flict with express constitutional provisions." It is manifest that for the purposes of this statute, no such distinction exists between coal miners and workmen in many other occupations in this state. The evil at which this statute is aimed is one that is not visited alone upon persons employed in coal mines. The Legislature cannot ameliorate the coal miners' condition under the guise of an exercise of the police power and leave others unaided who suffer from like causes. Conceding the importance which defendant in error attaches to this act as a sanitary measure, it is apparent that it is not sufficiently comprehensive to remedy the evil at which it is aimed, because it will bring relief only to a part of the people who suffer therefrom.

Defendantin error predicates its contention that this statute is constitutional principally upon the ground that it is within section 29 of article 4 of the Constitution of 1870, as appears from the following language quoted from its brief: "It might be conceded for the purpose of this argument that if the act applied to any other class than miners it would be open to the objection of class legislation, but the framers of the constitution made an exception in favor of this particular class, which we contend is broad enough to furnish a foundation for the act in question.” That section reads as follows: “It shall be the duty of the General Assembly to pass such laws as may be necessary for the protection of operative miners, by providing for ventilation, when the same may be required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper."

We think it also reasonable to conclude that the legislative purpose was to exercise a power contemplated by this section of the Constitution, as it does not appear from the act or its title that the lawmaking power regarded it as a sanitary measure passed by virtue of the police power of the state.

It is contended that the purpose in adopting this constitutional provision was to provide for the health as well as the safety of persons employed in coal mines.

We are referred by the defendant in error to the debates of the constitutional convention, that we may be made acquainted with the views of that convention and determine the meaning of this section in the light of the purpose for which it was passed as disclosed by those debates. "References to the proceedings of a constitutional convention are sometimes resorted to by the courts in order to find reasons for a particular action of the convention. They are not resorted to for the purpose of construing away any express language of the Constitution, or even for the purpose of construing what may be doubtful. “When the inquiry is directed,' says Judge Cooley, 'to ascertaining the mischief

designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory.' Cooley's Const. Lim. 63, and cases cited.” Wulff v. Aldrich, 124 Ill. 591, 16 N. E. 886; Burke v. Snively, 208 Ill. 328, 70 N. E. 327.

In the case at bar we do not think the discussion of this provision prior to its adoption of any assistance. To adopt the view of defendant in error would require us to interpolate the words, “and health,” after the word "safety," and then the provision would be of doubtful meaning. If it was the purpose of the builders of the Constitution to direct the General Assembly to pass laws other than such as should "secure safety in all coal mines," they fail to use language to manifest their intention, and an ascertainment of their purpose can avail nothing under such circumstances. We are of opinion that the legislation in question is not authorized by this constitutional provision for two reasons: First, the purpose of this provision of the Constitution is to require the enactment of laws providing for the safety of the miner while in the mine, and this act makes no provision that will benefit the miner or protect or aid him until a time after he has left the mine; second, the provision of the Constitution was designed only to require the enactment of laws which should promote ventilation and guard the personal safety of the miner—that is, protect him from personal injury. This latter view was taken by this court in Millett v. People, supra, where it is said: “We are not unmindful that our Constitution, in section 29, art. 4, enjoins legislation in the interest of miners; but this is solely as respects their personal safety—the enactment of police regulations to promote that end.”

The miner works in a place where he is exposed to dangers which do not assail those who labor above ground. Damp, darkness, noxious gases, lack or difficulty of ventilation, and other causes contribute to render his situation while at work unpleasant, undesirable, and perilous. The constitutional convention and the people of the state recognized this condition, and, by the Constitution, wisely commanded the Legislature to enact such laws as should secure his personal safety while in the mine. When, however, he has ceased his labor, left the mine and reached the surface of the earth, he has for the time being passed beyond the operation of the constitutional provision and of any valid statute authorized thereby. His situation is not then different from that of many other workmen leaving their employment at the end of the day, and his rights under the Constitution are not then greater than those of such other workmen.

An analogous question arose in Colorado,

where it is provided by section 2 of article was entered by consent, if it were sought to 16 of the Constitution of the state that prevent review on appeal on the ground that it “the General Assembly shall provide by law

was entered by consent, it should have been

made the basis of a motion to dismiss the appeal. for the proper ventilation of mines, the construction of escapement shafts, and such

Appeal from Supreme Court, Appellate Diother appliances as may be necessary to pro

vision, Fourth Department. tect the health and secure the safety of the

Action by Selden S. Brown and others workmen therein." It will be observed that this against John McKie, as tax collector of the is broader than our own Constitution in that it

West Side sewer in the town of Gates. in terms includes appliances "to protect the

From an order of the Appellate Division health.” In Re Morgan, 26 Colo. 415, 58 Pac.

