*1 TOBE PRACTICE NEW BEPOBTS. Iiaymond. authorities of the of Hew
Undoubtedly, corporate York under have the charter it can be (if, indeed, after the recent decisions of our that a said, highest court, charter is still in license existence) hackney coaches, of the streets of the portions thereof as see fit. But are bound standing they places they to exercise that with reasonable discretion. Ho ordi- nance of the can authorize the creation lawfully corporation of a and it follows that no such ordinance nuisance, private him who creates one. justify
The continual blocking up doorway stables a “ that work- plaintiffs’ certainly nuisance, thing eth hurt” to and it is none less so reason of them5 the letter of the ordinance which confers the owners hacks the. thus to use that portion streets. must have plaintiffs judgment perpetually restraining
the defendants from obstructing passage way with costs.
As I am unable to determine from the evidence what- amount of has been sustained pecuniary damage by the plain- tiffs, I can make no direction that, except say that, if desire take a reference ascertain it, they may what have sustained the obstruction their damages they pas- way. sage me, decree will be before settled on two necessary, notice.
days’
COURT OF APPEALS. of the State of New York, respondents agt.
James M. Raymond, The office of commissioner taxes in the of Nw as at present constituted, the official duties and functions of officers at the comprises time the cob YORK PRACTICE *2 agt. Raymond.
People was 1846 which were then of ward adopted, stitution performed by assessors assessors the of of the board city. legislature vesting of the the of 1867, The act of these tax appointment commission- governor and in the unconstdutwnal and senate, ers void. of taxes are These commissioners must be elected or city officers, in the appointed to wit: the constitution the electors oí such provides, “by of some thereof, or legislature authorities thereof as the appointed division by that purpose.” 1868. January Term, is an action in the nature of a quo warranto, brought
This M. a commissioner James of against Raymond, taxes and in the of New assessments an office to he York, which the state of New appointed York, by of and with the advice consent the under of an act of the the provisions legislature pursuance (eh. 17, 1867 state of New 410 York, passed April Latos of The consideration presented 1867). is the of the act of the court referred constitutionality to. at in New term, decided York, that special judge referred to was and affirmed the act valid, the defend ant to the office.
This at reversed term and udgment general new trial ordered. term is as follows: opinion general 1868. January York Term,
New P. J. The new duties By court, directed to Leonard, the tax commissioners under act performed that time act of 1857 and and since 1850, acts, are incidents colorable additions to the duties merely * legislature (1868) last is understood that the an vesting Note. act passed appointing of these commissions of New power comptroller as has not been made York. This aet are yet; provisions in a similar act authorizing those contained 1859, passed by commissioners, such an act suc appoint comptroller every ceeding under the of this decision court in comptroller, R. 32 N. Y. S. C. How. Pr. R. 355; rel. Brown 203; ex Woodruff became exhausted held after comptroller it.—Rep. first exercise of YORK PRACTICE REPORTS. before dates for a these to the office long appertaining of assessors of taxes. 1850,
From when the tax board of commissioners was created, until the act of the commissioners April board supervisors comp- troller of of New local authorities elected by change appointing from made no in- supervisors comptroller *3 fraction of the because those officersare elected the of the within which the by commissioners people 1867, are to their duties. the act of the By com- perform missioners and of taxes assessments are to be appointed by the an officer elected the of the governor, whole by people state"of York. New It to requires demonstrate argument that the latter act is in of the violation and intent plain spirit 2, of section article of the constitution of this 10, state. The with the continuation of the change name, same pow- addition, ers certain new duties and functions not before found to administration of the office, does not amount to creation of a new office. office Every now filled of New York by people may, by some new have or which, legislation, conferred, claimed, reason and justice, might ' mitted a in the term and change appointment, thahthe instead state, or New some elected authority by them, fill all should the officesof that are en- plaintiffs ouster, titled defendant, &c., judgment against from must be with costs judgment appealed reversed the appellants, this order From is taken. present appeal Henry M. B. Champlin, attorney H. general, An- respondents. derson, for Rey-
F. W. Waldo Allen, Hutchins H. John nolds, YORK PRA CTICE
1T6 agt. Raymond, nature,of is an This action a quo J. war Grover, ranto, to determine the attorney general, brought office of commissioner of taxes title appellant assessments of New York. county duly appointed governor, appellant 1, pursuant consent of to section with the chap Laws has ac ter (p. 981), duly 410, qualified 'of of said act. His requirements cording of said act. therefore, office, depends constitutionality the counsel of claimed by act respondents is in conflict with section article of the consti and, void. That section therefore, tution, provides officerswhose-election or provided county shall be this constitution elected electors of the boards of counties, supervisors, shall All direct. authorities, or other county whose election town, village is not constitution provided *4 of some electors of towns and or such cities, villages, divi thereof as- sion . by such.authorities thereof, other offi All legislature purpose. election or is not cers whose provided hereafter officers whose offices constitution, may shall be created ap bylaw, people, as the direct. There-is may pointed, To is that-the office office.. in-question exclusively far the act constitutional determine whether so. vested gov as the thereby to deter it with the .is necessary consent ernor, existed substance mine whether the office found adoption present constitution$ town further whether city, then the so existing, be filled offices in. may subsequently county first To determine legislature. prescribed and,duties ascertain question-, examination of of the office question. Thus, upon YORK KEW PRACTICE REPORTS. Iff act in question act of the acts (the of 1857 page 1850), these will be found previous legislation, to consist of clerks, appoint &c., who, deputies, with the together officers in question, by performing various duties of their are to make an offices, respective assessment of all the liable to taxation property and state To correct municipal rolls purposes. assessments, such and to equalize same, preserve such them, rolls in an office to be deliver .kept by same to those whose it is to the taxes levy upon rolls, authorized It is neces- sary, whether like functions also, inquire formed constitution. by any prior This all know have been must taxation so, upon property is not of modern but has existed at intervals wholly origin, for state and at all times for purposes, municipal purposes, since the existence of the and there must state, necessarily have been at all times some mode which a valuation of liable to taxation was made author- as a basis which taxes were ity, apportioned among An owners. examination statutes force at the will show that such valuation was then made assessors chosen the electors of the wards of the two in each ward. That these respective ward assessors were to assess all the taxable required prop- in their and when this was erty com- wards; were all to meet as a pleted, they together board, and correct all the met, equalize, compare, *5 assessment rolls and when the asses- of city; completed, sors were the same to those whose to deliver it was to duty taxes be collected basis apportion required upon of valuation. same
Thus it essential functions appears precisely were deliv- correcting performed making, equalizing, the assessment ward the time rolls assessors, ering that were of of contemplated
Yol. XXXY 12 NEW TORE PRACTICE REPORTS.
