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and 118 New York State Reporter of Alexander P. Irvin after a copartnership accounting; but we are of opinion that, inasmuch as the referee took some proof upon the subject of the objection, the petitioner should have been permitted to show that there was an outstanding right to property of the estate of Alexander P. Irvin, which, although not strictly an asset of that estate, would become so on a proper judicial settlement of the copartnership accounts, for the referee has found as matters of fact that Alexander P. Irvin's interest in the firm was largely exceeded by the losses of the firm, and that the statement of the interest of Alexander P. Irvin in the firm, or the liquidation thereof, “is hereby ratified and confirmed”; and as a conclusion of law that Mary M. Irvin, as surviving executrix of Richard Irvin, Jr., should be discharged and freed of and from all responsibility, liability, or accountability to the said Mary I. Smith, the contestant herein, on account of the acts and doings of the said Richard Irvin, Jr., as executor of the said Alexander P. Irvin, deceased; and the report of the referee was confirmed.
While a decree of the Surrogate's Court in an accounting proceeding is conclusive evidence only as to the four matters recited in section 2742 of the Code of Civil Procedure, yet we have here findings of fact made upon the objection we have considered, and a conclusion of law following it, which would apparently discharge the estate of the executor from liability for the copartnership interest of his testator, and a confirmation of the report of the referee by the decree. In order to preserve the rights of the petitioner, and prevent any future misunderstanding or controversy as to the effect of the decree, we are of the opinion that it should be modified by limiting the adjudication upon the account to the items as that account is stated by the referee, and declaring it not to be a final accounting; that the decree should specifically recite that the court does not take cognizance of the claim to a copartnership interest, and refuses to pass upon the same; and that the discharge of the executrix from liability does not relate to that claim, if any exists. It is not necessary to send this matter back to the Surrogate's Court for further consideration. While we think the referee, under the circumstances, should have admitted the proof offered, for the reason above suggested, no practical benefit would be gained by continuing this particular proceeding. The modification of the decree will leave it open to those entitled so to do, to bring suit in the proper tribunal for an accounting of the copartnership affairs, and a discharge of the executrix of the executor in a final accounting will be withheld for the present.
The decree should be modified in accordance with the views above expressed, and, as modified, affirmed, without costs to either party of this appeal, and the question of the allowance of costs generally should be reserved until the final accounting. All concur.
MARTIN V. NEW TRINIDAD LAKE ASPHALT CO. (Supreme Court, Appellate Division, First Department. November 20, 1903.) 1. DISCOVERY-EXAMINATION OF DEFENDANT'S BOOKS.
A plaintiff is not entitled to an order for an inspection and discovery of defendant's books of account, to discover the amount due him under
a contract, to enable him to frame his complaint. Appeal from Special Term.
Action by William D. Martin against the New Trinidad Lake Asphalt Company. From an order denying a motion to vacate order for discovery and inspection of defendant's books and accounts and modifying such order for discovery, defendant appeals. Reversed.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
Abram J. Rose, for appellant.
PATTERSON, J. This appeal is from an order denying a motion to vacate an order for an inspection and discovery of books. The order sought to be vacated requires the defendant to give to the plaintiff a discovery and inspection and permission to take copies of statements and accounts described in a petition, and provides that the discovery and inspection be made by requiring the defendant to deliver to the plaintiff, on or before a date fixed, sworn copies of statements and accounts; and, if such statements are not furnished, then to deposit the books of account of the defendant, and of statements rendered to the defendant by another company, at the office of the plaintiff's attorneys, or in the office of the clerk of this court. That order was granted on a petition of the plaintiff, in which he states that this action is brought to recover damages for the breach of a contract in writing for the payment of royalties by the defendant for the use by the defendant and its licensees of processes covered by letters patent of the United States and of the Island of Trinidad, under which contract the defendant agreed to furnish statements of the amounts of dried and refined asphalt produced, used, or sold by the defendant, and upon which, under the terms of the contract, the plaintiff was entitled to royalty.
