14 N.Y.S. 811 | N.Y. Sup. Ct. | 1891
The complaint alleges that the plaintiff herein is an organization which was formed in the city uf New York on April 25, 1859, by the ■name of “Veterans of the national Guard, Seventh Begiment, First Division, New York State Militia, ” exclusively from those persons of full age who had -faithfully served in said regiment, by whatsoever designation known, the full
The provisions of the act of March 1, 1879, in reference to the issuing of bonds by the trustees named in said act, and the proceedings of said board of ■trustees and the field officers thereunder, are also set forth in the complaint, •including the assignment of the lease from the city by the field officers to the board of trustees by said act created. It is then alleged that subsequently and in 1879, after the new armory and buildings had been erected, the said assign-ment, grant, and sublease of said veterans’ room by the field officers was again confirmed in writing, guarantied to this plaintiff by said lessees and board of officers, and appropriations were specifically made towards furnishing said room from funds raised by, and which were then belonging to, the aforesaid joint adventure and .to this plaintiff as participant, which appropriations were •duly approved by said officers and others. The plaintiff also avers that it was put into possession of said veterans’ room, and has expended large sums of •money, to-wit, upwards of $25,000, in repairing, furnishing, and maintaining íhe same, and has paid considerable further sums to the treasurer as its just pro rata share of expenses for attending to the care of said armory, and for-heating and lighting the same, and as compensation in full for the cleaning •and care of said veterans’ room. There is an allegation, also, that the plaintiff has complied with, and is ready to comply with, all reasonable rules and •regulations governing access to said room, and generally with the laws of the state relating to armories, so far as the same may be applicable to the said seventh regiment buildings.- It is further averred that the above named defendants, after upwards of seven years’ acquiescence in and ratification of said agreement, assignment, and grant of sublease of said veterans’ room to the plaintiff, and continuous and exclusive occupancy thereof by the plaintiff, illegally and unjustly claim an estate in the same for the full period of said leases .from the mayor, alderman, and commonalty of the city of New York adverse ■to this plaintiff, and have molested and attempted to interfere with the exclusive, peaceable enjoyment and possession of said room by the plaintiff, to its great injury, which injury cannot be measured or compensated for in damages. This policy of molestation and interference with the plaintiff is alleged to be connived at and agreed-to by certain of the defendants in the complaint named, and it is averred that, unless prevented by this court, the defendants intend to deprive, and will, if possible, deprive, the plaintiff of its veterans’ room. That one of the purposes for which the legislature of this state incorporated the plaintiff organization was to enable it to preserve and continue recollections of service in said regiment, and that in consequence one of the
We have stated the allegations of the complaint so much in detail in order that the precise demand which the plaintiff makes, and the exact right which it claims, may be distinctly understood. Briefly stated, the claim of the plaintiff is that, by reason of the alleged agreement between it and the field officers and the board of officers of the seventh regiment, and of the action which it is alleged has been taken thereunder, the plaintiff has become entitled to the exclusive use and occupancy of the veterans’ room. In order to ascertain whether such claim is well founded, it is necessary to keep in view the objects and purposes sought to be obtained by .the several enactments in regard to the erection of a new armory of the seventh regiment, and also the objects and purposes for which the plaintiff was incorporated.
