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.

Defendant in 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 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 16 of the Constitution of the state that "the General Assembly shall provide by law for the proper ventilation of mines, the construction of escapement shafts, and such other appliances as may be necessary to protect the health and secure the safety of the workmen therein." It will be observed that this is broader than our own Constitution in that it in terms includes appliances "to protect the health." In Re Morgan, 26 Colo. 415, 58 Pac. 1071, 47 L. R. A. 52, 77 Am. St. Rep. 269, the Supreme Court of that state, considering

this provision, said: "These regulations manifestly embrace only such reasonably necessary mechanical appliances as will secure the end in view, and do not include other kinds of health regulations." We conclude that the enactment here in question is not within the meaning of the section of our Constitution herein above set forth, and that it is obnoxious to that provision of the fundamental law of the state which forbids special legislation in certain enumerated cases.

The judgment of the circuit court will be reversed.

Judgment reversed.

HAND, J. (dissenting). I do not agree to the conclusion reached in the foregoing opinion, but entertain the view that the statute referred to therein is a valid exercise of the police power of the state.

(185 N. Y. 303)

BROWN et al. v. McKIE, Tax Collector. (Court of Appeals of New York. June 5, 1906.) 1. APPEAL-REVERSAL-DIRECTING JUDGMENT.

Where the trial judge directed entry of a judgment dismissing the complaint, but a judgment was entered partly in favor of plaintiff, on appeal by the defendant the appellate court should have reversed the judgment and remitted the cause for the entry of a proper judgment.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4592.]

2. JUDGMENT MATTERS CONCLUDED - ESSENTIALS OF ADJUDICATION.

Where, in an action to set aside tax assessments on the ground that they constituted a cloud on plaintiff's title, the court found that the assessment was invalid, and then found that the defect, if any, appeared on the face of the assessment, so as to bring the cause within the rule that an action in equity will not lie to set aside an assessment void on its face as a cloud on title, and a judgment was directed dismissing the complaint, the judgment was not res adjudicata as to the validity of the assessment.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 1251.]

3. APPEAL-DECISIONS REVIEWABLE - JUDGMENT BY CONSENT.

A judgment entered by consent is not appealable. [Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 883.] 4. SAME-DISMISSAL-CONSENT JUDGMENT.

Where the judgment entered was other than the one directed by the trial court, and it did not appear on the face of the record that it

was entered by consent, if it were sought to prevent review on appeal on the ground that it was entered by consent, it should have been made the basis of a motion to dismiss the appeal.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Selden S. Brown and others against John McKie, as tax collector of the West Side sewer in the town of Gates. From an order of the Appellate Division (90 N. Y. Supp. 250, 98 App. Div. 544), reversing a portion of the judgment entered on a decision after a trial at Special Term, plaintiffs appeal. Order of the Appellate Division modified, so as to direct that a portion of the Special Term judgment be reversed and set aside, with a further direction that the case be sent back to the Special Term for the entry of a proper judgment.

Eugene Van Voorhis, for appellants. John A. Barhite, for respondent.

WILLARD BARTLETT, J. This action was brought to set aside certain assessments upon lands belonging to the plaintiffs on the ground that such assessments constituted a cloud upon their title. The trial judge, who rendered a decision in the short form (which has since been abolished), declared that he found the assessment to be void upon its face so far as it related to 62 acres of the plaintiffs' land, but that the assessment as to 19 lots thereof was valid. The decision further declared that inasmuch as the objection to the validity of the assessment appeared upon the face of the assessment roll the case came within the rule that an action in equity would not lie to set aside an assessment void on its face as a cloud upon title, and the judgment accordingly directed that the complaint should be dismissed, without costs.

The judgment which was entered upon this decision did not conform to the direction of the trial judge. Its form appears to have been agreed upon by counsel, and it was evidently signed by the clerk without having been submitted for inspection and approval to the judge who tried the cause. It embodies two adjudications: (1) That the treasurer of the city of Rochester (for whom the respondent has been substituted as defendant) had no lien by reason of the assessment in question upon 62 acres of the plaintiffs' land; and (2) that the City Treasurer had a valid lien by virtue of such assessment upon 19 lots belonging to the plaintiffs. From that part of this judgment declaring that no lien existed upon the 62 acres the defendant appealed to the Appellate Division, where the judgment, so far as appealed from, was reversed by a divided court, and a new trial was granted on the ground that the objection to the assessment, which had been sustained by the decision of the court at Special Term, had been waived by the plaintiffs by reason of their failure to present it to the commissioners of sewer

age on grievance day. From the order of reversal in the Appellate Division the plaintiffs have appealed to this court.