The only ground upon which the plaintiff sought to have an inspection and discovery is to enable him to ascertain the amount of royalties to which he would be entitled, and he alleged that that was necessary in order to enable him to frame his complaint, and for no other reason. That the plaintiff may be entitled, at the proper time, to an inspection and discovery to enable him to obtain evidence necessary to prove the amount he may be entitled to recover upon a trial may be true, but it is not necessary that he should have such inspection and discovery at this time simply for the purpose of enabling him to state in his complaint what damages he demands. Taylor v. American Ribbon Co., 38 App. Div. 144, 56 N. Y. Supp.
11. See Discovery, vol. 16, Cent. Dig. $ 111,
and 118 New York State Reporter 667; Brummer v. Cohen, 47 App. Div. 470, 62 N. Y. Supp. 241. The application for an inspection in this case falls within what was held in the cases cited. The case of C. & C. Electric Co. v. Walker Co., 35 App. Div. 426, 54 N. Y. Supp. 810, does not affect this application. That was an appeal from an order directing a compulsory reference of an action in which judgment was demanded for the amount of royalties. It was held that it was purely an action at law, and, where an account was sought of the articles manufactured and sold by the defendant, subject to royalties, the taking of an account was merely an incident to the action, and was required as evidence to enable the plaintiff to fix the amount of the recovery to which he was entitled, and did not authorize a compulsory reference. The question as to the plaintiff being entitled to an inspection of books to enable him to frame a complaint did not arise and was not before the court, and what is said upon that subject is only a dictum, opposed to the later decisions upon the subject. In Fidelity and Casualty Co. v. Seagrist, 79 App. Div. 614, 80 N. Y. Supp. 277, the right to the inspection was put expressly upon the ground that the plaintiff was by agreement entitled to such inspection at any and all times, the court remarking that the general rule requiring a defendant to submit his books and papers for inspection to an adverse party is not applicable to a case wliere, from the nature of the contract between the parties, the only method by which the amount due to the plaintiff can be ascertained is by an examination of the defendant's books, and where the parties, in view of this situation, have expressly agreed that plaintiff should be entitled to such an examination at any time. The order was sustained "in view of the special contract between the parties and the nature of the obligation of the defendant sought to be enforced” in that proceeding.
The order denying the motion to vacate the order for an inspection of books and papers should be reversed, with $10 costs and disbursements, and the motion to vacate such order should be granted, with $10 costs. All concur.
VIEMEISTER v. WHITE et al. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) 1. STATUTES-VALIDITY-DETERMINATION-NATURAL JUSTICE.
The validity of statutes must be determined solely with reference to
constitutional restrictions, and not by natural equity or justice. 2. PUBLIC SCHOOLS-CONSTITUTIONAL GUARANTY-LEGISLATIVE RESTRICTIONS
Const. art. 9, § 1, requiring the Legislature to provide for the main. tenance and support of free common schools, wherein all the children of the state may be educated, does not operate to make education a constitutional right, instead of a privilege, and thus prevent the Legislature from imposing any reasonable regulations on the privilege, such as the requirement of vaccination, prescribed by Laws 1893, p. 1556, c. 661, $ 200, so long as the regulation operates equally on all persons in the same
class and under the same conditions. 8. CONSTITUTIONAL LAW-LEGISLATIVE DISCRETION-INTERFERENCE BY COURT.
The courts cannot interfere with the exercise of legislative discretion, so long as it does not transcend constitutional limitations.
SAME-LAW OF THE LAND-VACCINATION ACT.
Laws 1893, p. 1556, c. 661, $ 200, requiring vaccination of children as à condition of their attendance on public schools, as it operates equally on all persons within the state, and violates no specific individual guar. anty of the Constitution, does not deprive any member of the state of "any of the rights or privileges secured to any citizen thereof, unless by
the law of the land or the judgment of his peers." 6. SAME-EQUAL PROTECTION OF LAWS-VACCINATION ACT.
Laws 1893, p. 1556, c. 661, $ 200, requiring vaccination of children as a condition of their attendance on public schools, does not deprive any
persons of the equal protection of the law, within Const, U. S. Amend. 14. 6. PUBLIC SCHOOLS-CONDITIONS OF ATTENDANCE-POLICE POWER,
Laws 1893, p. 1556, c. 661, $ 200, requiring vaccination of children as a condition of their attendance on public schools, is a valid exercise of the police power of the state.