to be the commissioners taxes and of assess- performed by act in ments the names of question; that, although and their mode of the officers have been the result to be one identi- changed, accomplished the other. But it is cal with that of on the argued of part additional have been conferred powers appellant, duties the commissioners. This and additional imposed upon an are to entire during they keep year, true; rolls are to be are to which kept inspection; they the lots of city; maps keep preserve procure to them of given a record building permits; power has rolls which been and to in the insert omitted, none of which were do some other acts, assessors, were not authorized to do. and which But they new duties and of these show an examination powers are calculated to facilitate all such as are that they the same essential them enable better perform the assessors—that valuation is, formed perfecting of taxation. Such additional as a basis facil- of the property cannot duties, ities performance surely sense of the constitution. them new make made section of the constitu- be new, can thus If they made a mere readily nullity. may tion above quoted that would far from conceding competent am over the from the control assess- to take of taxation and purposes ment in the central authority, by conferring pow- vest power which conferred of boards, they the officers ers upon them en- and imposing it over subjects, the assessment. The making to those of plain foreign tirely constitution section of the intention n of the official the control to localities to preserve and this then control possessed; consistent legisla- carefully preserved needful by restricting to make changes ture the same functions other officers perform *6 YORK PRACTICE agt. Raymond. People of the Any or some locality. authority people, in would render the section construction ap- It the cities of the state, substantially nugatory. plied or the that' the name of the officer not changed enough to confer to authorize the legislature enlarged, powers officers discharge governor appointment ' the con- officers by city performed stitution.
This accords with the of the reasoning prevailing opinion Draper in The N. Y. R. and also (15. 532), cases, has never that of other although precise point decided this court. It insisted that the assessors been It wards of the were not officers. city will be the act of assessed seen, of their but all were wards, the rolls of to meet as a board and act all perfect made them This clearly within 1857 and of the constitution. acts of 18-59, meaning of the commissioners 1850, gave appointment and thus to some local authority preserved 1867 vests the local control over The act of subject. and thus de and the senate, assessment of local control of the prives thus taxation. people purposes to them by of a secured deprives dis and is therefore This renders void. can the legislature cussion of provide question—whether after the to a adop city office, deemed best tion of the constitution, the reason that the interest—unnecessary, the con- was not so created within the meaning ' was de I will remark stitution. simply R. N. Y. et al. Pinckney 377) cided The (32 it was held that this legis possessed was not at all lature. The discussed, in had in the same that it been decided way assumed *7 PEACTICE TOBE BEPOBTS. agt. Cook. Seymour Draper A examination (supra). show slight that there decided in the latter case. was It was there held that the officers were not officers in constitutional but officers of district sense, act; was not this at consequently, all in the was said in relation to it and all that was case; obiter. under the circum- Whether entirely would be cannot stances, considered now court, open be determined. . from must be affirmed. judgment appealed
The court in this the office held, case, commisr sioner of the offi- at taxes, constituted, comprises present at the cial and of officers constitution was and that the act of legislature, adopted; the advice their vesting governor, and consent of the unconstitutional COURT. SUPREME H. W. respondent Ulysses Addison Seymour, Cook , wagon, and his team of two horses guest, with stopped Liability Innlieepa-.—A having his horses in the barn and and fed, had hav- village put and after tavern, bill for the his ing whole, requested innkeeper himself taken dinner, paid (the go hitching on and and he inn- him to he get told horses; np, bis latter to n guest minutes; the head barn, went keeper) put be out in a few would doing getting out; them while and was horses, innkeeper on stalls arrived at the barn two men rode in a but before the there; innkeeper up arrived him in a stall between horse those buggy, their stallion placed unhitched door. guest’s and the outer horses occupied hitching out of the door on to of his horses guest led one purpose as he was accustomed to do, other horse followed wagon; on, received a kick from him which stood, the stallion broke passing the stall where so that it to kill it: became leg worthless, rendered entirely guest had not liable. relation of landlord ter- was Edd, innkeeper guest bam; on his in his horses still ; premises minated his what it his to have done. doing assent, and with for the innkeeper,