Leonard v. City of Brooklyn.

well-established principle, and changes a rule which has long been settled. To make such a material alteration, the law should be plain, explicit and clear, and there is no ground for holding that it was the intention of the law-makers to confer upon a certain class of creditors the right to a lien upon property held for public use by a municipal government unless there is an express provision to that effect. The statute does not include such a case either in terms or by necessary implication.

As the plaintiff's demand cannot be enforced as a mechanics' lien upon the property held for public use by the corporate authorities of the city of Brooklyn, which is claimed to be liable therefor, upon any legal ground, the judgment must be affirmed.

All concur.

Judgment affirmed.

NOTE BY THE REPORTER.-The question in Darlington v. Mayor, 31 N. Y. 164, cited as the basis of the principal case, was the constitutionality of the act compensating parties whose property may be destroyed in consequence of mobs or riots, passed April 13, 1855, and in considering that question it was incidentally held that judgments pursuant to the provisions of that act, for riot damages, have the same force against the property of the city, as judgments recovered for any other cause of action. Or. that point the court say: "It is plain enough that it would not be a judicious administration of the affairs of a city to permit its property to be subjected to a forced sale on execution; and hence it has become a usual practice to add to the sums included in the annual tax levy any amount for which judgments have been recovered against the corporation, and to authorize the borrowing of money if necessary, in order to pay such judgments. Instances of such legislation occur in many of the recent statutes. A municipal corporation, equally with a private corpora tion, may have its property taken in execution, if payment of a judgment is not otherwise made. I am far from supposing, however, that such estate, real or personal, as may by law, or by authorized acts of the city government, be devoted to public use, such as the public edifices, or their furniture or ornaments, or the public parks or grounds, or such as may be legally pledged for the payment of its debt, can be seized to satisfy a judgment. Such clearly cannot be the case, for these structures are public property, devoted to spe cific public uses, in the same sense as similar subjects in the use of the State government. The argument that I am examining supposes that the city may possess other property, held for purposes of income or for sale, and unconnected with any use for the purposes of the municipal government. Such property, the defendants' counsel insists, and for the purpose of the argument I concede, is liable to be levied on and sold to satisfy a judgment rendered against the city corporation." "Let us suppose the city to be the owner of a parcel of land not adapted to any municipal use, but valuable for sale only to private persons for building purposes or the like: No one, I think, can doubt but what it would be competent for the legislature to direct it to be sold, and the proceeds to be devoted to some municipal or other public purpose within the city, as a court-house, a hospital or the like; and yet, if the argument on behalf of the defendants is sound, it would be the taking of private property for public use without compensation, and the act would be void."

Since the principal case arose the question has lost much of its significance in this State, for a statute has been enacted, granting a lien on moneys in the treasury for municipal public work. Laws of 1878, ch. 315.

The doctrine of the principal case is substantially sustained by Chicago v. Hasley, 25 Ill. 595; Crafts v. Elliotsville, 47 Me. 141; Foster v. Fowler, 60 Penn. St. 30; Davenport v. Ins. Co., 17 Iowa, 276; President v. Indianapolis, 12 Ind. 620; Gue v. Tidewater, 24 How. 263; Stewart v. Jones, 40 Mo. 140.

Leonard v. City of Brooklyn.

In some other States beside New York the matter is regulated by statute. Indeed, it is claimed by Mr. Jenks, whose learned argument is cited as the appellant's authority in the principal case, that the doctrine is otherwise at common law. He says (14 Alb. L. Jour. 179):

"From Maine to California, and thence to Oregon, Utah and Arizona, exemption is made by statute of public buildings, such as court-houses, jails, etc. See R. S. Maine, 1871, pp. 129, 667; Cal. Civ. Code, § 1241, p. 235; and Gen. Laws, vol. 3, Sup. p. 9131; Arizona Compiled Laws, ch. 37, p. 340; Oregon Gen. Laws, 164-5. In almost every State, except this, provisions are made by statute for the exemption of a certain class of property from levy and sale on execution. In Missouri, for instance, all court-houses, jails, clerks' offices, and other public buildings, and the lots of ground on which they stand, shall be exempt from attachment and execution when owned by the county in which they are situated, or any municipal corporation therein; also all burial grounds, specified in chapter 11 of these statutes. Wagoner's Mo. Stat., vol. 1, 1870, p. 604, § 10; id. 294-5, §§ 29 and 34. Hence the decision in Stewart v. Jones, 40 Mo. 140.

