proach of trains, before entering upon such proach to said crossing before he drove or track, and that if, by such precautions, he went onto said crossing, at the time he recould have discovered the approach of the ceived the injury from the effect of which he defendant's train, and avoided the injury, he died?” To this question the jury returned could not recover. In affirming the judg- a negative answer. It is clear that the quesment we said: “It is no doubt true that it is tion, as proposed by the defendant, called for the duty of a person about to cross a railroad a finding as to mere evidentiary facts, none track to approach cautiously, and endeavor of which, if found, could have been controlto ascertain if there is present danger in ling. There was no error, therefore, in recrossing; and, where the railroad track and fusing to submit it to the jury in that form. crossing are so situated that the approach of Whichever way the jury might have found, a train cannot be seen, it may be the duty of their finding could have had no effect upon a person about to cross to stop and look, to the general verdict. On this point we refer ascertain if a train is coming; but it is al- to what we have more fully said in our disways a question of fact for the jury to deter-cussion of the same proposition in Railway mine from the evidence, whether the person Co. v. Dunleavy, ante, 15. injured has exercised proper care and caution The residue of the propositions discussed in crossing a railroad track, and not a ques- by the appellate court in its opinion do not tion of law. It was the province of the jury seem to be insisted upon by the defendant's to determine whether the plaintiff was guilty counsel here, and we therefore infer that, as of negligence, and not for the court to tell to those questions, they acquiesce in the rules the jury that certain facts constituted negli- laid down by that court. None of the assigngence. In Railroad Co. v. O'Connor, 119 ments of error insisted upon here are in our Ill. 586, 9 N. E. Rep. 263, in discussing the opinion sustained, and the judgment of the same proposition, we said: “It is only when appellate court will therefore be affirmed. the conclusion of negligence necessarily re- Judgment attirmed. sults from the statement of fact that the court can be called upon to say to the jury

(114 N. Y. 518) that a fact establishes negligence as a matter BROWNELL v. Town OF GREENWICH.1 of law. If the conclusion of negligence, un- (Court of Appeals of New York, Second Divisder the fact stated, may or may not result,

ion. June 11, 1889.) as shall depend on other circumstances, the MUNICIPAL CORPORATIONS – BONDS — PLEADINGquestion is one of fact for the jury." See,

JURISDICTION. also, Railroad Co. v. Pennell, 94 Ill. 448; 1. Laws N. Y. 1869, c. 907, authorize towns to isSchmidt v. Railway Co., 83 Ill. 405; Railway railway company in the construction of its road,

sue bonds to raise money with which to assist a Co. v. Moranda, 108 III. 576.

when a majority of the tax-payers shall petition It is insisted that, if the court ruled cor- accordingly. But no such bonds shall be issued rectly in modifying the defendant's first and until the county judge, after duo notice by publiin refusing its third instruction, it, by the cation, shall determine that the petition is sufi

cient, and signed by the proper persons, etc. After same rule, must be held to have committed entering this judgment, the county judge is rean error in giving to the jury the plaintiff's quired to appoint commissioners to issue and sell third instruction, which held, in substance, the bonds, and to invest the proceeds in railway that, if the defendant omitted to perform its so issued, an agreed statement of facts was filed,

bonds. In a suit involving the validity of bonds statutory duty in relation to ringing a bell or upon which the question was to be determined. It sounding a whistle on its engine, such con- recited that the county judge “duly adjudged” the duct constituted a prima facie case of negli- due proof of publication of notice of the petition,

sufficiency of the petition, etc., and also recited gence. We are unable to concur with coun-etc. It further recited that the commissioners sel in this view. A statute commanding an were “duly appointed.” Held, that the agreed act to be done creates an absolute duty to statement of facts should be construed according perform such act, and the duty of perform- pleading a judgment of a court of special jurisdic

to Code Civil Proc. N. Y. § 532, providing that in ance does not depend upon, and is not con- tion it is unnecessary to state the facts conferring trolled by, surrounding circumstances. Non- jurisdiction, but the judgment may be alleged to performance of such statutory duty, result-have been duly given, and that it sufficiently ap

peared therefrom that the question of the suffiing in injury to another, may therefore be ciency of the petition was adjudicated by the county pronounced to be negligence as a conclusion judge, and that the commissioners were properly of law.

appointed, as the word “duly” implies the reguSeveral questions of fact were, at the in- larity of the proceedings.