(90 N. Y. Supp. 250, 98 App. Div. 514), re1071, 47 L. R. A. 52, 77 Am. St. Rep. 269, versing a portion of the judgment entered the Supreme Court of that state, considering

on a decision after a trial at Special Term, this provision, said: “These regulations plaintiffs appeal. Order of the Appellate Dimanifestly embrace only such reasonably

vision modified, so as to direct that a pornecessary mechanical appliances as will se

tion of the Special Term judgment be reverscure the end in view, and do not include ed and set aside, with a further direction other kinds of health regulations.” We con

that the case be sent back to the Special clude that the enactment here in question

Term for the entry of a proper judgment. is not within the meaning of the section Eugene Van Voorhis, for appellants. John of our Constitution herein above set forth, A. Barhite, for respondent. and that it is obnoxious to that provision of the fundamental law of the state which

WILLARD BARTLETT, J. This action forbids special legislation in certain enum

was brought to set aside certain assessments erated cases.

upon lands belonging to the plaintiffs on The judgment of the circuit court will be

the ground that such assessments constitutreversed.

ed a cloud upon their title. The trial judge, Judgment reversed.

who rendered a decision in the short form

(which has since been abolished), declared HAND, J. (dissenting). I do not agree to that he found the assessment to be void upthe conclusion reached in the foregoing opin on its face so far as it related to 62 acres ion, but entertain the view that the statute of the plaintiffs' land, but that the assessment referred to therein is a valid exercise of

as to 19 lots thereof was valid. The decision the police power of the state.

further declared that inasmuch as the objection to the validity of the assessment appear

ed upon the face of the assessment roll the (185 N. Y. 303)

case came within the rule that an action in BROWN et al. v. MCKIE, Tax Collector. equity would not lie to set aside an assess

ment void on its face as a cloud upon title, (Court of Appeals of New York. June 5, 1906.)

and the judgment accordingly directed that 1. APPEAL-REVERSAL-DIRECTING JUDGMENT. Where the trial judge directed entry of a

the complaint should be dismissed, without judgment dismissing the complaint, but a judg costs. ment was entered partly in favor of plaintiff, The judgment which was entered upon this on appeal by the defendant the appellate court

decision did not conform to the direction of should have reversed the judgment and remitted the cause for the entry of a proper judgment.

the trial judge. Its form appears to have [Ed. Note.—For cases in point, see vol. 3,

been agreed upon by counsel, and it was Cent. Dig. Appeal and Error, $ 4592.]

evidently signed by the clerk without hav2. JUDGMENT-MATTERS CONCLUDED - ESSEN ing been submitted for inspection and apTIALS OF ADJUDICATION.

proval to the judge who tried the cause. It Where, in an action to set aside tax as

embodies two adjudications: (1) That the sessments on the ground that they constituted a cloud on plaintiff's title, the court found that

treasurer of the city of Rochester (for whom the assessment was invalid, and then found that the respondent has been substituted as dethe defect, if any, appeared on the face of the

fendant) had no lien by reason of the asassessment, so as to bring the cause within the rule that an action in equity will not lie

sessment in question upon 62 acres of the to set aside an assessment void on its face as a plaintiffs' land; and (2) that the City Treascloud on title, and a judgment was directed dis urer had a valid lien by virtue of such asmissing the complaint, the judgment was not res

sessment upon 19 lots belonging to the plainadjudicata as to the validity of the assessment.

tiffs. From that part of this judgment de[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, $ 1251.)

claring that no lien existed upon the 62 3. APPEAL-DECISIONS REVIEWABLE — JUDG

acres the defendant appealed to the AppelMENT BY CONSENT.

late Division, where the judgment, so far A judgment entered by consent is not ap as appealed from, was reversed by a divided pealable.

court, and a new trial was granted on the [Ed. Note.—For cases in point, see vol. 2, ground that the objection to the assessment, Cent. Dig. Appeal and Error, $ 883.]

which had been sustained by the decision 4. SAME-DISMISSAL-CONSENT JUDGMENT.

of the court at Special Term, had been waived Where the judgment entered was other than the one directed by the trial court, and it by the plaintiffs by reason of their failure did not appear on the face of the record that it to present it to the commissioners of sewer

age on grievance day. From the order of did not thereby become in any wise available reversal in the Appellate Division the plain to the plaintiffs as evidence that the assess. tiffs have appealed to this court.