"But these identical two cases (Stewart v. Jones and Gue v. Tide Water, etc.) are the foundation of the doctrine in all the books, that property of a municipal corporation is not subject to levy and sale on execution, unless made so by statute (except, perhaps, Ang. & A. p. 658, where they are made a foot-note)."

And also 14 Alb. L. Jour. 102:

"We challenge any proof, or authority, to the effect that such a doctrine, independently of statutory enactments, prevails in any State of the Union. While quite the opposite has been held in several of the States under statutory enactments, or otherwise, the rule is exclusively Pennsylvanic; and it is more than probable that Brinckerhoff v. Mayor, etc., follows Gue v. Tide Water, etc., infra, in theory, which last decision was based upon laws peculiar to Maryland and Pennsylvania, and upon decisions of courts of the latter State (before cited, p. 34); a State in which the principles which the English Court of Chancery has adopted respecting charitable uses under the statute of Elizabeth obtain, not indeed by force of the statute, but a part of its common law' (A. & A. on Corp. 150); and where, nevertheless, it is held a church edifice is subject to a mechanic's lien, but not the graveyard on which it stands, because the building was designed for the worship of God -the ground for the burial of man; the one for the edification of the living- the other as a receptacle for the dead. The purposes, although combined, are entirely distinct in their nature and it was, therefore, error to include the graveyard as subject to the lien." Beam First Meth., etc., cited supra.

v.

Mr. Jenks says of Gue v. Tide Water, 14 Alb. L. J. 178, that it was there held, "that the franchise, or right to take toll on boats going through the canal, would not pass to the purchaser under that execution, a fieri facias issued to the United States marshal for the district of Maryland. The court say that "the franchise being an incorporeal hereditament, cannot, upon the settled principles of the common law, be seized under a fieri facias; if it can be done in any of the States, it must be done under a statutory provision of the State. ** * That if the sale had taken place, the result would have been to destroy utterly the value of the property owned by the company, while the creditor himself would, most probably, realize scarcely any thing from the useless canal locks and lots adjoining them. The records and proceedings before us show that there were other creditors of the corporation to a large amount, some of whom loaned money to carry on the enterprise; and it would be against the principles of equity to allow a single creditor to destroy a fund to which other creditors had a right to look for payment, and equally against the principles of equity to permit him to destroy the value of the property of the stockholders by dissevering from the franchise property which was essential to its useful existence. In this view of the subject, and the court do not deem it proper to express any opinion as to the right of this creditor in some other form of judicial proceeding to compel the sale of the whole property of the corporation including the franchise for the payment of his debt. *

If the appellant has a right to enforce the sale of the whole property including the franchise, his remedy is a court of chancery, where the rights and priorities of all the creditors may be considered and protected, and the property of the corporation disposed of to the best advantage for the benefit of all concerned. A court of common law, from the nature of its jurisdiction and modes of proceeding, is incapable of accomplishing this object."

Leonard v. City of Brooklyn.

This case not only arose in Maryland, where the statutes of mortmain and disabling statutes also were received, and where "real estate was not liable to be taken and sold on execution, at the suit of a citizen, until made so by statute."

In Gooch v. Gregory, 65 N. C. 143, 144, Justice DICK, delivering the opinion of the court upon the question, whether an execution may issue on a judgment against a county, says (citing ch. 20, act of 1868): "Thus it appears that a county can only acquire and hold property for necessary public purposes, and for the benefit of all its citizens; and the plainest principles of public policy prevent such property from being sold under execution for the advantage of an individual. Bouv. Inst. 176. These rules of law are not applicable to a municipal corporation, created by a charter which is voluntarily accepted by the corporation for private emolument and advantage. Such corporations are sometimes charged with the performance of public duties; but so far as the grant is for private purposes and advantage, they are regarded as private corporations and subject to like liabilities." Citing Bailey v. Mayor of N. Y., 3 Hill, 531; Dartmouth College v. Woodward, 4 Wheat. 518.

