82 A.D. 584 | N.Y. App. Div. | 1903
The interlocutory judgment in this action sustained a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and overruled the demurrers to the answers of the present respondents upon the doctrine of Baxter v.
So far as any question arising upon this appeal is concerned, the answérs are substantially the same, and the demurrer raises the same questions as to each.
The contents of the complaint are sufficiently stated in the opinion of Judge Werner in the Court of Appeals. (Wenk v. City of New York, supra.) The first defense attacked by demurrer in the answers of the respondents alleges that the plaintiff is estopped from questioning the legality of all but one of the leases mentioned in the complaint because they were ratified, validated- and confirmed by chapter 687 of the Laws of 1897; and also by the action of the electors of the town of Jamaica, in the spring of 1896, in electing Frederick W. Dunton to the office of supervisor of that town.
We think it quite clear that this defense is insufficient in law. Chapter 687 of the Laws of 1897 is entitled, “ An Act conferring additional powers upon the town board of the town of Jamaica, Queens county, relative to the public lands in such town.” The 2d section, which is the portion of the statute relied upon by the respondents, confers upon the town board jurisdiction over all lands belonging to the town of Jamaica, not being land under water nor between high and low-water mark, and authorizes the supervisor to sell and convey or lease the same in accordance with regulations made by the town board. It further provides that, with certain exceptions, “ all sales and leases shall be made to the bidder, whose bid shall be deemed by said town.board for the best interest of said town, and■ shall be subject to existing leases, which leases are hereby ratified and confirmedThe final clauses in the provision quoted' are relied upon as operative to give validity to the leases which are the subject of attack in the present suit. It is apparent, however, that no such effect can be given to the statute, when we consider its local character and the fact that its title in no manner expressed-the
As to the subdivision of the first defense which sets up the election of Frederick W. Dunton as supervisor of Jamaica as constituting a ratification of the leases, it is enough to say that we know of no rule of law which gives to the action of - voters under such circumstances- any confirmatory effect in respect to contracts of this kind.
The second defense to which the demurrer is directed alleges that since the making of the leases there has been expended, in reliance upon the legality and validity thereof, in the development and improvement of the lands which the leases cover and as rent for said land, the sum of $75,000 and upwards; that the plaintiff made no objection to the expenditure, and that by reason of his silence and laches the plaintiff is estopped from maintaining this action. We regard this allegation as equally insufficient to constitute a defense.
In the fourth and last defense, the sufficiency of. which is questioned by the demurrer, it is alleged that “'the plaintiff is not the real party in interest, and'there is a defect of parties, and that the City óf New York, as trustée for the-inhabitants of the former Town of Jamaica, now the Fourth Ward of the Borough of Queens, of the City of New York, is the real party in interest, but is not made a party hereto.” This allegation is not sufficiently specific to raise an issue as .to the right of the plaintiff to maintain the action, Mr. John Norton Pomeroy, who is perhaps the ablest text writer on American Code procedure, says on this subject: “ The defense that the plaintiff is not the real party in interest is new matter. A general averment, however, to that effect is not enough ; the facts must be-stated which constitute the defence, and which show that he is not the real party in interest.” (Pomeroy Rem. & Rem. Rights, § 711.) We are not referred to any case in which this question has-been passed upon by any appellate court in this State,.but there ar& many Special Term decisions, by judges of ability and distinction,, which support the doctrine thus stated by Mr, Pomeroy. It is sufficient to refer to White v. Drake (3 Abb. N. C. 133), decided by Mr. Justice Barrett at Special Term in New York county, and the cases therein cited.
Our conclusion is that the demurrer of the plaintiff to the first,, second and fourth' defenses set up in the answers of the respondents-should be sustained.
Goodrich, P. J., Woodward, Hirsohberg- and Jenks, JJ.,. concurred.
Interlocutory judgment, so far as it overrules the demurrer of the= plaintiff to the first, second and fourth defenses set up in the answers, of the Co-operative Society of New Jersey and Alonzo E. Smith,, revei-sed, with costs of this appeal, and demurrer sustained, with, costs.