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CASES AND AMENDMENTS, 1902-1903.
Art. 1, $ 2. Trial by jury. (C. & G. Gen. Laws, p. 39.) Action by executor to enforce common-law action.— The act of the General Assembly of the colony of New York, passed December 31, 1768, authorized a reference of cases involving the examination of long accounts, “ other than in such cases as shall be brought by or against executors or administrators," revived by an act passed on February 16, 1771, was continued in force by virtue of section 35 of the Constitution of 1777. It follows, therefore, that under the above section the legislature has no power to authorize the court to order, against the will of the plaintiff, a reference in an action brought by an executor or administrator to enforce a common-law liability. Malone v. Saints Peter and Paul Church, 69 App. Div. 420, 74 N. Y. Supp. 1005.
Art. I, $ 6. Bill of rights. (C. & G. Gen. Laws, p. 40.) Due process of law.- A cause of action is property, and to take this property from the plaintiff by means of an amendment of the defendant's answer in a manner and form in which the defendants themselves could not have done in the first instance, is to deprive him of his property without due process of law, in disregard of section 6 of article 1 of the Constitution. Seaman v. Clark, 60 App. Div. 416, 69 N. Y. Supp. 1002.
A statute abolishing a village.— An act (L. 1900, ch. 655) incorporating the village of Lansingburgh with the city of Troy, and abolishing such village, cannot deprive a person of a remedy which he may have then had against such village. To construe such a statute so as to take away such remedy would be depriving him of his property without due process of law. Tyler v. Village of Lansingburgh, 37 Misc. 604, 76 N. Y. Supp. 139, affirmed, 76 App. Div. 165, 78 N. Y. Supp. 433.
Abolition of grade crossings; rights of abutting owners.-- The owners of property abutting upon streets, although their title extends only to the margin thereof, have incorporeal rights of light, air and access in the nature of easements in the streets themselves, which constitute private property, and the legislature cannot authorize the taking away of the same without compensation. A statute authorizing the construction of an overhead crossing in a street (L. 1880, ch. 147), cannot be construed as depriving such owners of their right of compensation. Egerer v. N. Y. C. & H. R. R. R. Co., 70 App. Div. 421, 75 N. Y. Supp. 476.
Revocation of liquor tax certificate.- A statute authorizing the revocation of a liquor tax certificate upon a petition without proof of any of the allegations thereof, in case the certificate holder does not submit a verified answer is unconstitutional. A liquor tax certificate repre
Bill of rights, art. I, $ 6. sents a species of property which is transferable by the owner and which is accordingly protected by the general rules of law in any proceeding having for its object the forfeiture or destruction of the rights which it confers. Matter of Cullinan (Kray certificate), 82 App. Div. 445, 81 N. Y. Supp. 567.
Right to a hearing on assessments.- Section 208 of the charter of the village of New Rochelle (L. 1899, ch. 128), fixing the amount of sewerage assessments upon abutting property at a definite sum per front foot, is not unconstitutional and void as involving a taking of property without due process of law because it fails to provide for a hearing as benefits, or the justice and equity of the principle upon which the burden is to be imposed, and is a valid exercise of legislative power. People ex rel. Scott v. Pitt, 169 N. Y. 521.
Notice of suit against village.- The provision of a village charter requiring notice to be filed with a village clerk within forty-eight hours after an injury was received in order to maintain an action against such village for such injury places an unreasonable limitation upon the rights of a person who sustains injuries in consequence of the negligence of a village, and is unconstitutional in that it deprives him of his property without due process of law. Barry v. Village of Port Jervis, 64 App. Div. 268, 72 N. Y. Supp. 104.
Free access to the courts.- The above section of the Constitution in conjunction with section 1 of article I and section 16 of article I of the Constitution show that the intent of the Constitution is to guarantee to every citizen free access to the courts and a full opportunity to have a judicial determination of all controversies which might involve his rights, whether such rights were the outgrowth of contracts or of violated duty. Section 16 of title 7 of the charter of the village of Port Chester (L. 1894, ch. 623), requiring a presentation of a claim in writing to the president of the village within thirty days after the time the injuries were received, because of which the claim is made, is unconstitutional, in so far as it assumes to prevent a person from maintaining an action against the village to recover damages for such injuries if his failure to present his claim within the required time is caused by the serious nature of the injuries. As applied to such a case the limitation is unreasonable and operates to deprive the injured person of his property without due process of law. Williams v. Village of Port Chester, 72 App. Div. 505, 76 N. Y. Supp. 631.
Compelling person to become witness against himself.— The admission in evidence upon the trial of an indictment under section 344a of the Penal Code, relating to policy playing, of private papers and property belonging to the defendant, alleged to have been unlawfully seized by police officers and introduced by the prosecution for the purpose of establishing his handwriting on certain policy slips, and to show that the office in which they were found was occupied by him, does not compel him to become a witness against himself in violation of the above section of the Constitution. People v. Adams, 176 N. Y. 351, affirming, S5 App. Div. 390, 83. N. Y. Supp. 481.
