SESSION LAWS - Continued.
4. 1901, Ch. 466- New York city charter - Eminent domain - Pay- ment of interest on land taken by city prior to completion of condemnation proceedings. The provisions of the Greater New York charter (L. 1901, ch. 466, § 990), relating to the payment of interest in cases where the city appropriates land prior to the conclusion of condemnation proceedings involve the payment of compound interest by the city from the date of the commissioners' report. Where, however, a supplemental report was made by the commissioners making the award to unknown owners, held, that interest on the value of the land should be calculated to the date of the second report, and such interest, together with the value of the land, should become a new principal on which the landowner should be awarded interest until the payment of his claim by the city. Matter of Mott Haven Canal Docks. 175
5. 1907, Ch. 185- Principal and surety - Indemnity bonds - Bond given by agent receiving money for transmission abroad — Parties to action against surety upon agent's default. This action is brought on a bond given, pursuant to chapter 185 of the Laws of 1907, by a person engaged in selling steamship tickets and receiving deposits of money for trans- mission to foreign countries, conditioned for the faithful holding and transmission by him of such moneys and the due accounting therefor, which bond was signed by him and the defendant, a surety company. The principal in the bond converted the moneys so received by him from a large number of persons and to an amount in excess of the penalty of the bond. The plaintiff brings this action against the surety company, impleaded with the principal, on behalf of himself and all others similarly interested, to prove their rights to participate in the proceeds of the bond, and to compel defendant to pay over such proceeds pro rata to himself and such other persons as may become parties and exhibit and prove their claims. Held, that as the bond is for the benefit of every person who deposited money with such agent, the court will exercise its equitable powers to prevent the amount of the penalty thereof being paid to some of the persons defrauded to the exclusion of others equally entitled to pay- ment therefrom, that the facts stated in the complaint constitute a cause of action, and that the action was properly brought by plaintiff on behalf of himself and all others similarly situated. Guffanti v. National Surety
6. Idem Constitutional law - Validity of chapter 185, Laws of 1907, regulating the taking of deposits for transmission to foreign countries. Chap- ter 185 of the Laws of 1907, entitled “An act to regulate the taking of deposits by certain persons, firms and corporations," is constitutional in subjecting to regulation the particular class of persons designated by the statute. The regulation of the business of receiving deposits of money is plainly within the power possessed by the state to regulate the conduct of various pursuits, when necessary for the protection of the public. The statute does not improperly discriminate against the class of persons engaged in selling steamship tickets, who in conjunction with such busi- ness carry on the business of receiving deposits of money for future transmission to foreign countries, and in favor of others. An individual may waive even a constitutional provision for his benefit, when no question of public policy or public morals is involved, and where a person, engaged in the business of selling steamship tickets to foreign countries, and desiring to carry on, in conjunction therewith, the business of receiv- ing deposits of money for the purpose of transmitting it to foreign coun tries, gave, pursuant to chapter 185 of the Laws of 1907, a bond to the People of the state, with a surety, for the faithful holding and transmis- sion of all moneys delivered to him for that purpose, he thereby waived the right to question the constitutionality of the statute, and his surety is estopped from raising that question in an action, thereafter brought against it, upon the principal's defalcation by those who made deposits on the faith of the undertaking. The fact that the statute provides that a
person, who carries on the business of receiving deposits of money for transmission to foreign countries, without giving such bond shall be guilty of a misdemeanor, does not constitute a duress which relieves the princi- pal and surety who executed the bond in question from the imputation of having voluntarily waived the invalidity, if any, of the statute. The statute is not unconstitutional as infringing on the exclusive right of Congress to regulate foreign and interstate commerce. Although in a limited degree affecting interstate commerce, it is not for that reason a needless intrusion upon the Federal jurisdiction or strictly a regulation of interstate commerce, but is to be considered as an ordinary police regula- tion and, therefore, not invalid. Musco v. United Surety Co.
7. Public service commission When without authority to refuse per- mission to construct railroad. The public service commission determined that the public interest required the construction and operation of a rail- road upon the route over which the relator had acquired a franchise, but recommended that the permission and approval of the commission be with- held because of the limitations imposed by the municipal authorities of the city of New York upon the franchise contract. Held, that so far as the consent of the municipal authorities to the construction of the pro- posed line may be limited by conditions which are in conflict with the pro- visions of the Public Service Commissions Law, the statute must prevail and the public service commission was without authority to refuse to the relator the certificate provided for in section 53 of the Public Service Commissions Law. People ex rel. South Shore Traction Co. v. Willcox. 212
8. 1908, Ch. 429 — Statute prohibiting pumping of subterranean mineral waters-construction. Chapter 429 of the Laws of 1908 does not operate to prohibit, as unlawful, all pumping from wells bored into the rock, of mineral waters holding in solution mineral salts and an excess of carbonic acid gas, for the purpose of extracting, liquefying or vending, separately, such gas as an article of commerce, and the prohibition is not to be enforced irrespective of whether the use by the defendants of their prop- erties is a reasonable one or not, relatively to the legal rights of other landowners. People v. N. Y. Carbonic Acid Gas Co.