ment was invalid. The judgment which the There was no authority on the part of the trial court ordered was an adjudication not clerk or anybody else to enter such a judg in favor of the plaintiffs, but against them; ment us was entered in this action. The and if the proper judgment had been entrial judge had directed judgment dismissing tered the defendant would have had no the coniplaint. If such judgment had been reason to appeal therefrom. entered it would have afforded no basis for It is an established principle relating to an appeal to the Appellate Division by the res adjudicata “that a former judgment defendant. There is no practice in any sys is not available in a subsequent action for tem of jurisprudence, so far as we know, another cause, between the same parties, which permits a successful litigant to re to establish any fact not material to the adview a judgment in his own favor. The judication actually made in the former acfact that the judgment was not in conformity tion.” Cauhape v. Parke, Davis & Co., 46 with the decision was apparent upon a mere Hun, 306; affirmed in 121 N. Y. 152, 24 N. E. inspection of the record; and that fact re 185. The case cited was a suit upon a con. quired a reversal of the judgment, not be tr

tract in which the plaintiff to prove the excause of any supposed error in the findings istence of the contract put in evidence the upon which it was founded, but for the judgment roll in a prior suit between the simple and manifest reason that it was es same parties wherein, a referee had found sentially different from the judgment which that such a contract was made, but had rehad been directed by the trial court. The fused to grant any relief upon the ground learned Appellate Division should have re that he had no jurisdiction. It was held that versed and set aside the judgment on this in

inasmuch as the referee had denied the plainground alone and remitted the cause to the tiff any relief on account of this contract in Special Term for the entry of a judgment in the prior action, his finding that it existed accordance with the direction contained in was not a binding adjudication upon the dethe decision. This view leads to a modifica fendant in the second suit. As was said in tion of the order of the Appellate Division this court by Andrews, J.: "Whether the which is now brought here for review, so alleged contract was valid or void, the point as to direct that portion of the Special Term of jurisdiction was decisive against any judgment appealed from be reversed and set recovery thereon. The finding that there aside solely on the ground that it does not was such a contract was, at most, mere conform to the decision of the trial court, inducement or introductory to the finding with a further direction that the case be of want of jurisdiction. It was not an essent back to the Special Term for the en sential ground upon which relief was denied, try of a proper judgment.

and the denial of relief did not rest upon it." It is evident that the entry of a judgment 121 N. Y. 155, 24 N. E. 186. So in the presin this case, different from that authorized by ent case, whether the assessment upon 19 the decision, was due to the desire of the de lots was valid or invalid, the point that the fendant to review the finding of the trial defect, if it was a defect, appeared upon Judge which declared a portion of the as the face of the proceedings was decisive sessment to be invalid. This desire can be against the maintenance of an action to preascribed only to the idea that such finding vent a cloud upon the plaintiffs' title. The constituted an adverse adjudication upon the finding that the assessment was invalid was, validity of the assessment which would be at most, mere inducement or introductory binding upon the defendant in any other to the finding that the defect, if any, was so Judicial proceeding. That idea, if it existed, manifest as to preclude the plaintiffs from can only be ascribed to a misapprehension maintaining an action of this character. which seems to be by no means uncommon in The denial of relief embodied in the directhe profession as to the effect of a finding tion that the complaint should be dismissed which is not necessary to sustain the judg. did not rest upon the actual existence of the ment actually directed in the case. Here, alleged defect, but upon the proposition that as has already been pointed out, all that the objection to the assessment, whether the trial court really decided was that good or bad in law, was patent upon an whether the assessment on the 19 lots was inspection of the assessment roll itself. valid or not, the defect relied upon to in It is suggested not only that the form of validate it appeared upon the face of the pro the judgment was agreed upon by the atceeding and, therefore, did not constitute a torneys for both parties, but that it was en. cloud upon the plaintiffs' title so as to tered by consent. Of course, if it was enenable them to maintain an action to re tered by consent, no matter how much it move a cloud upon their title. The judg. differs from the judgment directed by the ment which the trial court ordered was trial court, there could be no right of appeal. not a judgment invalidating the assessment, The fact that it was so entered, however, but a judgment dismissing the complaint for does not appear upon the face of the papers, the reason stated; and the finding as to the and if it were sought to prevent the review invalidity of the assessment on the 19 lots by the Appellate Division upon this ground

78 N.E.-5

it should have been made the basis of a mo Scott was worth about $100,000. He had tion to dismiss the appeal upon affidavits, four children, the plaintiff and the three sons so that the appellant before that court would already named, who were then his only dehave had an opportunity to controvert the al scendants. Shortly before he gave the deed, legation.

