percentage of the

(182 N.Y.S.)

recovery for procuring the business for Sebring. Then follow allegations to the effect that the defendant Sebring refuses to recognize the plaintiff's rights in the fund now on deposit with the bank defendant, followed by a prayer for judgment that the plaintiff may be declared to have

"a lien upon the money now in the hands of the First National Bank of Olean, N. Y., to the extent of 15 per cent. thereof under and by virtue of his contract with the defendant Long and the defendant Sebring, and that he be entitled to receive the same from said bank."

The action appears to be purely one in equity, seeking equitable relief, and the establishment of a lien on the recovery in favor of Mrs. Long. It is well established, however, that the plaintiff has no lien on a recovery such as was had in the action against the Pennsylvania Railroad Company. The statutory lien conferred by section 475 of the Judiciary Law (Consol. Laws, c. 30) is given to the attorney of record only. Weinstein v. Seidmann, 173 App. Div. 219, 159 N. Y. Supp. 371-citing Harding v. Conlon, 146 App. Div. 842, 846, 131 N. Y. Supp. 903; Schiefer v. Freygang, 141 App. Div. 236, 125 N. Y. Supp. 1037; Matter of Heinsheimer, 214 N. Y. 361, 108 N. E. 636, Ann. Cas. 1916E, 384; Matter of Rieser, 137 App. Div. 177, 121 N. Y. Supp. 1070.

Certainly a layman is given no lien whatever. If the law gives no lien, it is difficult to see how one may be obtained by an action in equity. If the plaintiff has any cause of action, it would seem that it is purely a common-law action upon contract against the defendant Sebring. In such an action, if defended, each party would be entitled to a jury on the issues presented. Certainly we are unable to discover how the plaintiff can maintain his action in its present form.

We think the demurrer must be sustained. While we are unable to now see how by an amended complaint the plaintiff can convert his action into one at law, especially as against all the defendants now sued, nevertheless leave is given the plaintiff to serve an amended complaint, on payment of costs of the demurrer.

(194 App. Div. 5)

PARDEE v. RAYFIELD, District Superintendent of Schools, et al. (Supreme Court, Appellate Division, Fourth Department. May 5, 1920.) 1. Constitutional law 100-Taxpayer has no vested right in statutory privileges or immunities.

Citizen or taxpayer has no vested right in statutory privileges, exemptions, or immunity from taxation.

2. Taxation 25-Legislative power restricted only by state or federal Constitution.

Power and authority to impose taxes rests exclusively with Legislature, and is absolute, except as restricted by Constitution of state or nation; all incidents of taxation, except as restricted. being within its control and discretion.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. Constitutional law 186-Adjustment between school districts of money expended for construction not unconstitutional, though retroactive.

Fact that statute providing for adjustment of moneys expended in school construction between a town school unit and district units (Education Law [Consol. Laws, c. 16] § 11a, as added by Laws 1919, c. 561) is retroactive, does not make it unconstitutional.

4. Schools and school districts 108 (2) -Tax for expense of new schoolhouse could be levied against district as it existed prior to act of 1917.

Legislature had power, when it enacted town school unit law (Education Law, art. 11a, as added by Laws 1917, c. 328), to provide that expense of building a new schoolhouse in any district should all be paid by a tax charged against such district as it existed before the enactment of the law.

5. Constitutional law 100-Taxpayer without vested right to have tax apportionment remain unaltered.

Fact that Legislature, when it enacted town unit school law (Education Law, art. 11a, as added by Laws 1917, c. 328), did not make whole cost of school charge against district, but distributed it over whole town school unit, resulting in lower tax for taxpayers of such district, did not give taxpayer vested right to have tax remain unaltered; Education Law, § 11a, as added by Laws 1919, c. 561, providing for different apportionment being constitutional, Legislature having same discretion to reapportion burden as it had in first instance to determine tax district which should bear expense.

6. Constitutional law 193-Legislature may by curative act validate anything it could have authorized.

Legislature may validate retrospectively any proceeding which it might have authorized in advance, and may cure by subsequent statute what it might have dispensed with altogether.

Appeal from Special Term, Monroe County.

In the matter of the application of G. Herbert Pardee, individually and as taxpayer in School District No., 1 of the Town of Irondequoit, Monroe County, N. Y., and on behalf of all taxpayers in such district similarly situated, for a writ of prohibition against Hon. Wallace W. Rayfield, as District Superintendent of Schools of such district, and others. From an order denying the application, relator appeals. Affirmed.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Van Alstyne & Smyth, of Rochester, for relator.

Horace G. Pierce, of Rochester, for trustees of school district No. 1. John Van Voorhis Sons, of Rochester, for trustees of school district No. 4.

