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the court to designate a day certain for the trial of a preferred cause, and to try the cause on that day. The party against whom such a preferred cause is moved may be deprived of an opportunity to prepare for trial, and may be compelled to go on trial without proper preparation, or else suffer a default. He may, by the enforcement of the rule, be deprived of life, liberty, or property without due process of law. "The process of the law includes every step, from summons to judgment; and if a party is deprived of any right usually accorded to others, it is not due process of law." Riglander v. Star Co. (1904) 98 App. Div. 101, 90 N. Y. Supp. 772. See also Martin's Bank v. Amazonas Co. (1904) 98 App. Div. 146, 90 N. Y. Supp. 734.

Proceeding without process.-A proceeding in rem without personal service or voluntary appearance, in which property is not seized or attached, nor within the jurisdiction of the court. Ward v. Boyce (1897) 152 N. Y. 191, 36 L. R. A. 549, 46 N. E. 180.

Real estate sales in certain cities.-Section 640d of the Penal Code, added in 1901, chap. 128, making criminal in cities of the first and second classes an offer of real property for sale without the written authority of the owner or his agent, or of a person who has made a written contract for the purchase of such property. It is an unwarrantable interference with the liberty of the citizen. Grossman v. Cominez (1903) 79 App. Div. 15, 79 N. Y. Supp. 900; Cody v. Dempsey (1903) 86 App. Div. 335, 83 N. Y. Supp. 899.

Receivers.-Taking a person's property from him by an unauthorized proceeding, and placing it in the hands of a receiver, and then subjecting him to the expenses of the proceeding. He is entitled to the restoration of his property, and cannot be charged with the expenses of the receivership. Weston v. Watts (1887) 45 Hun, 219.

Redemption on execution sale.-Section 1440 of the Code of Civil Procedure as amended in 1881, chap. 681, relating to the sale, redemption, and conveyance of real property sold on execution. "The obvious intention of the act is to take away from the owner all remedy for the recovery of his property, except upon the payment by him to his adversary of a sum of money which must frequently be greater than the value of the property itself.” It takes property without due process of law. Gilman v. Tucker (1891) 128 N. Y. 190, 13 L. R. A. 304, 26 Am. St. Rep. 464, 28 N. E. 1040.

Sheriff's costs on attachment.-Under $ 709 of the Code of Civil Procedure the sheriff, after an attachment has been vacated, cannot, as against the real owner, retain possession of the property until his costs and expenses are paid. This part of the section is unconsti

tutional. The sheriff's claim is against the plaintiff in the attachment, and to permit the sheriff to hold the property as against the true owner would be "to take the property of one party against his or its consent and apply it to the payment or discharge of the obligations of another." Bowe v. United States Reflector Co. (1885) 36 Hun, 407.

Summary proceedings against certain trespassers.—The act of 1896, chap. 313, authorizing a summary and exclusive proceeding for the seizure, forfeiture, and sale of any boat or vessel used by any person in interfering with oysters or other shellfish belonging to another. Neither the act condemned nor the property is a nuisance. The legislature cannot, when no public right or interest is involved, “arbitrarily declare property a public nuisance for the purpose of devoting it to destruction,” nor can the legislature forfeit to the state property of one person "upon the sole ground that he had, in some manner, interfered with the private rights of another.” The legislature cannot arbitrarily “provide that any procedure it may choose to declare such shall be regarded as due process of law.” Colon v. Lisk (1897) 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302.

Tenement houses.—The act of 1884, chap. 272, "to improve the public health by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses in certain cases." The constitutional provision may be violated "without the physical taking of property for public or private use.

Its capability for enjoyment and adaptability to some use are essential characteristics and attributes, without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, deprives the owner of his property." Re Jacobs (1885) 98 N. Y. 98, 50 Am. Rep. 636.

Transfer tax.–The act of 1889, chap. 76, amending the tax law in relation to taxable transfers, providing for a tax upon remainders and reversions which had vested prior to June 30, 1885, upon their coming into actual possession or enjoyment. Re Pell (1902) 171 N. Y. 48, 57 L. R. A. 540, 89 Am. St. Rep. 791, 63 N. E. 789.

Vaccination. An order of the Brooklyn health commissioner for the compulsory isolation of a person who refused to be vaccinated. Such isolation can be ordered only when persons are infected with or exposed to contagious or infectious diseases.

Such exposure must be an actual fact, and not a mere possibility. Re Smith (1895) 146 N. Y. 68, 28 L. R. A. 820, 48 Am. St. Rep. 769, 40 N. E. 497.

Villages. Under the village water act of 1875, chap. 181, author

izing the assessment of water rents, the owner of the property is entitled to notice of such assessment and an opportunity to be heard. Dasey v. Skinner (1890) 33 N. Y. S. R. 15, 11 N. Y. Supp. 821.

Vinegar.—The provision in § 50 of the agricultural law which "allows farmers to manufacture, and farmers and purchasers from them to deal in, cider vinegar which does not contain an acidity equivalent to the presence of at least 41 per centum by weight of absolute acetic acid, while it prohibits all other persons from manufacturing and dealing in cider vinegar that has not that amount of acidity. This is clearly a discrimination in favor of the farmer," and is not due process of law. People v. Windhols (1904) 92 App. Div. 569, 86 N. Y. Supp. 1015.

Warehousemen.—'The provision in the act of 1895, chap. 633, which prohibits an action against a warehouseman concerning property deposited with him, unless he claims some right, title, or interest in it other than a lien. Milligan v. Brooklyn Warehouse & Storage Co. (1901) 34 Misc. 55, 68 N. Y. Supp. 744, Gaynor, J.