9. Idem Regulation of use of percolating waters within police powers. The act and the authority to enforce it by an action in the name of the People are to be construed, not as intending to exercise governmental power arbitrarily, but as promulgating a rule, with authority to a tax- payer, or to the law officer of the state, to enforce obedience to it by an action which should regulate the appropriation and use of the common natural supply by owners of lands coming within the provisions of the statute. It is quite within a reasonable exercise of the police power to regulate such rights.
10. 1909, Ch. 31 — Indian Law — Provision authorizing Seneca nation to maintain actions in reference to real estate on reservation. Section 55 of the Indian Law (Cons. Laws, ch. 26, § 54) authorizes the Seneca nation of Indians to bring certain actions with reference to real estate on their reservations, but provides that nothing therein contained shall enlarge or in any way affect the right, title or interest of the Seneca nation, or of such Indians in and to such reservations, as between them and the grantees or assignees of the pre-emption right of such reservations under the grants of the state of Massachusetts. Seneca Nation v. Appleby. 318
11. Idem - Purpose of statutory provision. The complaint herein alleges possession and ownership by the Seneca nation in fee of lands on its res- ervations and that defendant claims title thereto under various mesne con- veyances from the state of Massachusetts, and prayed judgment that defendant be barred from all interest therein. Defendant set forth his claim as successor in interest of the right of pre-emption of that state to own the lands in fee subject only to plaintiff's right of occupancy. Held,
SESSION LAWS - Continued.
that the only purpose of the statutory provision. is to enable the Indian nation to protect the occupancy and possession of its lands and recover indemnity from any persons who have violated that right; that plaintiff has no right to sue upon the cause of action alleged in the complaint and the court is prohibited by statute from determining the controversy. Id.
12. 1909, Ch. 36- Labor Law · construction of provision requiring that "machinery of every description" in factories should be guarded-accident from a necessary and obvious danger. The purpose of the Labor Law, in directing that certain appliances therein named and "machinery of every description" in factories, should be guarded, is to protect employees from unnecessary and hidden dangers. Where, however, danger to employees does not exist or is not to be reasonably expected it is not necessary, under the statute, for employers to guard even the machines or appliances enumerated therein. Wynkoop v. Ludlow Valve Mfg. Co. 324
13. 1909, Ch. 61 — Stock Corporation Law - Statutory right of stock- holders to inspect books of corporations and make transcripts thereof. Section 53 of the Stock Corporation Law (Cons. Laws, ch. 58, § 33) recog- nizes an absolute right in a stockholder to inspect the books of a corpora- tion and imposes an absolute duty upon the corporation and the custodian of the stock book to permit such inspection. The stockholder has a right to take memoranda therefrom in the course of his examination in order to assist his recollection. Henry v. Babcock & Wilcox Co.
14. 1909, Ch. 74 — Defective assessment — Curative act ality. Chapter 74 of the Laws of 1909 is curative in part, but, as it also provides for the completion of an imperfect assessment duly commenced under a valid statute but not finished because notice had not been given nor an opportunity to be heard afforded, as required by the Tax Law, to this extent it is in the nature of an act authorizing a reassessment. The legislature has power to authorize a reassessment, or the completion of an imperfect assessment, by doing something which should have been done before, but was not done in time, or not done at all. A curative statute acts directly upon a defective assessment and legalizes it without further procedure by the taxing officers. This may legally be done as to such features of the procedure as might have been omitted in the original statute without affecting its validity. When, however, the new act requires something more to be done by the taxing officers and legalizes the assessment, provided those acts are done, it provides for a reassess- ment, or the completion of the old assessment. Such legislation is valid, provided the original taxing act was valid and the omission sought to be remedied is not jurisdictional, but an irregularity. Hence the act in question is constitutional, both upon principle and authority, except as to one of its provisions. To the extent that this statute prohibits the court from giving relief in actions or proceedings pending when the act was passed on account of irregularities theretofore existing, it is uncon- stitutional, because in effect it legalizes the assessment, even if no oppor tunity to be heard is given as required by the other provisions of the act. That sentence, however, stands by itself, and is so separated from the rest of the statute in purpose and meaning that it may be eliminated without affecting the validity of the remainder. People ex rel. American Exchange Nat. Bank v. Purdy.
See McCrum v. Lex Realty Co. (Mem.), 499; Pratt v. Clark (Mem.), 502.
Of contract for sale of real property when delay beyond time appointed to close contract may be excused.
Construction and application of statute prohibiting pumping of subterranean mineral waters.
See WATERS AND WATERCOURSES, 1-7.
Statutes regulating legal remedies may apply to actions which have accrued or are pending as well as to future actions. Statutes regulating legal remedies are generally construed as operative upon an existing condition of things as well as upon conditions to arise after their enactment. Where a new statute deals with procedure only, prima facie it applies to all actions those which have accrued or are pending, and future actions. Laird v. Carton.
