App. Div.] First Department, May, 1920. that the defendants herein be interpleaded, and an order was made to that effect. The plaintiff reframed his complaint, setting forth the facts above alleged, and demands judgment that the plaintiff be declared the true and lawful owner of said property and entitled to the possession thereof, and requiring the warehouse company to deliver over to the plaintiff the property. Although the bill of sale purports to be an absolute conveyance of the chattels to the plaintiff, Exhibit B annexed to the complaint shows that the property was transferred as security for a debt and that the same should be retransferred to the defendants on the payment of the debt. Thus the two papers (Exhibits A and B) construed together show that the real transaction was not a sale but a mortgage on the chattels. We are not advised by the complaint whether the defendants were interpleaded under section 103 of the General Business Law or section 820 of the Code of Civil Procedure. The plaintiff claims that he has reframed his complaint to state a cause of action in equity instead of a cause of action at law. The facts stated in this complaint demonstrate that the plaintiff, although he might be entitled to the possession of the chattels, is not the true and lawful owner thereof, but that if he took the same actually into his possession he would still hold them subject to the terms of the mortgage, and where a party holding collateral security for a loan comes into a court of equity for the purpose of enforcing payment of the loan from the collateral, the court will not direct delivery of the collateral to the plaintiff but will direct that the property be sold, and out of the proceeds of the sale the loan be discharged and the surplus of the proceeds of the sale, if any, be paid over to the owners thereof. In an action of this character Levin-Burgh, Inc., is a necessary party, in order that their debt may be discharged out of the proceeds of the sale. In my opinion, therefore, the demurrer was well founded, there is a defect of parties, and the complaint does not state a cause of action showing the defendants to be entitled to the equitable relief demanded. The order should be reversed, with ten dollars costs and disbursements, and the plaintiff's motion for judgment on the pleadings denied and defendants' cross-motion for an order Fourth Department, May, 1920. [Vol. 192. sustaining the demurrer and dismissing the complaint be granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within ten days. CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, plaintiff's motion for judgment on the pleadings denied, defendants' motion to sustain demurrer and dismiss complaint granted, with ten dollars costs, with leave to plaintiff to amend complaint on payment of said costs. In the Matter of the Application of FRED ROWE, Respondent, for a Writ of Mandamus. Elections A. E. RIDGEWAY, Appellant. Fourth Department, May 12, 1920. invalid vote for one officer not invalidating entire ballot. An entire ballot is not invalidated by the fact that the elector placed a cross in front of the name of a candidate for town clerk and then wrote in the name of another for the same office, but is invalid only as to the vote for town clerk. APPEAL by A. E. Ridgeway from an order of the Supreme Court, made at Special Term, granting the petitioner's application for a writ of mandamus. Roscoe Sargent, for the appellant. Miller & Bentley, for the respondent. William M. Gallagher, for the election commissioners. PER CURIAM: We think the decision of the trial justice was clearly right in regard to the ballots Exhibits 1 and 3. In fact, the decision in regard to those two ballots is not seriously questioned here. On ballot Exhibit 2 the voter made a cross mark before the name of Olive Ridgeway, a candidate for the office of town clerk. The voter also wrote in a name in the proper App. Div.] Fourth Department, May, 1920. place to vote for a person whose name did not appear on the ballot as a candidate for that office. The ballot shows upon its face, therefore, that the voter had attempted to vote for two persons for the office of town clerk: First, by placing a cross mark before the name of Olive Ridgeway; and, second, by writing in the name of a person in the proper place. The question is whether that made the whole ballot void or whether it made the ballot void only as to the office of town clerk. The Special Term has held that the ballot was valid except that the vote could not be counted for town clerk. We are satisfied that the proper conclusion was reached at Special Term. All concur, except DE ANGELIS and HUBBS, JJ., not voting. Order affirmed, with ten dollars costs and disbursements. I the Matter of the Application of G. HERBERT PARDEE, Individually and as a Taxpayer in School District No. One (1) of the Town of Irondequoit, Monroe County, New York, and on Behalf of All Other Taxpayers in Said District, Similarly Situated, for a Writ of Prohibition, Appellant, v. WALLACE W. RAYFIELD, as District Superintendent of Schools of District No. One (1) of Monroe