2. It is not necessary that the commissioners stance of the defendant, submitted to the jury should act personally in selling the bonds and infor special findings, one of which was modi- vesting the proceeds, but they may do so through fied by the court, and submitted as modified. the medium of a broker.

3. The act mentioned required the bonds to be The action of the court in making such mod- payable within 30 years from date. An amendification is assigned for error. Said question atory act taking effect May 12, 1871, authorized the was as follows, the modification consisting in commissioners to make them payable at any time the insertion of the words in italics: “Could 1,1871, which were dated March 25th, and were pay

within 30 years. Plaintiff bought 5 bonds on July the deceased, Edward Voelker, if he had used able 20 years from date. Held, that the bonds were ordinary care and diligence, have seen or issued when sold, and, under the amendment, were heard the defendant's train approaching the


4. Though all the bonds were dated on the same crossing over the St. Clair avenue, in East St. Louis, if he had looked or listened for its ap Affirming 44 Hun, 611.

day, and payable 20 years from date, while the Said judgment contains certain recitals, and amendatory act provided that but 10 per cent, of states that it was made "on reading the order them should mature during any one year, they would not be invalid as to plaintiff, who was not granted on the presentation of said petition, shown to have knowledge of the irregularity, or and after taking due proof of the notice isthat any other bonds were issued besides those he sued thereon, and of the due publication of purchased.

5. The amendment is not unconstitutional in said notice, and of the facts set forth in said limiting the time within which the bonds shall be petition.” The judgment was duly entered, made payable, when applied to bonds issued under and recorded in said clerk's office on the same a petition filed and proceedings had before its pas- day that it was rendered. The taxable propsage, as the legislature might have left that question to the discretion of the commissioners. erty of the town as shown by said assessment BROWN, J., dissenting.

roll was the sum of $1,404,696. Immediately

after said adjudication and order, the county Appeal from a judgment of the general judge “duly appointed and commissioned term of the supreme court in the Third ju- three duly-qualified commissioners for said dicial department, rendered upon a case con- town for the purposes named in the act. Said taining a statement of the facts as agreed commissioners accepted the appointment, upon by the parties pursuant to section 1279 were duly sworn, and entered upon the disof the Code of Civil Procedure. On Decem-charge of their duty. Thereupon, assuming ber 31, 1884, the plaintiff commenced an'ac- to act as officers of the town, they prepared, tion against the defendant, based upon the subscribed, and sealed 80 bonds, of $500 each, facts hereinafter stated, but subsequently the dated March 25, 1871, payable July 1, 1891, parties agreed that said action should be sus- with semi-annual interest, purporting to be pended, and the questions in difference sub- the bonds of the town, and reciting that they mitted to the supreme court as of the date were issued by authority of said act, with the when the action was commenced. They fur-assent of said town, obtained according to ther agreed that, for the purpose of the appli- law. Thereafter they placed said bonds in cation of any statute of limitations or claim the hands of one Andrews, a bank president, of laches, the case containing the agreed and the treasurer of said railroad company, statement of facts should be deemed to have with directions to sell the same for cash, and been duly filed on said 31st of December, to apply the proceeds to the purchase, for said 1884. The most material facts upon which town, of the second mortgage bonds of the the controversy depends, as set forth in the railroad company at 80 cents on the dollar. case, are as follows: The defendant is a do- Pursuant to such directions said Andrews mestic municipal corporation, and is one of sold the bonds of the town, from time to time, the towns composing the county of Washing- as he had the opportunity, to different purton, in this state. In 1870, a railroad corpo-chasers for cash, and invested the proceeds ration known as the “Greenwich & Johnson- in said railroad bonds at 80 per cent. The ville Railroad Company" was trying to ex- railroad company used the avails mainly in tend its railroad by a bridge across the river the construction of said bridge, continuing dividing said town of Greenwich from an ad- the road into the town, and in the erection of joining town, where its terminus then was, depots, offices, and other terminal buildings and to erect a depot and other terminal situate in said town. The railroad has been structures on the Greenwich side of the in actual operation ever since, and the defendstream. In order to accomplish this, the ant had been in the full enjoyment of the adcompany, about August, 1870, issued its vantages it sought. The commissioners rebonds for $50,000, secured by a second mort-ceived from said Andrews railroad mortgage gage upon the road and franchises. Subse-bonds to the amount of $50,000 par value, quently certain proceedings were instituted, and, so far as appears, the town still owns pursuant to chapter 907 of the Laws of 1869, the same. None of the funds received by to issue the bonds of said town, to aid in the Andrews upon the sale of the bonds of the construction of said road. What those pro- town actually went into the hands of the ceedings were does not expressly appear, but commissioners, and he did not account to the case states that on the 21st of March, them therefor except by delivering to them 1871, the county judge of Washington coun- the railroad bonds for the avails thereof, as ty “duly adjudged, determined, and ordered” aforesaid. On July 1, 1871, the plaintiff that the allegations contained in a petition of bought of said Andrews five of said town certain tax-payers of said town, duly verified bonds at par, and paid therefor the sum of and presented to said judge under and by $2,500 in cash, which was invested for the virtue of said act, “are proved and substan- town in railroad bonds, and applied to the tiated to my satisfaction, and that the said use of the railroad company in the manner petitioners do represent a majority of the above stated. Until 1877, said company, in tax-payers of said municipal corporation of lieu of paying interest upon its bonds held said town of Greenwich, in said county of by the town, paid semi-annually to the holdWashington, as shown by the last preceding ers of the town bonds, including the plaintax-list or assessment roll of said town, and tiff, the interest coupons attached thereto; do represent a majority of the taxable property and for the years 1877, 1878, and up to and of said town upon said list or roll, and that this including January 1, 1879, the defendant order be entered and recorded in the office paid the interest semi-annually to said holdof the clerk of the county of Washington.” Ters, with moneys raised by taxation in the


