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CONSTRUCTION OF STATUTE.
Decided May 22, 1877.
If there is a plain contrariety between two acts
of the legislature, so as clearly to indicate an intention to repeal the earlier act, it is sufficient to repeal it, although the latter act
contained no express words of repeal.
This was a motion for re-argument. Chapter 213, Laws of 1859, is by its title declared to be amendatory of former acts in relation to assessments for local improvements in the city of Brooklyn, and provides that no proceeding for improving streets should be taken by the Common Council of said city, except as therein provided. Chapter 444, Laws of 1860, professes by its title to amend the act of 1859. Chapter 169, Laws of 1861, was enacted as "An act relative to local improvements in the city of Brooklyn," and does not by its title, or in the body of the act, profess to amend or be supplementary to any other act, out provides for the improving of streets in a manner different and in some particulars contrary to the provisions of the Act of 1859 as amended by the Act of 1860.
same subject when and only to the
Motion for re-argument denied.
N. Y. COURT OF APPEALS.
In proceedings by a railroad company to acquire lands, the petition must contain an accurate description of the property; defects in the description in the petition cannot be remedied by reference to another instrument.
In proceedings by a railroad corporation to acquire lands under Chapter 140, Laws of 1850, as amended by Chapter 237, Laws of 1869, the provision of the statute (§ 14, chap. 140, Laws 1850) that the petition must contain a description of the real estate sought to be acquired is not complied with unless the description is such as will show the location of the land and its boundaries. The description must be contained in the petition, and reference to another document cannot be had to remedy defects in the description.
P. S. Crooke, for motion.
Held, That the Act of 1861 repealed the former act so far as full provision was made in it for local improvements. If there is a plain contrariety between two acts of the legislature so as clearly to indicate an intention to repeal the earlier act, it is sufficient to repeal it, although the later act contained no express words of repeal.
The rule that a later statute only repeals a former statute upon the no part.
Order of General Term, affirming order of Special Term appointing commissioners, reversed.
Per curiam opinion.
All concur, except Allen, J., taking
any property taken, with the owners' names and amount of damages awarded, and a general description of the property. They only stated the owner's names, with amounts awarded to and assessed against each. Their return shows that they examined the property, had it surveyed and mapped, showing the feet and inches owned
No costs are allowable on a common law cer- by each person; that this map, which was annexed to their return, was their guide in ascertaining the quantity of land of each person to be taken for the improvement. The commissioners were regularly appointed.
A. Pond, for motion.
N. Y. COURT OF APPEALS. People ex rel. Kilmer et al., applts., v. Cheritree et al., respts.
Decided June 12, 1877.
The legislature may legalize the irregular or even void acts of commissioners appointed
to condemn lands for public use.
This was an appeal from a judgment of General Term rendered upon common law certiorari brought to review the report of commissioners of assessments in proceedings, to take lands in invitum.
This was a motion for a re-argument upon the merits, on the assumption that the Court overlooked the fact that, in this case, land was taken for public use, and that the proceed ings of the commissioners appointed to appraise the lands, having been held invalid, the legislature could not confirm their proceedings; that their report was a nullity, and when the act confirming the proceedings was passed (Chap. 256, Laws of 1874) no land had been taken for public use, and that giving effect to that act results in allowing the legislature itself to take the land and make the appraisal in violation of section 7 of article 1 of the Constitution, which provides that the compensation for land taken for public use, when not to be made by the State, shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record. The commissioners failed to comply with the provision of the act, which required them to state in their report the quantity of land, and the value of
Held, That although the commissioners failed to comply with some of the formalities of the original act, they having been regularly appointed, the awards having been måde by thom, the legislature had the power to cure the defects in their proceedings.
The judgment appealed from was with costs. This court affirmed the judgment below without costs, on the ground that the confirmatory act was passed after this proceeding was instituted. The appellant's counsel insisted that for the same reason the judgment of the General Term should be modified by striking out the award of costs to respondent.
Held, That costs are not allowable on a common law certiorari.
Motion denied, but remittitur. amended so as to modify the judgment appealed from by striking out the allowance of costs.
Per curiam opinion. All concur.
N. Y. COURT OF APPEALS.
Decided June 12, 1877.
assessment has been made and confirmed by
a board of officers, no action will lie against
the corporation until after the assessment is confirmed, even though the board wrongfully refused to proceed with the assessment; the party aggrieved should proceed against the board by certiorari, mandamus or other proper remedy.
A muncipal corporation is not liable for the negligence or omission in the discharge of his public duties of a public officer.
certify them to the Common Council,
Jno. H. Strahan, for applt.
