網頁圖片
PDF
ePub 版

erty with the defendant, or taking the cash value of his share, has agreed to continue the owner of a one undivided half interest in the premises. In this case that undivided interest is what the plaintiff has agreed to take upon discontinuance of the suit, and to that interest the attorney's lien attaches. It is therefore determined that the petitioner has a first lien upon the interest of his client in premises known as No. 17 Livingston Place. Section 66 of the Code of Civil Procedure gives the court, upon the petition of the attorney, express authority "to determine and enforce the lien.” Although the motion to continue the action is denied, the court has power, under the prayer for other and further relief, to order the appropriate procedure. The attorney, had he so chosen, could have brought an action to foreclose his lien. Fischer-Hansen v. Brooklyn Heights R. Co., 173 N. Y. 492, 66 N. E. 395; Skinner v. Busse, 38 Misc. Rep. 265, 77 N. Y. Supp. 560. But such relief is cumulative merely, and the court may not properly, in the exercise of its discretion, deprive the petitioner of the remedy for the enforcement of his right provided by the Code. Matter of King, 168 N. Y. 53, 60 N. E. 1054. The client concedes that he retained the petitioner, but competent proof must be presented as to whether there was an express agreement as to compensation, and, if so, of the damage suffered from breach thereof, or, if there was no express agreement, then of the amount due on a quantum meruit. Matter of Dept. of Public Works, 167 N. Y. 501, 60 N. E. 781. An order may therefore be entered, following the procedure in the case last cited, and in Matter of King, 168 N. Y. 53, 60 N. E. 1054, and Peri v. N. Y. C. & H. R. R. Co., 152 N. Y. 521, 525, 46 N. E. 849, appointing a referee to take proof of the facts and circumstances of the matters set forth in the papers read in support and in opposition to this application, with direction to report the testimony, together with findings of fact and conclusions of law, to the court.

Ordered accordingly.

(1 Misc. Rep. 392.)

In re CULLINAN, State Excise Com’r. (Supreme Court, Special Term, New York County. September, 1903.) 1. LIQUOR TAX CERTIFICATE-REVOCATION-PETITION,

A petition by a state commissioner of excise to revoke a liquor tax certificate is sufficient where it states the material facts on information and belief, and alleges that the source of his information and grounds of belief are the public records of the office, and the statements of the special deputy commissioner of excise, and the affidavit attached to said

petition and made a part thereof. 2. SAME-PROCEDURE.

Liquor Tax Law (Laws 1897, p. 229, c. 312) $ 28, subd. 2, provided that the holders of a liquor tax certificate must, on return of an order to show cause why it should not be revoked, file a verified answer denying every violation thereof, and raising an issue as to material facts in the petition. Laws 1903, p. 1125, c. 486, § 12. amending it, permitted, instead, the filing of an unverified answer, and for a hearing on the evidence. Held to render subdivision 2 of section 28 constitutional.

and 118 New York State Reporter In the matter of petition of Patrick W. Cullinan, as state commissioner of excise, for revocation of a liquor tax certificate issued to Lena Neus. Order of reference.

Herbert H. Kellogg, for petitioner.
Pasrusz & Cohen, for respondent.

BISCHOFF, J. The petition in this case, supported as it is by the affidavits of Alfred Tanner and Duane B. Stillman, is sufficient to confer jurisdiction upon the court in this proceeding. It is undoubtedly true that jurisdiction is not conferred unless a petition is presented in which all the material facts are stated, and, if upon information and belief, disclosing the source of the information or the grounds of the belief. Matter of Peck, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888. But the petition in this case clearly alleges the source of petitioner's information, and the grounds of his belief as to the material facts stated upon information and belief, to be the public records of the office of the state commissioner of excise, and of the special deputy commissioner of excise for the boroughs of Manhattan and the Bronx, and also the affidavits of Alfred Tanner and Duane B. Stillman, attached to said petition, and made a part thereof as fully as if therein set forth. See Matter of Cullinan (Micha Certificate) 76 App. Div. 362, 78 N. Y. Supp. 466, affirmed 173 N. Y. 610, 66 N. E. 1106. The determination of the Appellate Division in that case, upon a similar state of facts, undoubtedly is controlling, Justice Woodward saying:

“But in the matter now before us, while the formal petition of the state commissioner of excise was made on information and belief, as it necessarily must be in a large number of cases where he is called upon to act, the petition is accompanied by the affidavits of two men, and these affidavits are made a part of the petition, in which they detail minutely the facts on which the petition is based; and these affidavits allege, upon the personal knowledge of the men making them, the violations of the liquor tax law, which, if established, justify the revocation of the certificate. This is, it seems to us, a full compliance with the provisions of the statute."