usual way. The last payment by the town both. The expression "duly adjudged," as to the plaintiff was the sum of $175, made used in the statement for the submission of during the latter part of January, 1879, as this controversy, therefore, means adjudged and for the interest due on the 1st of that according to law,—that is, according to the month upon his five bonds. Since 1880 the statute governing the subject,—and implies town has repudiated said bonds and coupons, the existence of every fact essential to perfect and has insisted that it was not liable there- regularity of procedure, and to confer jurison, mainly upon the ground that the bonds diction both of the subject-matter and of the are void on their face, because issued for a parties affected by the judgment, including term not authorized by law. It is further the defendant. A judical oificer has jurisdicadmitted that the plaintiff purchased his tion, when he has power to inquire into the bonds in good faith, and upon the represen- facts, to apply the law, and to pronounce the tation of said Andrews that they were good judgment. Any step in the cause of proceedand valid, and in the belief that they were ing before hiin is necessarily the exercise of

A majority of the commissioners in- jurisdiction, and that step cannot be “duly” tended to properly perform their duties as taken unless jurisdiction exists. The final such, and believed that the bonds were valid step-in particular, the making of the judgand legal. The remaining commissioner is ment-cannot be “duly” taken unless all of now deal, and his motives are not known, the preliminary steps upon which it is based except that he acted with his colleagues in have likewise been duly taken. We also in all matters pertaining to the bonds. think that the rule of pleading facts prescribed

Esek Cowen, for appellant. D. M. West- by section 532 of the Code of Civil Procedure fall, for respondent.