Under the provisions of this section that no person shall be comBill of rights, art. I, § 6. pelled in any criminal case to be a witness against himself,” such person is not obliged to answer questions in any criminal case, either against himself, or another party, when he states that his answers might tend to incriminate him; except where the court can see that his refusal to answer is clearly a fraudulent device to protect a third person, and that the witness is in no possible danger of disclosing facts that would lead to his own indictment and conviction, he is his own judge as to whether or not he will answer. Section 342 of the Penal Code providing that “no person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter upon the ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding,” is not co-extensive with the constitutional provision and does not afford a witness the protection contemplated thereby, in that it does not prevent the use of evidence against him which may be obtained through his testimony, but simply excludes such testimony. People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, affirming, 81 App. Div. 51, 80 N. Y. Supp. 816.
Limitation as to police power of legislature.- While the police power of the legislature has its limitations, each of which cannot be accurately stated, except as required by the particular case under review, generally speaking, the following propositions as to legislation relating to articles of food may be deduced from the authorities: (1) That the legislature cannot forbid or wholly prevent the sale of a wholesome article of food; (2) that the legislation intended and reasonably adapted to prevent an article being manufactured in limitation or semblance of a wellknown article in common use and thus imposing upon consumers or purchasers is valid; (3) that, in the interest of public health, the legislature may declare articles of food not complying with a specified standard unwholesome and forbid their sale. People v. Biesecker, 169 N. Y. 53.
Limiting hours of labor in bakeries.— Section 110 of the Labor Law limiting the hours of labor in a bakery or a confectionery establishment to sixty hours in any one week or ten hours in any one day is a proper exercise of the police power of the legislature relating to the public health and violates no provision of this section of the Constitution. People v. Lochner, 177 N. Y. 145, affirming, 73 App. Div. 120, 76 N. Y. Supp. 396.
Class legislation.- Section 640d of the Penal Code as added by chapter 128, Laws 1901, which provides that in cities of the first and second class any person who shall offer real estate for sale without the written authority of the owner, is guilty of a misdemeanor, is constitutional and a reasonable exercise of the police power. Criminal laws are not necessarily unconstitutional because they bear unequally upon persons in different parts of the State. Whiteley v. Terry, 83 App. Div. 196, 197, 82 N. Y. Supp. 89, but see contra Grossman v. Caminez, 79 App. Div. 15, 79 N. Y. Supp. 900.
Use of United States flag.-- A statute which forbids the use of a picture or representation of the United States flag in connection with
Freedom of speech, art. I, § 8; damages, art. I. $ 18.
an advertisement of merchandise or with trade marks or trade labels is unconstitutional as infringing upon the personal liberty of citizens. People ex rel. MePike v. Van De Carr, 91 App. Div. 20 N. Y. Supp., affirmed, 178 N. Y. 425.
An act prohibiting the posting of any advertisements upon fences (§ 610 Greater New York Charter), inclosing private property fronting on or adjacent to the public parks in a municipality without the consent of the municipal authorities in charge of the parks is unconstitutional. People v. Green, 85 App. Div. 400, 83 N. Y. Supp. 460.
A statute authorizing a modification of a decree or alimony is unconstitutional in so far as it attempts to affect a final and valid judgment rendered before the enactment of the statute. A final judgment granting a divorce and directing payment of a certain sum as alimony, and for the education and maintenance of the children creates and vests a substantial right, which constitutes property of which the wife cannot be deprived without due proces of law. Livingstone v. Livingstone, 173 N. Y. 377, affirming, 74 App. Div. 261, 77 N. Y. Supp. 476.
Trading stamp law.- Section 384p of the Penal Code, as added by L. 1900, ch. 768, making the issue of trading stamps and other devices a misdemeanor is unconstitutional. People ex rel. Madden v. Dycker, 72 App. Div. 308, 76 N. Y. Supp. 111.
Sale of real property without authority; statute unconstitutional.Grossman v. Caminez, 79 App. Div. 15, 79 N. Y. Supp. 900.
Art. I, § 8. Freedom of speech and press; criminal prosecutions for libel. (C. & G. Gen. Laws, p. 47.)
Freedom of speech or of the press.- No restraint is imposed by the above section upon the power of the legislature to punish publication of matter which is injurious to society according to the standard of the common law. It is, therefore, held that a person may be punished under section 675 of the Penal Code for the publication of a seditious article on the ground that such article “ seriously disturbs or endangers the public peace.” People v. Most, 171 N. Y. 423, affirming 71 App. Div. 160, 75 N. Y. Supp. 591.
Regulations of the fire department of the city of New York forbidding any member of the uniformed force to associate himself with any club, association or committee for the purpose of influencing legislation for the benefit of the members of the department, is not an abridgement of the constitutional rights of the members of such fire department, and, therefore, unconstitutional. People ex rel. Clifford v. Scannell, 74 App. Div. 406, 77 N. Y. Supp. 704, affirmed 173 N. Y. 606.
Art. I, § 18. Damages for injuries causing death. (C. & G. Gen. Laws, p. 51.)
A statute requiring notice where an action is brought against an employer to recover damages caused by the death of an employe L. 1902, ch. 600), does not violate the above section. The requirement as to