The only question, therefore, requiring serious consideration, is whether the amendment of the liquor tax law (Laws 1903, p. IIII, c. 486) has rendered subdivision 2 of section 28 valid and constitutional. The provision of the law requiring the holder of a liquor tax certificate, on an order to show cause why the same should not be revoked, to file a verified answer raising an issue as to some material fact in the petition, has conclusively been held invalid. Matter of Peck, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888. In the amendment of subdivision 2 of section 28, p. 1125, of the Laws of 1903, the requirement that a verified answer should be interposed has been omitted, and the provision reads that, on the return day of such order, the justice, judge, or court before whom the same is returnable shall grant an order revoking and canceling the liquor tax certificate, unless the holder of said liquor tax certificate "shall present and file an answer to the said petition, which answer denies each and every violation of the liquor tax law alleged in the petition, and raises an issue as to any of the facts material to the granting of such order, in which event the said justice, judge or court shall hear the proofs of the parties, and

may, if deemed necessary or proper, take testimony in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto,” etc.

The vice of the statute as it stood before the amendment was pointed out in the prevailing opinion in the Matter of Peck, supra, wherein Judge O'Brien says:

"Moreover, it is plain that what the statute practically provides for is that in such cases the accused shall be presumed to be guilty unless he denies his guilt under oath. If he omits to deny the statements of the petition on oath, the facts charged are to be taken as confessed, and a forfeiture follows. If the party against whom the proceeding is instituted is really guilty of the offense charged, he is thus compelled to confess his guilt, either by his oath or by silence, and then the forfeiture of his property rights follow. He has no other alternative, unless he is tempted to tamper with his conscience and deny the truth on oath. It is not competent for the Legislature to place a citizen in such a disadvantageous position in order to protect his liberty or bis property."

The Legislature has done away with the necessity of a verified answer, and permitted the raising of an issue to be determined by the justice, judge, or court without such requirement; and this seems to meet the vice pointed out in the Matter of Peck, supra. The court there held that it is not competent for the Legislature to require a person to confess his guilt either by his oath or by silence, with a forfeiture of his property rights in either event; that, in any proceeding by the state to deprive him of the one or the other, the facts which in law justify it must be alleged and established; and that the Legislature cannot effectively provide that it may be inferred or presumed from the silence of the party accused, or from his failure to answer under oath, that he is guilty, and thus suffer a forfeiture of his property rights. And to emphasize this the court says:

"This is especially true when the acts charged are not only the basis of a penalty or a forfeiture, but constitute a crime. It is the constitutional right of the party charged with the commission of acts which, if true, constitute a crime or create a penalty or impose a forfeiture, to answer without verification. No law can be valid which directly or indirectly compels a party to accuse or incriminate himself, or to testify by affidavit or otherwise with respect to his guilt or innocence."

Under this authority, therefore, the provision rendering it unnecessary to file a verified answer, and permitting the service of an unverified answer, meets the constitutional objection to the law as it stood; but it does not follow from this that the mere silence of the respondent (that is, failure to interpose an answer to the petition) renders it competent and lawful for the court to work a forfeiture from such silence. Notwithstanding this fact, though respondent remain silent, and which he has a right to do under our Constitution, it becomes incumbent upon the court to take proofs of the facts alleged in the petition in the manner provided by the statute, and determine the case accordingly. From this it follows that the respondent is not required to file an answer to the petition, but may content himself by his silence, whereupon the proof of the allegations of the petition must be presented for further action. See Matter of Cullinan, 40 Misc. Rep. 583, 83 N. Y. Supp. 9; Matter of Cullinan (Kray Certificate) 82 App. Div. 445, 81 N. Y. Supp. 567.

and 118 New York State Reporter Petitioner may therefore have an order of reference to take proois herein-a motion for a final order to come on to be heard thereafter on the usual notice.

Ordered accordingly.

(41 Misc. Rep. 456.)

TOWN OF SOUTHOLD V. PARKS et al. (Supreme Court, Trial Term, Suffolk County. October, 1903.) 1. Towns-BOUNDARIES-COLONIAL GRANT.

The colonial patent, October 30, 1876, to the town of Southold, lying northerly of Peconic and Gardiners Bays, describing the southern boundary of the grant as “on the south with an arm of the sea," does not gire the town title to the lands under water in those bays, as the word “with," in the description, should be deemed synonymous with "by," and the south boundary of the patent is the high-water mark on the north side of those bays.