Plaintiff's intestate contracted with defendant to do some work on one of its streets, the expenses of which were to be ultimately assessed upon the property benefitted. An ordinance passed some time before was referred to in the contract, and made a part of it. This ordinance regulated the mode of making payments
Held, That plaintiff could not sue the city for the final payment upon the contract until a confirmation. thereof by competent authority; that if said board returned the assessment for a reason wrong in fact or law, they still acted in a matter over which they had jurisdiction, and if their directions were illegal, the as
on such contracts, and provided sub-sessors might disobey them, and stantially that the final payment again certify the assessment lists to should not be made until the assess- them, or any party aggrieved could ment for the work had been con- review their action by certiorari; or firmed by the common council. This they and the Board of Assessors could action was brought to recover the by mandamus be compelled to take final payment on the contract, and such legal action as was necessary to the defence was that the assessment complete and confirm the assessment had not been laid or confirmed. It lists. In the discharge of its duty was provided by Chapter 302, Laws of the Board of Revision and Correction 1859, that three commissioners should acted as independent public officers, be appointed by the Comptroller of engaged in the public service, and the city, who should form a board, to for any negligence or omission in the be designated "Commissioners of discharge of their duties no action Taxes and Assessments" and that would lie against the city, and it was they should appoint a "Board of not estopped from setting up the Assessors," who should make the want of confirmation of the assessestimates and assessments for streets, ment as a defence. Dil. on M. Corp., and other local improvements, and § 772, 62 N. Y., 164.
Judgment of General Term, affirming judgment for defendant, affirmed. Opinion by Earl, J. All concur, except Miller, J., dissenting.
Dean v. Hyatt.
Decided June, 1877.
In order to support a conviction for contempt of an injunction in proceedings supplementary to execution, the legal title to the property, the transfer of which forms the contempt, must be proven to be in the ac
About sixteen years ago defendant purchased a farm for $7,000. He paid $2,000 in money and $5,000 by bond and mortgage on the farm. The $2,000 belonged to his wife. He however took the deed of conveyance in his own name. In 1870 defendant conveyed the property to his wife through a third person. She subsequently paid $1,000 on the mortgage. The buildings on the farm were insured before this transfer in the name of defendant, but the policy was not changed after it. In 1875 the buildings were destroyed by fire. The loss was paid by the insurance company by a draft to the order of defendant, which he endorsed to his wife and deposited to her credit. All but $200 of this was used in rebuilding. In 1874 defendant became indebted to plaintiff for oxen sold defendant. In July, 1875, judgment in this action was obtained against defendant for this indebtedness. An execution was issued and returned unsatisfied. On August 18, 1875, an order in proceedings supplemental to
execution was granted, restraining defendant from transferring or making any disposition or in any way interfering with any of his property until further order. This was served on defendant; August 20, 1875. On August 26, the defendant drew a check on the bank in his wife's name at her request payable to one Frost for a debt of defendant's wife. This check was to be paid by part of the $200 remaining of the $1,500.
The defendant was adjudged guil ty of a violation of the order and of a contempt of Court, fined $307.90. and ordered to pay $70 costs. From this order he appeals.
Held, The money was a part of the insurance paid. The plea that the policy was in defendant's name might have enabled the Insurance Company to have avoided payment, but is of no avail here. Of no more avail is the plea that the draft was payable to defendant's order. Defendant's duty in the premises was to transfer the draft by indorsement and delivery to his wife, and this he did and the legal title passed and vested in the wife. The legal title to the buildings was in the wife and as between her and her husband the money received for their loss belonged to her. Plaintiff's case is not aided by the plea that the transfer of the farm and of the draft was in fraud of the rights of creditors. If this be so, a proper action being brought, this transfer would be set aside. But the defendant has been punished for transferring his property after the Court had commanded him not to do so, and to support the conviction it must be shown that he did so transfer. The facts show that he had not the legal title to that which
he transferred. Conviction reversed is her right and the denial was erwith costs. roneous. The allegations that deOpinion by Dykman, J. All con- fendant is a married woman, and that the materials furnished were for the benefit of her separate estate are special and proper in a complaint in an action at law against a married
N. Y. SUPREME COURT.
Decided June, 1877.
The demand for a money judgment shows this to be an action for the recovery of money only. The prayer for the application of the separate estate to the payment of the judg
Where, in an action against a married woman for goods sold, the complaint demands that her separate estate be applied to the payment and for the appointment of a ment of the judgment, and that a receiver receiver does not change this fact. of such estate be appointed, the action is not thereby changed to an equitable one so The provisions of §§ 274 and 287 of as to deprive her of her right to a trial by the Code show that the judgment demanded in this action may be entered and enforced against defendant as if she were single by a procedure appropriate to an action at law. This action is then one at law and the right of the defendant to a trial by jury is perfect and can not be denied.
The complaint in this action alleges that defendant is a married woman: that she owns in fee a lot of land therein described; that the plaintiff sold to her at her request lumber and building materials worth $901.97; that $400 only has been paid; that said materials were furnished for the benefit of, and did benefit defendant's separate estate, and were used in construction of buildings on said real estate. That $500 and interest is now due and owing plaintiff, for which sum and costs judgment is demanded; 'plaintiff also demands that defendant's separate estate be applied to the payment of the judgment, and that a receiver be appointed to take possession of these premises. The summons is for relief. At Special Term a motion was made on the part of defendant to strike the cause from the calendar of that Court and was denied, and this appeal is from that denial.
Held, The motion was based on the right of the defendant to a trial by jury. If this be an action at law this
Order reversed with costs.
CITY COURT OF BROOKLYN.
Decided August, 1877.
to a third party who assumes the payment of the mortgage, the mortgagee must foreclose the mortgage when due if requested to do so by the mortgagor; and in case of refusal or neglect so to do and subsequent depreciation in value of the property, the mortgagor will not be liable for a deficiency. The defendant McCrum, after making the mortgage in suit, conveyed the mortgaged premises to defendant Weinberg, she assuming the payment of the mortgage. Upon the