There was no authority on the part of the clerk or anybody else to enter such a judgment us was entered in this action. The trial judge had directed judgment dismissing the complaint. If such judgment had been entered it would have afforded no basis for an appeal to the Appellate Division by the defendant. There is no practice in any system of jurisprudence, so far as we know, which permits a successful litigant to review a judgment in his own favor. The fact that the judgment was not in conformity with the decision was apparent upon a mere inspection of the record; and that fact required a reversal of the judgment, not because of any supposed error in the findings upon which it was founded, but for the simple and manifest reason that it was essentially different from the judgment which had been directed by the trial court. The learned Appellate Division should have reversed and set aside the judgment on this ground alone and remitted the cause to the Special Term for the entry of a judgment in accordance with the direction contained in the decision. This view leads to a modification of the order of the Appellate Division which is now brought here for review, so as to direct that portion of the Special Term judgment appealed from be reversed and set aside solely on the ground that it does not conform to the decision of the trial court, with a further direction that the case be sent back to the Special Term for the entry of a proper judgment.

It is evident that the entry of a judgment in this case, different from that authorized by the decision, was due to the desire of the defendant to review the finding of the trial Judge which declared a portion of the assessment to be invalid. This desire can be ascribed only to the idea that such finding constituted an adverse adjudication upon the validity of the assessment which would be binding upon the defendant in any other Judicial proceeding. That idea, if it existed, can only be ascribed to a misapprehension which seems to be by no means uncommon in the profession as to the effect of a finding which is not necessary to sustain the judgment actually directed in the case. Here, as has already been pointed out, all that the trial court really decided was that whether the assessment on the 19 lots was valid or not, the defect relied upon to invalidate it appeared upon the face of the proceeding and, therefore, did not constitute a cloud upon the plaintiffs' title so as to enable them to maintain an action to remove a cloud upon their title. The judgment which the trial court ordered was not a judgment invalidating the assessment, but a judgment dismissing the complaint for the reason stated; and the finding as to the invalidity of the assessment on the 19 lots 78 N.E.-5

did not thereby become in any wise available to the plaintiffs as evidence that the assess ment was invalid. The judgment which the trial court ordered was an adjudication not in favor of the plaintiffs, but against them; and if the proper judgment had been entered the defendant would have had no reason to appeal therefrom.

It is an established principle relating to res adjudicata "that a former judgment is not available in a subsequent action for another cause, between the same parties, to establish any fact not material to the adjudication actually made in the former action." Cauhape v. Parke, Davis & Co., 46 Hun, 306; affirmed in 121 N. Y. 152, 24 N. E. 185. The case cited was a suit upon a contract in which the plaintiff to prove the existence of the contract put in evidence the judgment roll in a prior suit between the same parties wherein, a referee had found that such a contract was made, but had refused to grant any relief upon the ground that he had no jurisdiction. It was held that inasmuch as the referee had denied the plaintiff any relief on account of this contract in the prior action, his finding that it existed was not a binding adjudication upon the defendant in the second suit. As was said in this court by Andrews, J.: "Whether the alleged contract was valid or void, the point of jurisdiction was decisive against any recovery thereon. The finding that there was such a contract was, at most, mere inducement or introductory to the finding of want of jurisdiction. It was not an essential ground upon which relief was denied, and the denial of relief did not rest upon it." 121 N. Y. 155, 24 N. E. 186. So in the present case, whether the assessment upon 19 lots was valid or invalid, the point that the defect, if it was a defect, appeared upon the face of the proceedings was decisive against the maintenance of an action to prevent a cloud upon the plaintiffs' title. The finding that the assessment was invalid was, at most, mere inducement or introductory to the finding that the defect, if any, was so manifest as to preclude the plaintiffs from maintaining an action of this character. The denial of relief embodied in the direction that the complaint should be dismissed did not rest upon the actual existence of the alleged defect, but upon the proposition that the objection to the assessment, whether good or bad in law, was patent upon an inspection of the assessment roll itself.