STOCKBROKERS.
See Jones v. Hoadley (Mem.), 512.
STOCKHOLDERS.
Statutory right of, to inspect books of corporations and make transcripts thereof.
See L. & B. R. R. R. Co. v. Elliott (Mem.), 545.
1. When public street, actually opened and in use, deemed to be closed under ordinance opening new street in place thereof. The intent of section 2 of chapter 1006 of the Laws of 1895, which provides for closing streets in certain cities, is that a street actually open and in public use shall so continue until the new street which is to take its place shall be physically opened and capable of such use; hence, owners of a street or roadbed in a city, where such statute is in force, may be restrained from closing or fencing the street or roadbed in front of their premises until such time as a new street shall be opened to take its place. Johnson & Co. v. Cox. 110
2. Real property - When easement in road not extinguished by opening of new street. The premises of the parties abut upon a road which has been in use for many years. In a partition deed by their predecessors in title this road was laid out on a map accompanying the deed of the premises, and made a part of it. The road was used by the tenants in common of the property prior to the partition deed and subsequent to the deed has been so used by their successors in interest. Held, that the plaintiff and the defendants, through their respective predecessors in interest, being grantees in the same partition deed, each received the grant of a private easement, which can only be acquired by a third party under condemnation proceedings, or a conveyance; that the easement so obtained is not extinguished by the laying out of the new street and the discontinuing the old one, and that one of the owners under the partition deed is entitled to enjoin other owners taking title thereby from inclosing or fencing in the land which forms a part of such roadbed in front of their property. Id.
3. Condemnation of fee of street - Erroneous award. The city of New York instituted proceedings to acquire the fee to lands upon which a street had been laid out and used. The owner had conveyed various parcels on both sides of the street but retained title to the fee of the street. Commissioners awarded a substantial sum to unknown owners. The entire award is claimed by both the purchaser of the fee of the street and by the abutting owners. Held, that no party is entitled to more than a nominal award and that so far as now appears none of the claimants are. justly or equitably entitled to any part of the fund so awarded. Hence the proceeding is remitted to the Special Term. Matter of City of New York.
1. Doctrine of, applicable to lien for taxes or assessments. There is nothing in the nature of a lien for taxes or assessments, or in the fact that such lien exists in favor of a sovereign taxing power, to prevent the application of the equitable doctrine of subrogation when justice demands it. Title Guarantee & Trust Co. v. Haven.
2. When bank entitled to be subrogated to lien of city for assessments paid by forged check. Defendants agreed to sell certain premises in the city of New York to plaintiff free and clear of all liens and incumbrances. Before the last payment was made, certain assessments for grading an avenue, which were levied during the lifetime of defendants' testatrix, were paid by a forged check drawn by an unknown person against the funds of one of plaintiff's depositors, which check was paid by plaintiff in the belief that it was genuine. On the discovery of the forgery plaintiff restored the amount of the forged check to the credit of the depositor against whose account the check had been drawn. Plaintiff brought this suit praying judgment that upon the payment of the assessments it became subrogated to the lien of the assessments upon the lands subject thereto, and that such lien remains in full force as between the parties to the action; that the lien attached to the moneys received by the defendants as the purchase price, which in equity represents the land; and that the plaintiff recover the amount of the assessments from the defendants. Held, that section 112 of the Negotiable Instruments Law has no application to these facts, and that upon the assumption that the payment of the assessment was purely gratuitous and in nowise in discharge of any real or supposed obligation upon the part of the person from whose account the money was paid or of the unknown forger, but was brought about solely by mistake induced by the forgery, plaintiff is entitled to be subrogated to the lien of the city as against the proceeds of the sale of the land in the hands of the defendants. Id.
3. When bank not entitled to be subrogated to lien of city for taxes paid by forged check. Upon the same state of facts in other respects, where a forged check was used to pay taxes, instead of assessments, levied during the lifetime of defendants' testatrix, and which were her personal debts, the money represented by the check cannot be regarded as having been applied to relieve the devised premises from a lien; this fact prevents the equitable doctrine of subrogation from being available to plaintiff. Id.
SUPPLEMENTARY PROCEEDINGS.
Corporations Improper service of order in supplementary proceedings upon foreign corporation. It is not sufficient service of an order in supplementary proceedings, by which a foreign corporation is required to make discovery on oath concerning its property, to deliver such order to a person designated by the corporation as one upon whom a summons might be served in accordance with the General Corporation Law and section 432 of the Code of Civil Procedure, but such service must be made in accordance with section 2452 of the Code upon an officer of the corporation. Matter of Meyer v. Consolidated Ice Co.
Power of, to review action of state board of tax commissioners - what must be considered by Appellate Division.
SURPLUS MONEY.
See Greason v. Holcomb (Mem.), 571.
1 Franchise tax on corporations - Power of Supreme Court to review action of state board of tax commissioners. The power conferred upon the Supreme Court to review the action of the state board of tax commission.
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