may with propriety be applied to the state

ment of facts required by section 1279, and VANN, J., (after stating the facts as that whatever is a sufficient statement of the above.) By the bonding act of 1869 the de- facts, according to the former, to impliedly fendant was transformed from a mere politi-allege jurisdiction, is a sufficient statement cal division of the state, with limited corpo- of the fact, according to the latter, that jurisrate powers, into a municipal corporation, diction existed. Rockwell v. Merwin, 45 N. with power to borrow money on an extensive Y. 166. There is no reason for greater particscale, and to invest it in the stock or bonds ularity in admitting facts for the submission of such railroad company as a majority of its of a controversy than in alleging them in a tax-payers, representing a majority of its pleading. The same reasoning applies with taxable property, should designate. Laws equal force to the admission that the com1869, c. 907, p. 2303; Horn v. Town of New missioners were duly appointed and comLots, 83 N. Y. 100, 107. Those powers, missioned. This means that they were aphowever, remained dormant, and wholly in- pointed by due authority, or by the authority effectual for any purpose, unless they were of law. According to the statute, the county called into action by the determination of the judge had no authority to appoint them until county judge, based upon such proceedings he had adjudged and determined, in the manas the statute required. The first question ner and upon the proofs required, whether a to be decided, therefore, is whether the ad- majority of the tax-payers and taxable propjudication of the county judge was valid and erty were in favor of bonding. Laws 1869, binding upon the town, so as to bring into p. 2305, § 3. The persons appointed, thereoperation those new and important powers fore, became commissioners of the town de conferred by the statute under consideration. jure, empowered to represent and to act for The parties admit that the county judge “duly the town. Id. They were authorized to exadjudged, determined, and ordered,” the ju- ecute and issue "the bonds of such municipal risdictional facts being first recited, that the corporation,” and to atfix “the seal of such allegations of the petition are substantiated, corporation” thereto, (section 4;) “to suband that the petitioners represent a majority scription (for railroad bonds or stock) in the of the tax-payers, and a majority of the tax- name of the municipal corporation which able property, of the town, according to the they represent;" "to represent, either in perlast assessment roll. They further admit son or by proxy, such municipal corporation that the county judge duly appointed and at all meetings of the railroad bondholders or commissioned the commissioners, who ac- stockholders;" to "vote for directors on the cepted, qualified, and acted. The statute stock of such town," (section 5;) to provide authorized the county judge to so “adjudge a sinking fund to pay the bonds of the town, and determine” only in case it had been in and, under certain circumstances, to sell the all things complied with. Laws 1869, c. 907, railroad stock or bonds belonging to the town, § 2. How, then, could he “duly” adjudge (section 6.) The acts of the commissioners unless every step required had been taken? as to all matters within the scope of the au“Duly," in legal parlance, means according thority conferred upon them by the statute to law. Gibson v. People, 5 Hun, 542, 543; were the acts of the town. Gould v. Town People v. Walker, 23 Barb. 304; Fryatt v. Lindo, 3 Edw. Ch. 239; Burns v. People, 59 1 Section 532 provides that in pleading a judg. Barb. 531, 543; Webb v. Bid well, 15 Minn. ment of a court of special jurisdiction it shall be 479, 484, (Gil. 394.) It does not relate to tion, but it shall be sufficient to allege that the

unnecessary to plead the facts conxerring jurisdicform merely, but includes form and substance judgment was duly given.

of Oneonta, 71 N. Y. 298. Hence irregu-| were issued prior to the passage of the act of larities in the manner in which the commis- May 12, 1871. The plaintiff in that case sioners may have performed their duties can- bought his bonds in April of that year. The not affect the validity of the bonds issued in five bonds in question, therefore, were issued the hands of an innocent holder for value. on the 1st of July, 1871, when they were first Town of Solon v. Bank, 21 N. E. Rep. 168. delivered as evidence of an existing debt.