But Mr. Justice WALKER, in City of Chicago v. Hasley, cited ante, says, in dissenting: "After a careful examination and a mature consideration of the reasons presenting themselves to my mind, I am unable to concur in the conclusion at which my associates have arrived in this case. Owing to the importance of the question involved, I feel constrained to present a portion of the reasons which have led me to the conclusion at which I have arrived. These bodies (municipal corporations), like ordinary corporations, derive all their powers from the sovereignty of the State, and are completely under its control. They are, it is true, created alone for the better government of the local division to which their jurisdiction is confined, and that jurisdiction may be curtailed or enlarged at pleasure by the legislature. The object of their organization is not the advancement of individual gain, commercial enterprise, or pecuniary interest, either of individuals or the body politic. This seems to be the distinguishing feature between bodies of this description and private corporations, which are usually created for some, if not all, of those purposes. As municipal corporations are created alone for public, and not for private benefit, it may constitute a cogent reason why the legislature should exempt their property from sale on executum, or that such process should not issue against them, but does not, as I conceive, create the exemption. If such an exemption exists, I feel confident that it is not by the common law. After a careful search of all the elementary hooks and reports of adjudged cases which have come within my reach, I am unable to find such a rule has ever been announced. I find at the common law that they were liable to be sued and judgment ren. dered against them precisely as if they were corporations created for private purposes. When it is remembered that the execution is the fruit of the judgment, if such an important exception existed, it would certainly have been announced, either in Great Britain or some of the States of the Union. To my mind, the fact that the question has never arisen, is conclusive that such an exception does not exist at common law. On the argument it was urged that, as the legislature has provided that execution shall not issue upon judgments recovered against counties, for the same reason municipal corporations were designed to be embraced. To my mind, it is only necessary to refer to the rule of interpretation, that the expression of one thing is the exclusion of another, as a complete answer to this position. If cities, towns, villages, or other such bodies, had been designed to be embraced, it seems to my mind that very different and more appropriate language would have been employed."

Browning v. Home Insurance Co.

BROWNING V. HOME INSURANCE CO.

(71 N. Y. 508.)

Fire insurance-warranty of occupation — concealment.

The description in a fire insurance policy, of a building insured, as a "dwelling-house," is not, in the absence of misrepresentation or concealment as to the fact of occupation, a warranty that the building is occupied as a dwelling,* and the omission of the applicant to disclose the fact that the building is vacant, in the absence of any inquiry on that point, is not a breach of a condition that any omission to make known every material fact shall avoid the policy.

A

CTION on a policy of fire insurance, insuring a "dwellinghouse," loss payable to the plaintiff, as mortgagee. The policy contained a provision that " any omission to make known every fact material to the risk, either in a written application or otherwise," should render the policy void. The premises were vacant when insured, and so continued till destroyed by the fire. The insured did not inform the company of the fact of such vacancy. The plaintiff had judgment.

E. B. Convers, for appellant. The description of the premises as a dwelling-house was a warranty that it was occupied. Alexander v. Ins. Co., 66 N. Y. 464; O'Neil v. Buff. F. Ins. Co., 3 id. 122. The neglect of the insured to disclose the fact that the house was vacant was a breach of the condition that any omission to make known every fact material to the risk should render it void. Magnin v. Dinsmore, 62 N. Y. 35, 40; Crouch v. R. R. Co., 14 C. B. 255; Burritt v. Ins. Co., 5 Hill, 188; People v. Ins. Co., 2 T. & C. 268; Appleby v. Ins. Co., 54 N. Y. 253.

Thomas B. Hewitt, for respondent.

PER CURIAM. The defendant claims that the description of the house insured as a dwelling was a warranty that it was occupied as such. Unless there was evidence to show misrepresentation or

* See Alexander v. Germania Fire Ins. Co. (66 N. Y. 464), 23 Am. Rep. 76, and note 79.

Quinn v. People.

concealment as to the fact of occupation, there is no ground for such a position. The defendant had ample opportunity to ascertain how the fact was, and having failed to improve it by making inquiries through its agent, or to make provision in the policy for such a case, it cannot now claim that the insurance was for a building which was occupied contrary to the plain meaning and import of the language employed.

The claim that the neglect of the insured to make known the fact that the building was vacant and unoccupied was a breach of the condition is also unfounded. The provision in the policy that any omission to make known any fact material to the risk should render it void, in the absence of proof of fraud, is not violated because the insured fails to disclose facts in regard to which no inquiry is made. The applicant has a right to suppose that the insurer, in making inquiries as to particular facts, considers all others to be immaterial, or that he assumes to know or waives information in regard to them. Gates v. Madison Co. Mut. Ins. Co., 5 N. Y. 475. If the insurer fails to inquire as to occupation, unless there is proof of concealment, it is not evidence of bad faith which will vitiate the policy. Under such a state of facts, when no statement is made in the policy as to the occupation of the building, it must be assumed that the insurance was made without regard to occupation.

An indictment charged the breaking and entering in the night-time of a "dwelling-house of A and B, being copartners in business under the firm name and style of A & B." It was shown on the trial that A and B were partners, and in their business used and occupied as stores the lower stories of two adjacent buildings, opening into each other. A, with other persons, lived in the upper rooms, and was there at the time of the burglary, but