County, New York, and Others, Respondents, Impleaded with FRED LAUTERBACH and Others, as Trustees of School District No. One, Appellants. Fourth Department, May 5, 1920. Schools-constitutional law-validity of section 11-a of chapter 199 of the Laws of 1918, as added by chapter 561 of the Laws of 1919writ of prohibition - adjustment between several school districts of township unit of cost of construction of schoolhouse in one district. Section 11-a of chapter 199 of the Laws of 1918, as added by chapter 561 of the Laws of 1919, enacted for the purpose of making "a fair and 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" of the amount raised by the board of education of the town under the Town Unit School Law by an assess Fourth Department, May, 1920. [Vol. 192. ment against the entire school unit to pay for the erection of a schoolhouse in one district, is constitutional, and, hence, a taxpayer in said district is not entitled to a writ of prohibition to prevent the district superintendent from holding a hearing in accordance with the statute. The relator by paying taxes which were legally levied by the town board of education, and used in part for the erection of said schoolhouse, did not acquire a vested right so that he could not be again taxed as a member of the district to pay back to the other districts such portion of the moneys raised in said districts and used for the erection of said schoolhouse as might be determined by the district superintendent in making an equitable adjustment under the statute. The power to impose taxes which is vested in the Legislature is exclusive and absolute except as restricted by the Federal or State Constitution and it is for the Legislature to determine and its determination is final, within said restriction, upon all matters involving the purpose of a tax, its extent, apportionment, upon what property or class of persons it shall operate, whether it shall be general or limited and the time and manner of its collection. The fact that the said statute is retroactive does not make it unconstitutional. While the Legislature undoubtedly had the power when it enacted the Town Unit School Law (Laws of 1917, chap. 328) to provide that the expense of building a new schoolhouse in a district should be borne entirely by that district, it distributed over the entire unit the cost of the schoolhouse erected in relator's district which resulted in a lower tax for the relator, but that fact did not give the relator a vested right to have the said tax remain unaltered, and the Legislature had the same discretion to reapportion such burden as it had in the first instance to determine the tax district which should bear the expense of the new building; what it could have done in the first instance it could do by subsequent enactment. APPEAL by the relator, G. Herbert Pardee, individually and as taxpayer, and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 26th day of December, 1919, denying relator's application for a writ of prohibition. Van Alstyne & Smyth, for the relator, G. Herbert Pardee. Horace G. Pierce, for the trustees of school district No. 1, appellant. John Van Voorhis' Sons [Eugene Van Voorhis of counsel], for the trustees of school district No. 4, respondent. HUBBS, J.: Chapter 328 of the Laws of 1917 (adding to Education Law, art. 11-a) changed the school system in this State from App. Div.] Fourth Department, May, 1920. the district system into the town unit system. It placed all of the district schools, except union free schools as therein specified, under the management and control of a township board of education, 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. Section 7 of chapter 199 of the Laws of 1918 provided that the obligation of bonds or other evidences of indebtedness issued or contracts made by the town boards of education should not be impaired, but that, when issued or made 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 or provided for. It also provided that when bonds and other evidences of debt had been issued or contracts made for the erection of a new school building within a particular district, such bonds or other evidences of debt or contracts 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 or contracts. Chapter 183 of the Laws of 1919 added section 7-a to chapter 199 of the Laws of 1918 so as to provide for the reimbursement of expenditures made by a town board of education on account of the bonded indebtedness of a school district in a town or town school unit, and for the application of the amount paid in liquidation of any deficit which may exist after the settlement of the financial affairs of such town or town school unit, or for the proper distribution thereof to the several school districts if there shall be no such deficit. Chapter 561 of the Laws of 1919, adding section 11-a to chapter 199 of the Laws of 1918, provided, however, that "In a town or 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 in such town or town school unit and paid for the same out of its annual tax budget without issuing bonds therefor there shall * * * * |