being well advanced in years, he told bis

children at a family consultation that he was CULLEN, C. J., and O'BRIEN, HAIGHT, about to make a will, and that he intended to VANN,

and WERNER, JJ., concur. HIS- give Margaret the house in question, which COCK, J., not sitting.

he had bought for her and in which she then

resided. All of the children approved of this Order modified, without costs to either par- plan, whereupon he told the plaintiff that he ty in this court or in the Appellate Division. would convey to her accordingly, and shortly

thereafter he informed her that he had done

so and had filed the deed for record. Acting (185 N. Y. 427)

on the belief that this was true, she expended DOWNEY V. SEIB.

a large sum of money in repairing and im(Court of Appeals of New York. June 12, proving the house and premises. About the 1906.)

20th of October, 1892, the plaintiff first VENDOR AND PURCHASER–MARKETABLE TITLE

learned that the deed did not convey the -POSSIBLE ISSUE-RIGHTS.

premises to her absolutely and in fee simple, Plaintiff's father conveyed the premises in but only for life, with remainder over, as alquestion to her for life, with remainder to her

ready stated. She at once informed her children living at the time of her death and the issue of any deceased children, and, on her death

father of the fact, and he said that he intendwithout lawful descendants, to his sons or the ed to make her an absolute conveyance, but survivor of them and the issue of deceased sons.

the lawyer who drew the deed had made a It was admitted that the father intended to convey the fee, and thereafter the sons who then

mistake, which he would have corrected at had living issue executed a deed to plaintiff, once by a new deed. John, James, and who was still childless, purporting to convey William Scott, on learning of the mistake, the fee. After the conveyance plaintiff sued

promptly united in a conveyance of the the sons and her father's widow and executor, and in such suit procured a decree reforming the

premises to the plaintiff with full warranty. original deed so that it purported to convey the John Scott, Sr., was ill when the mistake premises to her in fee. Held, that plaintiff's was discovered, and, rapidly growing worse, rights being adverse to the children of the sons and to her own unborn children, neither of

died on the 5th of November, 1892, before which classes of children were represented in

he could execute the new deed, as he had the action, they were not concluded by the decree promised. The plaintiff was then about 30 reforming the deed, and hence plaintiff had not a marketable title to the fee.

years old, and, although she had been mar

ried for more than seven years, she had never Appeal from Supreme CourtAppellate had any children, and for physical reasons Division, Second Department.

expected none. This fact was known to her Submission of controversy on agreed facts father, who in his will, executed after the by Margaret F. Downey against George Dan deed, left her no part of his estate, because Seib. A judgment was directed in favor of he believed that he had already made suitdefendant by the Appellate Division (92 N. able provision for her by the absolute con. Y. Supp. 431), from which plaintiff appeals.

veyance of said premises. Early in 1893 the Affirmed.

plaintiff herein, alleging the foregoing facts The controversy arose over the title to land among others in her complaint, commenced an on Jefferson avenue in the borough of Brook

action against her mother, her three brothers, lyn through the claim of the defendant that none of whom had then been married, and he was not obliged to perform his contract

the executor of her father's will, for a reforof purchase because the title was not market mation of said deed so as to make it conform able. The history of the title, as set forth to the intention of the parties when it was by the parties in their agreed statement of

executed. That action, which was not defacts, is substantially as follows: On the

fended, resulted in a judgment, entered on 13th of November, 1889, one John Scott, Sr., the 2d of November, 1893, reforming the conwho then owned the premises in question, reyance from John Scott, Sr., to his daughter by and his wife Ann, conveyed the same to their making it absolute in form and directing daughter Margaret, who is the plaintiff in this that the register of Kings county should, by action, for life, with remainder over to her apt and proper words, insert in the margin children living at the time of her death, and of the liber where said deed was recorded a the issue of any deceased child, and upon reference to such judgment. Said William her death without lawful decendants to her Scott died before this controversy arose, haybrothers, John, James and William Scott, ing never been married. Some years after who were parties of the third part, “or to the rendition of said judgment, John Scott, the survivors or survivor of them living at Jr., and James Scott, sons of John Scott, Sr., the time of the death of the said Margaret married, and their respective wives are livand the lawful children and issue, if any, of ing. John has two children, and James one. such of said three sons as may then be dead.” The plaintiff has no issue, and her husband At the time he executed said conveyance Mr. is still living. She is now 41 years of age,