The warehouse act of 1895, chap. 633. Follett Wool Co. v. Albany Terminal Warehouse Co. (1901) 61 App. Div. 296, 70 N. Y. Supp. 474

Witness.—The provision in $ 6189 of the Code of Criminal Procedure (added in 1902, chap. 94) which authorized the issue of a subpæna by a court of record in this state to compel a person to attend a court of record in another state, as a witness therein. I: deprives such person of his liberty without due process of law. Re Pennsylvania (1904) 45 Misc. 46, 90 N. Y. Supp. 808. See also Re Grout (1905) 105 App. Div. 98, 93 N. Y. Supp. 711, which denies to a judge power ex parte to commit a defaulting witness under $ 856 of the Code of Civil Procedure.

PRIVATE PROPERTY CANNOT BE TAKEN FOR PUBLIC USE

WITHOUT COMPENSATION.

In general.—“The term 'property' is of the largest import, and embraces every mode in which it may be applied to the public use, and extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments.” Caro v. Metropolitan Elev. R. Co. (1880) 14 Jones & S. 138, where it was held that polluting the air of a dwelling house with noisome, though not unwholesome, smells, which interferes with the enjoyment of life and property by rendering such enjoyment uncomfortable, is a taking of property.

“Private property may be constitutionally taken for public use in two modes; that is to say, by taxation and by right of eminent

domain. These are rights which the people collectively retain over the property of individuals, to resume such portions of it as may be necessary for public use. The right of taxation and the right of eminent domain rest substantially on the same foundation. Compensation is made when private property is taken in either way. Money is property. Taxation takes it for public use, and the taxpayer receives, or is supposed to receive, his just compensation in the protection which government affords to his life, liberty, and property, and in the increase of the value of his possessions by the use to which the government applies the money raised by the tax. When private property is taken by right of eminent domain, special compensation is made.” Judge Ruggles, in People ex rel. Griffin v. Brooklyn (1851) 4 N. Y. 419, 55 Am. Dec. 266.

"Individuals are protected in the enjoyment of their property, except so far as it may be taken in two ways; viz., as a public tax, upon principles of just equality, or for public use, with a just compensation, ascertained according to the provisions of the Constitution.” People ex rel. Post v. Brooklyn (1849) 6 Barb. 209.

The constitutional provision does not apply where property is not taken, and where the only claim relates to incidental or consequential injuries of indefinite amount, not capable of estimate. Such injuries may be the subject of an independent action for damages. Drake v. Hudson River R. Co. (1849) 7 Barb. 508, but it was held in Radcliff v. Brooklyn (1850) 4 N. Y. 195, 53 Am. Dec. 357, that an action would not lie to recover damages resulting from excavations made by a municipal corporation within the boundaries of a street, in consequence of which a portion of the adjoining land fell into the street, no negligence being imputed to the municipal authorities. “An act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow."

The constitutional prohibition against taking private property without compensation does not apply to a preliminary survey which a railroad company is authorized to make under its charter, if the statute requires the company to make compensation for property actually taken. “Unless the legislature possess power to authorize an entry for this purpose, the clause of the Constitution which, by implication, permits private property to be taken for public use upon making just compensation, would be nugatory." The Constitution does not prohibit the legislature from permitting an entry to be made upon the property of an individual for the purpose of a

VOL. IV. Const. Hist.-&

preliminary examination. Polly v. Saratoga & W. R. Co. (1850) 9 Barb. 449.

No private property is taken in the constitutional sense by a judgment recovered against a city or county under the riot act of 1855, chap. 428. The judgment is to be paid from money raised by taxation. Davidson v. New York (1864) 27 How. Pr. 342.

A statute which requires an owner of property to pay a portion of the expense of a water meter does not take property without compensation, within the meaning of the Constitution. It is a police regulation. Hill v. Thompson (1882) 16 Jones & S. 481.

“The Federal government, as an independent sovereignty, has the power of condemning land within the states for its own use," but it "may lay aside its sovereignty, and, as a petitioner, enter the state courts and there accomplish the same end through proceedings authorized by the state legislature.” The state may thus delegate its powers to an "independent political corporation where the use is public and the convenience is shared by its own citizens." Re United States (1884) 96 N. Y. 227, construing chap. 147, Laws 1876, relating to Spuyten Duyvil creek.

The legislature has no power to authorize experiments as to new methods of railroad construction and operation which involve the taking or impairment of private property, without providing compensation to the owner. It was accordingly held that the act of 1885, chap. 554, which provided for the construction of an “illustrative section" of an elevated railroad in New York, was invalid, for the reason, among other things, that it made no provision for compensation to abutting owners or owners of the fee of the street. People ex rel. Harvey v. Loew (1886) 102 N. Y. 471, 7 N. E. 297.

"A municipal corporation, in the exercise of its discretionary or judicial power of determining when, where, and how to make improvements, such as streets, sidewalks, sewers, etc., has the right to do so upon a plan which substantially involves the appropriation by it of the property of a citizen to the public use." Seifert v. Brooklyn (1886) 101 N. Y. 136, 54 Am. Rep. 664, 4 N. E. 321.

Bicycle path.-A bicycle path may be established and maintained within the bounds of the highway under the authority of the act of 1899, chap. 152, as amended by Laws 1900, chap. 640, without compensation to an abutting owner; his right of access is not impaired by such bicycle path. Ryan v. Preston (1901) 59 App. Div. 97, 69 N. Y. Supp. 100.

Canals.-"When the public agents have entered upon and taken possession of the property in the manner contemplated by the stat

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