Appeal from Special Term, Kings County.
Application by Edmund C. Viemeister for a peremptory writ of mandamus against Patrick J. White, president of the board of education, and another. From an order denying the writ, relator appeals. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
Edmund C. Viemeister (John Leary, on the brief), for appellant. James McKeen (Walter S. Brewster, on the brief), for respondents. WOODWARD, J. The relator seeks to compel the respondents, officers of Public School No. 12 in the borough of Queens, to admit his child to such school, admission having been denied because of the fact that the relator's said child had not submitted to vaccination, as required by section 200, c. 661, p. 1556, Laws 1893. The application of the relator for a peremptory writ of mandamus was denied at Special Term, and appeal comes to this court, it being urged that the section aboye cited is null and void, as being contrary to certain provisions of the Constitution.
The rule is well established by authority that the validity of statutes must be determined solely with reference to constitutional restrictions, and not by natural equity or justice. People v. Buffalo Fish Co., 164 N. Y. 93, 97, 58 N. E. 34, 52 L. R. A. 803, 79 Am. St. Rep. 622, and authority there cited. Our attention is called to various provisions of the state Constitution in an effort to establish a conflict between the statute and the fundamental law. First among the provisions of the Constitution to which our attention is invited is section 1 of article 9, which provides: "The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” It is urged that this operates to make an education a constitutionaf right, rather than a privilege, as held in Matter of Walters, 84 Hun, 457, 32 N. Y. Supp. 322; but we are of opinion that the Constitution did not intend to change the practice and policy of the state in reference to the schools, but merely to insure a continuance and an extension of the privileges of citizens of this state, and that the Legisla
16. See Schools and School Districts, vol. 43, Cent. Dig. $ 329.
right termine the conditithe state grants pel any person
and 118 New York State Reporter ture has a right to impose any reasonable regulations upon this privilege which operate equally upon all persons in the same class and under the same conditions. It may be conceded that the Legislature has no constitutional right to compel any person to submit to vaccination; but where the state grants a privilege it has the right to determine the conditions upon which it may be enjoyed; has a right to regulate the privilege in the interests of the fullest enjoyment by all; and, so long as this regulation does not operate to deprive any member of this state of “any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers," there is no ground on which the statute may be declared null and void. The vice against which this constitutional limitation was directed was partial legislation—legislation which operated, not upon the legislators and their immediate constituents, but upon limited numbers of people; and it can hardly be doubted that a provision of a statute which provided that Public School No. 12 of the borough of Queens should not permit the attendance of persons not vaccinated, but which made no regulation for other schools, would not be "the law of the land." It would not be “the law of the land” if it referred to a single county, or to a number of counties, for it would still be open to the objection that it deprived the members of this state who lived in these localities of rights and privileges which were secured to citizens in other portions of the state. When the law operates equally upon all; when the rule of conduct is uniform throughout the state, affecting alike the legislator, his family, his neighbors and friends--the presumption lying at the foundation of representative government is that the Legislature will act wisely, and in the interests of all of the people; and we may fairly look to the Legislature for the repeal or amendment of statutes which, in the course of time and experience, are found to work adversely to the public interests. When, therefore, the fundamental law of the state has limited the Legislature to general laws in so far as they relate to the rights and privileges secured to any citizen of the state, and has fixed certain limits upon encroachments upon individual rights, it leaves the legislative power otherwise untrammeled, and it is not the province of the courts to interfere with the exercise of legislative discretions. If section 200, p. 1556, c. 661, Laws 1893, is not justified, if it is not wise or proper to impose the condition there named, it must be presumed that the Legislature will in the future remedy the wrong. It cannot be done by the courts. In our constitutional system there are three co-ordinate departments --the executive, the legislative, and judicial; and it is improper that any one of these should encroach upon the domain of the other. Therefore, when the validity of an act of the Legislature is brought before us, we are to determine not whether the act is wise, or demanded by considerations of a public nature, but whether it is within the limitations fixed by the people in the fundamental law, and beyond this we are without more power than belongs to any other equal number of citizens of the state.
The act in question is general in its operation. It applies to all persons attending the public schools of this state, and, if it tran