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Oviatt v. Hopkins (1897) 20 App. Div. 168, 46 N. Y. Supp. 959, and Newcomb v. Newcomb (1900) 33 Misc. 191, 200, 68 N. Y. Supp. 430.
Vinegar act. The vinegar law of 1889, chap. 515. People v. Girard (1895) 145 N. Y. 105, 45 Am. St. Rep. 595, 39 N. E. 823.
White Plains.—The White Plains act of 1890, chap. 315, authorizing the trustees to change the grade of streets. An abutting owner has no vested interest in the grade of a street, and a change of such grade is not the taking of private property. Smith v. White Plains (1893) 67 Hun, 81, 22 N. Y. Supp. 450.
NOT DUE PROCESS.
Animals.-The act of 1862, chap. 459, to prevent animals running at large, so far as it assumes to give the owner of premises the right to seize and sell animals trespassing thereon. "The legislature transcends the limits of its authority when it enacts that one citizen may take, hold, and sell the property of another, without judicial process, and without notice to the owner, as a mere penalty for a supposed private injury.” Rockwell v. Nearing (1866) 35 N. Y. 302.
An ordinance of the city of Brooklyn providing that the owner of a dog that attacked a person elsewhere than on the owner's premises might be required immediately to kill such dog, but which ordinance did not require notice to the owner or an opportunity to be heard. The common council had no power to make an ordinance authorizing the destruction of property without notice. People ex rel. Shand v. Tighe (1894) 9 Misc. 607, 30 N. Y. Supp. 368, Sp. T. Gaynor, J.
Appeal.—“An appeal brought pursuant to a statute which authorizes an appeal after the time provided by law had expired, or authorizes a further appeal after the only appeal authorized by law had been brought and finally decided, although it might result in the reversal of the judgment, and be in form a judicial proceeding, would not be what is known as due process of law, which is not satisfied by a judgment based upon an unconstitutional statute. A judgment is a contract which is subject to interference by the courts so long as the right of appeal therefrom exists, but when the time within which an appeal may be brought has expired, it ripens into an unchangeable contract, and becomes property, which can be disposed of or affected only by the act of the owner or through the power of eminent domain. It is then beyond the reach of legislation affecting the remedy, because it has become an absolute right,
which cannot be impaired by statute.” Germania Sav. Bank v. Suspension Bridge (1899) 159 N. Y. 362, 54 N. E. 33.
Couse of action.—“A vested right of action is property in the same sense in which tangible things are property, and it is equally protected against arbitrary interference. Where it springs from contract, or from the principles of the common law, it is not competent for the legislature to take it away. Every man is entitled to a certain remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. . . . Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law." Cody v. Dempsey (1903) 86 App. Div. 335, 83 N. Y. Supp. 899, reaffirming as to $ 6400 of the Penal Code the views expressed by the same court in Grossman v. Caminez (1903) 79 App. Div. 15, 79 N. Y. Supp. 900, cited in the note on police power.
Commitment.-A final commitment under the act of 1892, chap. 467, to St. Saviour's Sanitarium of an alleged inebriate female without notice or hearing, and without her presence at any stage of the proceeding. The objection that the proceeding was without notice was not cured by the provision in the act that nothing therein contained should be construed to limit the right of the courts to review the detention by habeas corpus. She was entitled to notice at some stage of that proceeding before final judgment. People ex rel. Ordway v. St. Saviour's Sanitarium (1898) 34 App. Div. 363, 56 N. Y. Supp. 431.
Compulsory arbitration. After a claim against a city has been rejected by the courts as invalid, the legislature cannot direct its submission to and determination by arbitrators without the city's consent. Such an arbitration is not due process of law. Baldwin v. New York (1865) 45 Barb. 359; People ex rel. Baldwin v. Haws (1862) 37 Barb. 440.
Contempt.-A person cannot be punished by imprisonment for contempt without notice and an opportunity to be heard before a court clothed with authority to act and decide the questions involved. Before a party can be adjudged guilty of contempt for the nonpayment of alimony, a personal demand must be made upon him, and an order to show cause must also be served upon him personally; service upon his attorney is not sufficient. Goldie v. Goldie (1902) 77 App. Div. 12, 79 N. Y. Supp. 268.
An order striking out a defendant's answer in an action for
divorce because of his refusal to pay alimony and counsel fees. The right to defend an action is property, and is protected by the 14th Amendment. Sibley v. Sibley (1902) 76 App. Div. 132, 78 N. Y. Supp. 743.
Corporations.-A statute cannot be sustained which assumes to validate subscriptions to the capital stock of a railroad company because the cash payment required to make the subscription valid has not in fact been paid. The legislature cannot thus make a binding contract where none existed before; it would take property without due process of law. New York & O. Midland R. Co. v. Van Horn (1874) 57 N. Y. 473.
The act of 1886, chap. 271, directing that property and franchises of a dissolved street surface railroad corporation be sold at public auction to any other corporation possessing similar powers; and the act of 1886, chap. 310, directing that the affairs of any corporation dissolved by statute be wound up in an action for that purpose, to be brought by the attorney general, with a sale of its property by a receiver. The consents acquired by the dissolved corporation were property, and "the attempt to transfer them to a third party by the mere force of the statute, without the consent or knowledge of their lawful owners, was an effort to change their ownership without due process of law.” People v. O'Brien (1888) 11 N. Y. 1, 2 L. R. A. 255, 7 Am. St. Rep. 684, 18 N. E. 692.