Action by the town of Southold against Francis B. Parks and others to determine title to land under the bays eastward from Riverhead. Dismissed.

Asa A. Spear (Albertson Case, of counsel), for plaintiff.
Herbert L. Fordham, for defendants.
Timothy M. Griffing, for board of supervisors of Suffolk county.

SMITH, J. This action involves the determination of the ownership of land under the waters of Peconic and Gardiners Bavs at the eastern end of Long Island. In 1884 the Legislature, assuming the title to that land to be in the state of New York, passed an act (Laws 1884, p. 468, c. 385, as amended by Laws 1896, p. 1367, c. 916) which ceded to Suffolk county all the right, title, and interest which the people of the state of New York had in and to the lands under the waters of Gardiners and Peconic Bays for the purpose of oyster culture only, to be managed and controlled by the board of supervisors. The defendants, by virtue of conveyances made under the provisions of this act, claim title for the purposes of oyster culture to a tract of land under that portion of Peconic Bay locally known as “Town Harbor," or "Southold Bay,” containing 6472 acres, and are in exclusive possession thereof for that purpose.

The town of Southold, the plaintiff herein, brings this action to eject the defendants from the premises in question, claiming that the town has title to these premises, together with the whole of the land under the water of Peconic Bay, and to a large portion of the land under the waters of Gardiners Bay, by virtue of a colonial patent granted to the town by Colonial Governor Andross, which patent is dated October 30, 1676. If the patent does convey the premises in dispute to the town, the town is entitled to judgment of ejectment against the defendants. If the patent does not convey the premises, it is conceded by all parties that the title thereto was in the state of New York at the time of the passage of the act of 1884, and therefore the defendants would be entitled to judgment dismissing the complaint on the merits of the action.

i The following is the essential portion of the description of the premises conveyed by the Andross patent to the town:

"A certaine Towne * * * upon Long Island commonly called and knowne by the name of Southold situate lying and being on the North side of the said Island towards the Sound having a certain tract of land thereunto belonging. The western bounds whereof extend to a certaine River or Creeke called Wading Creeke in the Indyan Tongue Pauquacunsuck and bounded to the eastward by Plum Island together with the said Island, on the north with the Sound or North Sea and on the South with an arme of the Sea or River which runneth up between Southampton land and the aforesaid tract of land unto a Certaine Creeke which fresh water runneth into called in English the red Creeke * * * together with said creek and meadows belonging thereunto * * * so running on a straight line from the head of the afore named fresh water to the head of a Small .Brooke that runneth into the Creeke called Pauquacunsuck including all the necks of land and Islands within the afore described bounds and limits."

The title of the town to Peconic and Gardiners Bays is dependent upon the meaning and effect to be given to the word "with” in defining the southern boundary of the grant. The claim of the town is that it should be construed as synonymous with the word “including." Given this meaning, the patent would read :

"And on the south including an arme of the Sea or River which runneth up between Southampton land and the aforesaid tract of land unto a Certaine. Creeke which fresh water runneth into called in English the red Creeke."

The defendants contend that the word "with," as used in defining the bounds of the grant, is synonymous with the word "by." In Webster's Dictionary it is stated in a note under the word "with":

With' and 'by' are closely allied in many of their uses and it is not easy to lay down a rule by which to distinguish their uses.”

Considering the purposes for which the word "with” is employed in the grant, and taking the whole description together with all the admitted facts in connection therewith, I have no hesitation in reaching the conclusion that the word "with” in the description is used synonymously with the word "by.” The description purports to give the bounds or limits of the grant. The north boundary is with or by the sound, the south boundary is "with an arme of the Sea or River which runneth up between Southampton land and aforesaid tract of land." If the south boundary is held to be inclusive of the “south arme of the Sea or River," then the north boundary must be held to be inclusive of the sound. Such a result is wholly improbable and incredible.

The southern boundary is "with an arme of the Sea which runneth up between Southampton land and the aforesaid tract of land." The aforesaid tract of land is the land to be conveyed by the patent. If the “arme of the Sea runneth up between the land granted by the Patent and the Southampton land," it could not possibly be a part of either Southampton or Southold.

I therefore construe the south boundary of the patent to be highwater mark on the north side of Peconic and Gardiners Bays, following the line of high-water mark of Peconic Bay around to Red creek.

It is suggested by plaintiff that, as the mouth of Red creek is on the south side of Peconic Bay, the south boundary line of the patent,

« 上一頁繼續 »