The objects and purposes for which the plaintiff was incorporated are stated in the second section of chapter 41 of the Laws of 1861 to be to afford pecuniary relief to indigent or reduced members and their widows and children; to promote social union and fellowship; to preserve and continue recollections of service in the National Guard. These are objects that are extremely laudable in themselves. But it is to be observed in passing that it is not necessary for the enjoyment of any of them that the veterans of the seventh regiment should occupy a room or quarters in the armory of seventh regiment. Pecuniary relief to indigent or reduced members and their widows and children, the promotion of social union and fellowship, and the preservation and continuance of recollections of service in the National Guard, could be as well promoted in other quarters as in the armory; and, inasmuch as nothing is stated in that act about the veterans occupying the quarters in the seventh regiment armory, that act, in and of itself, does not sustain the contention of the plaintiff in this action. On the other hand, when we- turn to chapter 234 of the Laws of 1874, p. 285, to ascertain the object of the legislature in providing a site for the armory of the seventh regiment, we find that section 1 of that act, after authorizing the execution by the commissioners of the sinking fund of a lease to the field officers of said regiment of the plot of ground bounded or situated between Sixty-Sixth and Sixty-Seventh streets and Fourth and Lexington avenues, in the city of New York, the same being a part of the land or premises belonging to the city of New York, provides that the field officers “are hereby authorized and empowered to accept said lease and take such site with the same effect as if a body corporate, to be thereafter “exclusively held and used for an armory and drill rooms by said regiment.” The veterans of the seventh regiment are not at present members of said regiment, and the delegation of the power to the field officers of said regiment to “exclusively hold and use the property leased for an armory and drill rooms” by said regiment would ordinarily and naturally exclude the idea of a joint adventure with other parties’. The act of 1879, c. 57, entitled “An act to secure the completion of the seventh regiment new armory, in the city of New York,” which provides for the issuing of bonds for the raising of money to complete and furnish said armory, and for the conveyance and assignment of the lease to trustees to secure said bond, does not allude
The question then arises whether, assuming that the field officers and board of officers made and entered into the agreement stated in the complaint, it was-within the power of those officers to do so. Upon a very careful examination, of the case, we have concluded that it was not within the power of the board of field officers or the board of officers of the seventh regiment, or of any one-connected with the said regiment, to authorize the use of the armory for any purposes other than those pertaining to the regiment itself. Notwithstanding the observations which are made in the brief of the learned counsel for the appellants, we are of the opinion that the seventh regiment armory is a public armory, differing in no way in the purposes for which it was designed from the other armories in the state. We are of the opinion that it is a public building, and is to be used only for public purposes, and that, however laudable the uses and purposes are for which the plaintiff was created, they are not public purposes, nor is the plaintiff in any legal sense a member of or adjunct to the seventh regiment. It is claimed by the plaintiff that the defendants cannot invoke the doctrine of ultra vires in this case, and that they are estopped from pleading a want of power to make the alleged sublease to-the plaintiff of the room known as the “Veterans’ Room.” Various cases are cited in the elaborate brief of the appellant’s counsel to support this view; but they will principally be found to relate to the cases of private corporations, and we agree with the presiding justice in the opinion expressed by him, that the alleged action of the board of field officers and the board of officers and others connected with the seventh regiment, referred to in the complaint, is entirely different from that of a private corporation dealing with its own property. The armai, in question, as already stated, is a public building, devoted to a public use, and the board of field officers to whom the sarnewas leased under the provisions of the act of 1874, before referred to, hold the same really as trustees for the public, for public purposes, and upon the express condition that the site is to be thereafter exclusively held and used for an armory and drill rooms by said regiment. Green’s Brice, Ultra Vires,, p. 120. As such trustees, the board of field officers were hot authorized to-divert the use of the building in any way from the public use to which it was devoted by the various acts of the legislature under which it was erected; yet,, if the contention of the plaintiff is sound, it was within their power to enter into partnership with another and an entirely different and distinct corporation, by which the latter should have the exclusive use of a large and valuable room for purposes entirely separate and distinct from an armory or drill rooms for the regiment as long aS the latter continued in possession of the armory. To enforce such an agreement would be to lend the sanction of & court of equity to a breach of trust.
Stress is laid in the complaint and in the brief of the appellant’s counsel-upon the fact that, by acquiescing in the occupation of the veterans’ room by.
Nor is there any force in the appellant’s contention that the facts necessarily admitted by the demurrer preclude the respondent from claiming that no cause of action is stated in the complaint. The complaint refers to the acts-of the legislature from which the parties to the alleged agreement derive their powers, and those acts show the public character of the armory, and the attitude which the officers alleged to have entered Into the agreement occupied! towards the public, and define and limit those powers so clearly that the legal rights of the parties cannot be misunderstood. A perusal of those acts in connection with the facts contained in the complaint renders it impossible for the court to say that the complaint alleges any agreement which it was within the power of the respondents to make.
We might elaborate the views which we entertain in regard to this case at. still greater length; but, conceiving it to be perfectly clear that the plaintiff has acquired no legal rights under the alleged action of the field officers of the seventh regiment and others, and that, if such rights were attempted to be bestowed by those officers, they acted in violation of their duty, we deem it unnecessary to pursue the subject further. The judgment rendered at the-special term was, in our opinion, in all respects correct; and it must therefore be affirmed, with costs and disbursements to the respondents.