A decree of the General Assembly of Knights of Labor of America, annulling the charter of a local assembly, and confiscating its property. “Bills confiscating the property of citizens or of associations, without judicial process, are forbidden by the Constitution; and no person, corporation, or association authorized to acquire and hold property, can be devested of it by the fiat of any organization, nor in any way without its consent, or by due process of law." Wicks v. Monihan (1891) 130 N. Y. 232, 14 L. R. A. 243, 29 N. E. 139, following Austin v. Searing (1859) 16 N. Y. 112, 69 Am. Dec. 665, where the same rule was applied in relation to the action of the Grand Lodge of Odd Fellows, in annulling the charter of a local lodge.
The act of 1897, chap. 281, amending $ 394 of the Code of Civil Procedure, which had the effect to reduce from six years to three years the time within which an action might be brought against a director of a moneyed corporation to enforce a common law liability. The legislature may shorten statutes of limitation, but it must allow a reasonable time for suits upon existing causes of action. A
right of action "is property, and if a statute of limitations, acting upon that right, deprives the claimant of a reasonable time within which suit may be brought, it violates the constitutional provision that no person shall be deprived of property without due process of law." Gilbert v. Ackerman (1899) 159 N. Y. 118, 45 L. R. A. 118, 53 N. E. 753.
The act of 1895, chap. 417, which requires every street surface and elevated railroad company in a city or village to transport without charge a policeman or fireman who has received a certificate of appointment from specified authorities. It was an invasion of property rights. Wilson v. United Traction Co. (1902) 72 App. Div. 233, 76 N. Y. Supp. 203.
Decedents' estates.—The act of 1870, chap. 394, which authorized the examination of a person alleged to have in his possession property belonging to a decedent's estate, and the issue of a warrant by the surrogate to seize such property and deliver it to the executor or administrator. Re Beebe (1880) 20 Hun, 462.
Drainage.—The drainage act of 1867, chap. 372. No opportunity was given to the owners of land to object to the assessment. A grievance day—“an opportunity to be heard in respect to the justice and correctness of a proposed assessment-is a necessary part of the due process of law for the levying of assessments on property in this state for any purpose.” People ex rel. Pulman v. Henion (1892) 64 Hun, 471, 19 N. Y. Supp. 488.
Evidence.-A commissioner appointed in this state to take the deposition of a witness in an action pending in another state derives no authority from, and does not exercise any judicial function under, the laws of this state; his power to act is derived entirely from the appointment of the court of another state. The commissioner, who was a notary public, is not connected with the judicial department of the government of this state. “He is not under the control of any of the officers or departments of the state government. He cannot be punished for an abuse of his power by this state.” A warrant issued by him committing a witness for refusing to answer alleged pertinent questions, but which does not in terms adjudge him guilty of contempt, is not due process of law, which means “law in its regular course of administration through courts of justice.” People ex rel. MacDonald v. Leubischer (1898) 34 App. Div. 577, 54 N. Y. Supp. 869.
Ercise.—The act of 1855, chap. 231, "to prevent intemperance, which devoted to destruction intoxicating liquors kept or used contrary to its provisions.” Such liquor was property, and could not
thus be summarily destroyed. Wynehamer v. People (1856) 13 N. Y. 378.
The supreme court in People v. Quant (1855) 12 How. Pr. 83, had sustained the act. Referring to this decision Judge Comstock said in the Wynehamer Case that it exhibited a “singular misapprehension” in regard to the principle enunciated by the court of appeals, and which was deemed settled by ample authority.
Fire limits. The common council of Buffalo, having granted permission for the erection of certain wooden buildings, a subsequent rescission of the resolution without the owner's consent was held invalid on the ground that the owner of the land, having entered into contracts for the erection of the buildings, and a portion of the materials therefor having been delivered, he had acquired property rights under the original resolution which could not be taken away. Buffalo v. Chadeayne (1889) 27 N. Y. S. R. 60, 7 N. Y. Supp. 501, affirmed in (1892) 134 N. Y. 163, 31 N. E. 443.
Foreclosure.-A foreclosure judgment which includes property not included in the complaint, and which was not embraced in the litigation. Clapp v. McCabe (1895) 84 Hun, 379, 32 N. Y. Supp. 425 (1898) 155 N. Y. 525, 50 N. E. 274.
Franchise.—The town of Jamaica granted a franchise to a gas company to lay conductors "for conducting gas in and through the public streets and highways of said town;" afterwards a portion of the town was incorporated as the village of Richmond Hill. The franchise was construed to include not only existing streets, but also streets which might thereafter be enlarged, changed, or opened, and it was not affected by the incorporation of the village. The village might impose reasonable regulations concerning the exercise of the franchise, but it could not arbitrarily refuse permission to the company to place its conductors under the streets. The franchise is property, and such action by the village would deprive the company of its property without due process of law. People ex rel. Woodhaven Gaslight Co. v. Deehon (1897) 153 N. Y. 528, 47 N. E. 787
A franchise granted to a street surface railroad company, especially when consummated by obtaining the consents of municipal authorities and property owners, is property of which the company cannot be deprived without compensation; hence, subsequent action by the city in laying out a park-way under legislative authority could not deprive the company of its right to construct its road on a street afterwards included in such park-way. Coney Island, Ft.