HUBBS, J. Chapter 328 of the Laws of 1917 changed the school system in this state from the district system into the town unit system. It placed all of the district schools, except union schools, under the management and control of a township school board, and the offices of the old school districts were abolished. Before the new town unit system had been in force for a year, chapter 328 of the Laws of 1917, under which it was created, was repealed by chapter 199 of the Laws of 1918, and the district system of schools was restored. Chapter 183 of the Laws of 1919 amended chapter 199 of the Laws of 1918, by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

enacting a new section (section 7a), which provided that the obligation of bonds issued by the town boards of education should not be impaired, but that, when issued for the benefit of the schools of a town generally, the obligation should be apportioned among the school districts of the town in proportion to the benefits received. It also provided that, when bonds had been issued for the erection of a new school building within a particular district, such bonds should be a charge upon the particular district wherein the new building was erected.

It will be noted that this statute only provided for cases where there was an outstanding indebtedness, evidenced by bonds or other evidences of indebtedness. Chapter 561 of the Laws of 1919, by section 11a, provided, however, that:

"In a town or a town school unit in which the financial affairs have not been settled * * and where it appears that the board of education of such town or town school unit constructed * * a school building in

a district of such town or town school unit and paid for the same out of its annual tax budget without issuing bonds therefor * there shall be an adjustment of the moneys received and expended on account of the several school districts in said town or town school unit in the following man

ner.

The statute then provided a method by which the Legislature sought to bring about an—

"equal adjustment as between the several school districts of such town or town school unit in accordance with the burdens imposed upon and benefits received by each of such districts."

This last statute sought to provide for an equitable adjustment between districts in cases where a new school building had been erected and fully paid for. The scheme of the statutes referred to, construed together, was, in brief, as follows:

(1) To abolish the old school district system and substitute in its place the town school unit system.

(2) To abolish the new town school unit system, so provided for, and to restore the old district system.

(3) To provide for an equitable distribution of bonded indebtedness contracted while the town unit system was in operation.

(4) To provide for an equitable adjustment between the school districts, according to the burdens imposed and benefits received, where new school buildings had been erected and fully paid for out of the annual tax budget of the town school unit.

When the town unit system went into effect under chapter 328 of the Laws of 1917, there were, in the town of Irondequoit, five school districts. The new town unit system had jurisdiction over all of these districts except No. 3, which was a union school district. The new board of education, under the town unit system, took office on August 1, 1917. . Prior thereto, and on June 19, 1917, the schoolhouse in district No. 1 was destroyed by fire. On July 6, 1917, at a meeting of the taxpayers of the district a resolution was duly passed authorizing the trustees of said district to build a new schoolhouse at an expense of not to exceed $7,000, the amount of money on hand.

After the board of education for the town came into office on August 1, 1917, contracts were let and the building was erected at a cost of about $11,000. The $7,000 on hand in district No. 1 was applied in part payment of the $11,000 and the balance was included in the annual budget by the board of education of the town and was duly collected from the taxpayers of said town school unit, made up of said four old school districts. The $4,000 so collected was used to pay the balance due for said new school building in old district No. 1. Thereafter proceedings were started, under section 11a of chapter 561 of the Laws of 1919, to have the school commissioner of the district"make an apportionment among the several school districts of the town [school unit], so that there shall be a fair and equal adjustment as between the several school districts of such * ** school unit, in accordance with the burdens imposed upon and benefits received by each of such districts."

The school commissioner started to hold a hearing, in accordance with said statute, when the relator sued out a writ of prohibition. Upon the return of the writ, the Special Term dismissed the same, and the relator has appealed to this court.

It is earnestly urged by the counsel for the relator that the said school commissioner is without jurisdiction to act in the premises, because said section 11a of chapter 561 of the Laws of 1919 is unconstitutional and void. While the arguments of the relator are stated in various forms, they are all based, in substance, upon the proposition that relator is immune from further taxation on account of the expense of building the schoolhouse, because he has paid the tax legally levied by the town board of education, that the action of said board was final, judicial, and established in him a contract right not to be taxed further for the same purpose; that such right is a vested right, not subject to be disturbed by an act of the Legislature; and that the act in question is retroactive and void under the federal and state Constitutions.

[1] There is no claim that the relator had an express contract of immunity from further liability to pay a tax on account of the new school building. If the relator and the other taxpayers of school district No. 1 are exempt from further taxation on account of the expense of constructing said school building, it must be because of some constitutional provision giving such exemption. There is no such constitutional right as is contended for by the relator. A citizen or taxpayer has no vested right in statutory privileges, exemptions, or immunity from taxation. 12 Corpus Juris, 968; Brearley School, Limited, v. Ward, 201 N. Y. 358, 94 N. E. 1001, 40 L. R. A. (N. S.) 1215, Ann. Cas. 1912B, 251; Durrett v. Davidson, 122 Ky. 851, 93 S. W. 25. 8 L. R. A. (N. S.) 546.

The whole argument of the relator is based upon a misconception of the sovereign power of the Legislature to tax. Every question raised upon this appeal has been frequently raised and passed upon by the courts. They are old questions under a new and unusual state of facts. Nevertheless under the old and oft-restated principles, governing the power and authority of the state to tax and the construction of the tax laws by the courts, must be found the principles which are

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