It was not necessary that merely executive The plaintiff had the right to assume that acts, not involving the exercise of discretion, they were issued under the statute as it stood should be done by the commissioners personal at the date of the delivery, for he was dealing ly, but such acts might be done by another un- with actual commissioners, clothed with all der their direction. Mayor, etc., v. Sands, 105 the authority that the statute conferred. The N. Y. 210, 217, 11 N. E. Rep 820. “When mere inspection of his bonds would show that a statute commands an act to be done, it au- they were made payable as the statute then thorizes all that is necessary for its perform- required. It does not appear that he had seen ance.” Sedg. Const. & St. Law, 228. Hence any of the bonds except those which he purthe commissioners could lawfully employ Mr. chased, or that he knew that all of the bonds Andrews as a broker to sell the bonds, and were payable at the same time, or even that invest the proceeds according to their instruc- any other bonds had been issued at the date tions. The plaintiff, therefore, when he paid of his purchase. He was not bound to exhis money for the bonds in question, paid it to amine the entire series to see that no more the town, and the town received it and invest- became due in a single year than the statute ed it in railroad bonds, which it is presumed to permitted. IIe was bound to examine his still hold, and which, in the absence of proof own bonds, and was doubtless charged with to the contrary, are presumed to be of value. knowledge of the bonding act and the bondThe defendant received all that it contracted ing roll, as the one was a public statute and for, but what did the plaintiff receive? The the other a public record, and both were acdefendant contends that he received nothing cessible to all. How could he examine the of any value, because, as it claims, the bonds remaining bonds? If they were not then isdelivered to him by the commissioners, or by sued, but still in the hands of the commissiontheir direction, are void, inasmuch as they ers, an examination would be useless, for a were made payable in 20 years, while the purchaser of bonds issued according to law bonding act of 1869 (section 4) only authorized cannot be affected by the subsequent acts of the issue of bonds "payable at the expiration the commissioners, in issuing other bonds in of thirty years from their date.” On the 12th a manner not in accordance with law. If they of May, 1871, an act was passed by the legis- were issued, how could he find them, scatlature amending section 4 of the bonding act tered in the hands of unknown owners? It " by adding at the end thereof” the following would be unreasonable to charge him with provision: “The said commissioners may knowledge of the contents of the rest of the issue the said bonds payable at any time they bonds, or to declare his vonds void, because may elect, less than thirty years,

* the others, of which he knew nothing and but they shall not so issue the bonds that had no means of knowing, were in fact made more than ten per cent. of the principai of payable at a time not authorized by the statthe whole amount of bonds issued shall be- ute. A purchaser, under the circumstance, come due or payable in any one year.” Laws disclosed, might assume that the defendants 1871, c. 925, § 6, p. 2119.

through its lawfully appointed commissionThe question now arises whether the bonds ers, would not do an act utterly void, and of the plaintiff were actually issued before or thereby commit a fraud upon one of its citiafter May 12, 1871, the date when said zens by taking his money without any conamendment took effect. They bear the date sideration. of March 25, 1871, and are presumed to have The only other claim of the appellant that been executed at that time; but executing is we deem it important to notice is that the act not issuing, for they might be fully executed, of 1871 does not apply to bonds issued in but never issued. It is clear that the pur- pursuance of a consent of tax-payers given chaser of a bond from the obligor named and adjudicated upon before that statute was therein simply lends the latter money. Cod- passed, and that, if the act can be construed dington v. Gilbert, 17 N. Y. 489; Ahern v. as applying to such bonds, it is, to that exGoodspeed, 72 N. Y. 108. The essence of tent, unconstitutional and void. In Bank the original transaction between the parties, v. Town of Seneca Falls, 86 N. Y. 317, it therefore, was a loan of money, secured by was held that the act of 1871 applied to prothe bonds of the borrower. The bonds had ceedings regularly taken prior to its passage. no legal inception, and could not become in that case the proceedings were terminated valid obligations, aside from any other ques- in August, 1870, when the county judge tion, until actually delivered for a valuable made the adjudication and record, and apconsideration. Under the circumstances, we pointed the commissioners, who delayed acthink that the delivery of the bonds to the tion until after May 12, 1871, when they plaintiff determines the date when his bonds subscribed for stock, and issued the bonds. were issued. In this vital respect the case No further consent of the tax-payers was obdiffers from Potter v. Town of Greenwich, tained. In Angel v. Town of Hume, 17 Hun, 92 N. Y. 662, 26 Hun, 326, where the bonds '374, the adjudication was made April 22,