has been married 19 years, and is not likely , and could not bind persons not in being, the to become a mother owing to a structural learned judge continued: “That case did defect in the organs of generation. Upon not determine that in a proper action for submitting the controversy the plaintiff de the construction of a will persons not in esse manded judgment that the defendant per- could in no case be concluded by the judgform his agreement to purchase said prem-ment rendered therein. That they could be ises and pay her the balance of the purchase concluded I have no doubt, if the parties to money. The defendant demanded judgment the action properly brought were vested with that the plaintiff could not convey the prem the whole title, subject merely to the continises, as she had agreed, by a good and sufficient gency that it might open and let in persons deed in fee simple, for a return of the sum of thereafter to be born." So Mr. Freeman, in $200 paid on account of the contract of pur- | his valuable work on Judgments, said, in chase, and the sum of $75 for the reasonable section 172: “If several remainders are limexpense of searching the title. The Appel-ited by the same deed, this creates a privity late Division rendered judgment relieving between the person in remainder and all those the defendant from his contract, and award who may come after him; and a verdict and ing judgment against the plaintiff for the judgment for or against the former may be sum of $275, besides costs. From that judg. | given in evidence for or against any of the ment the plaintiff appealed to this court. latter." See, also, Black on Judgments, Isidor Wels, for appellant. Isaac Ringel,

554; 24 Am. & Eng. Encyc. (2d Ed.) 759. for respondent.

The principle upon which the rule above

stated rests is that the tenant of the first VANN, J. (after stating the facts). John estate virtually represents the subsequent Scott, Sr., probably could not write, for he estates, because he has a common interest with signed the conveyance in question as a

the other parties in defending. Mere privity marksman, and perhaps he could not read.

in blood does not authorize one party to At all events, he did not understand that

defend the interest of another. Thus, again cumbersome and complicated instrument,

referring to Mr. Freeman, we find that "Kinwhich, with its parties of the first, second,

ship, whether by affinity or consanguinity, and third parts, its reversions, remainders,

does not create privity, except where it reand wealth of technical words, doubtless re

sults in the descent of an estate from one to flected the learning of the scrivener better another. Therefore there is no privity bethan the instructions of the grantor. The tween husband and wife, or parent and child, unfortunate result is a title in the air, and or other relatives, when neither of them has unmarketable perhaps for a generation. succeeded to an estate or interest in property There would be little difficulty were it not formerly held by the other.” “It is essential for the action, unselfish and well intended, to privity, as the term is here used, that one but not well advised, of the remaindermen in person should have succeeded to an estate or conveying to the life tenant before the judg interest formerly held by another. He who ment of reformation was rendered. While has so succeeded is in privity with him from they wished simply to correct the mistake whom he succeeded, and all the estate or inof their father so far as they could and to

terest which he has acquired is bound by the give their sister a good title, they created judgment recovered against his predecessor such a situation as to leave no one to be while he held such interest or interests." made a party to the action to reform the Freeman on Judgments, $ 162. “If a person is deed, who represented unborn children, and bound by a judgment, as a privity to one of who through his own interest would be pre the parties, it is because he has succeeded to sumed to see that there was a fair trial and some right, title, or interest of that party in a just disposition of the case.

the subject-matter of the litigation, and not It is well settled, as stated by Judge Earl because there is privity of blood, law, or in a recent case, that, "where an estate is representation between them, although privivested in persons. living subject only to the ty of the latter sort may also exist." Black contingency that persons may be born who on Judgments, § 549. While the learned auwill have an interest therein, the living own thors, who are well supported by authority, ers of the estate, for all purposes of any may refer particularly to cases where the litigation in reference thereto and affecting successor has taken the very title of the the jurisdiction of the courts to deal with party against whom the judgment is recovthe same, represent the whole estate and ered, we cannot see why the principle is not stand not only for themselves, but also for equally applicable to the case of the holder the persons unborn. This is a rule of con of one estate and the tenant of the subsequent venience and almost of necessity." Kent v. estate. The case of McArthur v. Scott, 113 Church of St. Michael, 136 N. Y. 10, 17, 32 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015, is N. E. 704, 18 L. R. A. 331, 32 Am. St. Rep. instructive, if not controlling, on the subject. 693. After distinguishing Monarque v. Mon There after-born remaindermen were allowed arque, 80 N. Y. 320, upon the ground that to enforce a trust in lands devised by their the court took jurisdiction of that action grandfather under a will, which was adjudged only by consent, and that therefore its ad void in an action brought and decided before judication bound only those who consented their birth. Mr. Justice Gray, speaking for:

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