It is suggested not only that the form of the judgment was agreed upon by the attorneys for both parties, but that it was entered by consent. Of course, if it was entered by consent, no matter how much it differs from the judgment directed by the trial court, there could be no right of appeal. The fact that it was so entered, however, does not appear upon the face of the papers, and if it were sought to prevent the review by the Appellate Division upon this ground

it should have been made the basis of a motion to dismiss the appeal upon affidavits, so that the appellant before that court would have had an opportunity to controvert the allegation.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, and WERNER, JJ., concur. HISCOCK, J., not sitting.

Order modified, without costs to either party in this court or in the Appellate Division.

(185 N. Y. 427)

DOWNEY v. SEIB.

(Court of Appeals of New York. June 12, 1906.)

VENDOR AND PURCHASER-MARKETABLE TITLE -POSSIBLE ISSUE-RIGHTS.

Plaintiff's father conveyed the premises in question to her for life, with remainder to her children living at the time of her death and the issue of any deceased children, and, on her death without lawful descendants, to his sons or the survivor of them and the issue of deceased sons. It was admitted that the father intended to convey the fee, and thereafter the sons who then had living issue executed a deed to plaintiff, who was still childless, purporting to convey the fee. After the conveyance plaintiff sued the sons and her father's widow and executor, and in such suit procured a decree reforming the original deed so that it purported to convey the premises to her in fee. Held, that plaintiff's rights being adverse to the children of the sons and to her own unborn children, neither of which classes of children were represented in the action, they were not concluded by the decree reforming the deed, and hence plaintiff had not a marketable title to the fee.

Scott was worth about $100,000. He had four children, the plaintiff and the three sons already named, who were then his only descendants. scendants. Shortly before he gave the deed, being well advanced in years, he told his children at a family consultation that he was about to make a will, and that he intended to give Margaret the house in question, which he had bought for her and in which she then resided. All of the children approved of this plan, whereupon he told the plaintiff that he would convey to her accordingly, and shortly thereafter he informed her that he had done so and had filed the deed for record. Acting on the belief that this was true, she expended a large sum of money in repairing and improving the house and premises. About the 20th of October, 1892, the plaintiff first learned that the deed did not convey the premises to her absolutely and in fee simple, but only for life, with remainder over, as already stated. She at once informed her father of the fact, and he said that he intended to make her an absolute conveyance, but the lawyer who drew the deed had made a mistake, which he would have corrected at once by a new deed. John, James, and William Scott, on learning of the mistake, promptly united in a conveyance of the premises to the plaintiff with full warranty. John Scott, Sr., was ill when the mistake was discovered, and, rapidly growing worse, died on the 5th of November, 1892, before he could execute the new deed, as he had promised. The plaintiff was then about 30 years old, and, although she had been married for more than seven years, she had never

Submission of controversy on agreed facts by Margaret F. Downey against George Dan Seib. A judgment was directed in favor of defendant by the Appellate Division (92 N. Y. Supp. 431), from which plaintiff appeals. Affirmed.

The controversy arose over the title to land on Jefferson avenue in the borough of Brooklyn through the claim of the defendant that he was not obliged to perform his contract of purchase because the title was not marketable.

The history of the title, as set forth by the parties in their agreed statement of facts, is substantially as follows: On the 13th of November, 1889, one John Scott, Sr., who then owned the premises in question, and his wife Ann, conveyed the same to their daughter Margaret, who is the plaintiff in this action, for life, with remainder over to her children living at the time of her death, and the issue of any deceased child, and upon her death without lawful decendants to her brothers, John, James and William Scott, who were parties of the third part, "or to the survivors or survivor of them living at the time of the death of the said Margaret and the lawful children and issue, if any, of such of said three sons as may then be dead." At the time he executed said conveyance Mr.

expected none. This fact was known to her father, who in his will, executed after the deed, left her no part of his estate, because he believed that he had already made suitable provision for her by the absolute conveyance of said premises. Early in 1893 the plaintiff herein, alleging the foregoing facts among others in her complaint, commenced an action against her mother, her three brothers, none of whom had then been married, and the executor of her father's will, for a reformation of said deed so as to make it conform to the intention of the parties when it was executed. That action, which was not defended, resulted in a judgment, entered on the 2d of November, 1893, reforming the conveyance from John Scott, Sr., to his daughter by making it absolute in form and directing that the register of Kings county should, by apt and proper words, insert in the margin of the liber where said deed was recorded a reference to such judgment. Said William Scott died before this controversy arose, having never been married. Some years after the rendition of said judgment, John Scott, Jr., and James Scott, sons of John Scott, Sr., married, and their respective wives are living. John has two children, and James one. The plaintiff has no issue, and her husband is still living. She is now 41 years of age,