1871, and the bonds were issued in February 204; Rogers v. Stephens, 86 N. Y. 623. If and July, 1872. In both of these cases it the legislature has power, after bonds have was held that the judgment of the county been issued, to correct irregularities of ofjudge, based solely upon the consent of the ficial action without affecting the consents of tax-payers to bond pursuant to the act of the tax-payers previously given, its power to 1869, was not nullified nor avoided by the authorize a change in the form of the bond amendment of 1871. In neither of those cases before it is actually issued, without impairing had any tax-payer consented to such an issue such consents, cannot well be denied. Withof bonds as the amended act gave the com- out examining any of the other grounds upon missioners the discretion to issue. In Gould which we are urged to affirm the judgment v. Town of Sterling, 23 N. Y. 456, the con- appealed from, we think that it should be sents were obtained prior to September 29, aífirmed for the reasons already stated. 1852, (pages 443, 445,) while the bonds were issued in August, 1853, (page 457.) In the FOLLETT, C. J., and HAIGHT, J., concur. mean time an act had been passed authoriz- POTTER, J., not sitting. ing the interest upon the bonds to be made payable on the 1st days of January and July PARKER, J., (concurring in result.) By the of each year, instead of March 1st, as was act of May 12, 1871, the commissioners were provided by the original bonding act. authorized to issue bonds, payable in 20 years,

The only authorities cited to sustain the aggregating in amount $4,000. So much of position that the act of 1871 is unconstitu- the issue as was in excess of $4,000 was tional are People v. Batchellor, 53 N. Y. 128, without authority of law, and void. But the and Horton v. Town of Thompson, 71 N. Y. subsequent unauthorized action of the com513. We do not consider either of them ap- missioners in issuing bonds of the town could plicable to this case. The only constitutional not, and did not, invalidate or affect the questions involved in these cases were, in bonds aggregating $4,000, for which act the former, whether the legislature could authorizations had been duly given. The comcompel a town to become a stockholder in a missioners sold to this plaintiff bonds of the railroad corporation by exchanging its bonds face value of $2,500,-$1,500 less in amount for stock without its consent in any way than the authorized issue. It does not appear given; and in the latter, whether the legis- that after the passage of the act mentioned, lature could make a void bond valid after it and prior to the sale made to the plaintiff, had been actually issued to a person who the commissioners sold any other bonds. We could not claim as a bona fide holder. In are unable to say from the evidence before us the case under consideration the consents had that plaintiff's bonds were not issued to him been duly given, and an adjudication duly before the limit of $4,000 was exceeded. The made to that effect, when the amendatory act plantiff then seeks to recover upon bonds regwas passed. There was no want of power, ular upon their face, and in an amount less therefore, to issue bonds, as the conditions than the issue permitted by statute. The deprecedent had all been complied with. The fendant attacks their validity upon the ground, amendment did not extend to matters of ju- among others, that the commissioners exrisdiction, “but to that which the legislature ceeded their authority by issuing more bonds might have dispensed with the necessity of payable in 20 years than the statute permitted. by the prior statute.” The bonding act would The burden, therefore, rested upon the denot have conflicted with the constitution, if fendant to establish such defense. It was it had contained no provision as to when the incumbent upon it to show that plaintiff's bonds should be made payable, but had left bonds did not constitute a portion of the that to the discretion of the commissioners. authorized issue of $4,000. This it omitted That provision, therefore, so far as the con- to do, and as a necessary consequence failed stitution is concerned, was immaterial, and to establish the defense interposed. These could be modified, even retrospectively, at the views lead me to concur in the result arrived discretion of the law-making power. In Will- at by Judge VANN. iams v. Town of Duanesburgh, 66 N. Y. 137, the court said: “In this case the legislature BRADLEY, J., concurs in the result on the could originally have authorized the bonds of ground that the bonds in question were isthe town * * * to be issued under the sued after the act of May 12, 1871, (chapter precise circumstances existing when they 925,) took effect, and that it may be presumed, were issued; and, if the acts of the commis- nothing appearing to the contrary, that those sioner have, by subsequent legislation, been bonds at the time of their issue did not make ratified, it is equivalent to an original au- the amount issued after such act took effect thority to do what has been done. The au- exceed $4,000. thorities as to the legislative power to validate by subsequent legislation acts done in Brown, J., (dissenting.) I dissent upon assumed execution of a statute authority the ground that the tax-payers of the defendwhich has not been strictly followed, are ant never gave their consent to the issuing numerous and decisive.” People v. Mitchell, of bonds payable in 20 years. Such consent 35 N. Y. 551; Town of Duanesburgh v. Jen- was essential to the validity of the instrukins, 57 N. Y. 177; People v. McDonald, 69 ments. The proceedings before the county N. Y. 362; Tifft v. City of Buffalo, 82 N. Y. judge which terminated in the appointment

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