26 Barb. 218 | N.Y. Sup. Ct. | 1857
Mitchell, J. The plaintiff agreed to ex
When the time for the exchange of papers came, the counsel for Benson objected: that Benson should not assume these mortgages ; that they were made payable on the first of November; and that if he did, Cromwell would foreclose them the day after they became' due. Or, in the words of his own counsel, he told Hr. ,C. “ that Dr. B. was not bound to assume the payment of any mortgages which were not on the property,” meaning at the time of the contract. Dr. B. said his counsel advised him “ that he was not bound to assume any mortgages except” those on the property at the time of the contract, and that he “ had acted on that advice.” The contract did not describe mortgages then on the property as those to be assumed—nor any particular mortgages—but only specified the amount, and the time from which the interest was to run. The objection of the plaintiff was therefore bad, and put him in fault. The principal objection now-raised is, that Cromwell’s title was derived from a foreclosure in a county court..,
B.’s counsel, after examining C.’s title, stated the objections to it in writing, in eight different propositions: none of these object that no foreclosure could be in a county court, but they are taken up with special and minute objections to the proceeding in the suit, supposed to be irregular. This objection seems to have been raised only after this suit was brought; if presented in due time, it may well be that C. could have obviated it by releases. He was, at all events, entitled, to have notice of the objection before a suit was brought against him by a contracting party, who was in fault in assuming and insisting in an untenable position, materially affecting the contract.
This would be sufficient reason for that part of the judgment of the special term, which declares the contract to be rescinded and annulled, and directs the instrument to be delivered up to be cancelled. There is a decision in the second judicial district of this court, that, under the constitution, the county courts cannot foreclose a mortgage (Hall v. Nelson, 23 Barb., 88). We
It is proper briefly to state our views as to the constitution. The case in the Court of Appeals arose in an action for an assault and battery. Judges Gardiner and Hand each delivered written opinions, in which Judge Gardiner confines his understanding of the “ special cases” in which county courts may have original jurisdiction to special proceedings existing in 1846, and similar special proceedings. Judge Hand’s views are nearly the same ; but he cautiously remarks : “ Perhaps it may be different in equity, for the Legislature is authorized to confer upon the county judge equity jurisdiction in special cases.” This prevented him and the Court of Appeals from being committed to extend that decision to equity cases. Judges Denio, Johnson, Crippen, and Dean avoided the appearance of assent to the views of Judges Gardiner and Hand, by stating the grounds of their concurrence to be, “ that the statute imposing jurisdiction on county courts in actions of assault a/nd battery was unconstitutional.” Judges Buggies and Marvin took no part in the decision. In the case in the 2d district, Justice Emmet felt controlled by the decision in the Court of Appeals, although he does not hesitate to express his dissent from it, and shows strongly the danger of such a decision when the law had met the approbation of the profession, and many titles depended on its being sustained. Justice Brown dissented from his associates.
The reasoning in the Court of Appeals admits that “ cases” primarily means or includes causes. The section of the constitution referred to uses it in that sense. It says : “ The county court shall have such jurisdiction in cases arising in justices cowrts, and in special cases, as the Legislature may prescribe ; but shall have no original civil jurisdiction except in such special cases? The cases arising in-justice’s courts are causes— mostly common-law causes—and unless' “ cases” includes such causes, and not merely special proceedings, the Legislature can give no appellate jurisdiction to the county courts over the jus
But the Legislature does distinctly specify the power to foreclose a mortgage, and sell the mortgaged premises, if they are situated within that county (Const., 80, 33). To this also may be added, that as the sale of mortgaged premises by advertisement had been a special proceeding in daily use before the year 1846, it did not make it less a special proceeding, within the meaning of the constitution, if the Legislature authorized the same thing to be done in the county court. The constitutional right to confer the power on the county court would be clear if the proceeding was to be then conducted in a summary way : it could not be lost by requiring the formalities of an action in the same proceeding.
The word special is also used in the same sense in the 9th section of this article, which speaks of “ the general and special terms of the Supreme Courtterms for special proceedings, such as were thus known in 1846, as distinguished from cases or causes, no one will say were intended. The 12th section in the converse sense speaks of the “ general election, of judges.” So when it is said in section 14, that the Legislature may confer equity jurisdiction in special cases upon the county judge, is it not plain that “ cases” here mean “ causes in equity” as plainly as “ equity cases” does in section 10 ? And then that “ special” must mean such as are “ specified)"* by the Legislature—not thrown in mass in general terms upon the court. “ Equity jurisdiction” properly applies only to formal actions in equity, and not to “ special proceedings.” Special proceedings in 1846 were seldom to be conducted by the chancellor or vice-chancellor : they were still less frequently, if ever, considered a part of the equity jurisdiction.