has been married 19 years, and is not likely to become a mother owing to a structural defect in the organs of generation. Upon submitting the controversy the plaintiff demanded judgment that the defendant perform his agreement to purchase said premises and pay her the balance of the purchase money. The defendant demanded judgment that the plaintiff could not convey the premises, as she had agreed, by a good and sufficient deed in fee simple, for a return of the sum of $200 paid on account of the contract of purchase, and the sum of $75 for the reasonable expense of searching the title. The Appellate Division rendered judgment relieving the defendant from his contract, and awarding judgment against the plaintiff for the sum of $275, besides costs. From that judgment the plaintiff appealed to this court. Isidor Wels, for appellant. Isaac Ringel, for respondent.

a

VANN, J. (after stating the facts). John Scott, Sr., probably could not write, for he signed the conveyance in question as marksman, and perhaps he could not read. At all events, he did not understand that cumbersome and complicated instrument, which, with its parties of the first, second, and third parts, its reversions, remainders, and wealth of technical words, doubtless reflected the learning of the scrivener better than the instructions of the grantor. The unfortunate result is a title in the air, and unmarketable perhaps for a a generation. There would be little difficulty were it not for the action, unselfish and well intended, but not well advised, of the remaindermen in conveying to the life tenant before the judgment of reformation was rendered. While they wished simply to correct the mistake of their father so far as they could and to give their sister a good title, they created such a situation as to leave no one to be made a party to the action to reform the deed, who represented unborn children, and who through his own interest would be presumed to see that there was a fair trial and a just disposition of the case.

It is well settled, as stated by Judge Earl in a recent case, that, "where an estate is vested in persons living subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity." Kent v. Church of St. Michael, 136 N. Y. 10, 17, 32 N. E. 704, 18 L. R. A. 331, 32 Am. St. Rep. 693. After distinguishing Monarque v. Monarque, 80 N. Y. 320, upon the ground that the court took jurisdiction of that action only by consent, and that therefore its adjudication bound only those who consented

and could not bind persons not in being, the learned judge continued: "That case did not determine that in a proper action for the construction of a will persons not in esse could in no case be concluded by the judgment rendered therein. That they could be concluded I have no doubt, if the parties to the action properly brought were vested with the whole title, subject merely to the contingency that it might open and let in persons thereafter to be born." So Mr. Freeman, in his valuable work on Judgments, said, in section 172: "If several remainders are limited by the same deed, this creates a privity between the person in remainder and all those who may come after him; and a verdict and judgment for or against the former may be given in evidence for or against any of the latter." See, also, Black on Judgments, § 554; 24 Am. & Eng. Encyc. (2d Ed.) 759. The principle upon which the rule above stated rests is that the tenant of the first estate virtually represents the subsequent estates, because he has a common interest with the other parties in defending. Mere privity in blood does not authorize one party to defend the interest of another. Thus, again referring to Mr. Freeman, we find that "Kinship, whether by affinity or consanguinity, does not create privity, except where it results in the descent of an estate from one to another. Therefore there is no privity between husband and wife, or parent and child, or other relatives, when neither of them has succeeded to an estate or interest in property formerly held by the other." "It is essential to privity, as the term is here used, that one person should have succeeded to an estate or interest formerly held by another. He who has so succeeded is in privity with him from whom he succeeded, and all the estate or interest which he has acquired is bound by the judgment recovered against his predecessor while he held such interest or interests." Freeman on Judgments, § 162. "If a person is bound by a judgment, as a privity to one of the parties, it is because he has succeeded to some right, title, or interest of that party in the subject-matter of the litigation, and not because there is privity of blood, law, or representation between them, although privity of the latter sort may also exist." Black on Judgments, § 549. While the learned authors, who are well supported by authority, may refer particularly to cases where the successor has taken the very title of the party against whom the judgment is recovered, we cannot see why the principle is not equally applicable to the case of the holder of one estate and the tenant of the subsequent estate. The case of McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015, is instructive, if not controlling, on the subject. There after-born remaindermen were allowed to enforce a trust in lands devised by their grandfather under a will, which was adjudged void in an action brought and decided before their birth. Mr. Justice Gray, speaking for