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has either made no appropriation for the payment of such value for plaintiff's land as may be agreed upon or ascertained by the court of claims, or such appropriation, if any, does not exceed $1,000,000.

The proposition is that for the state of New York to take for any public purpose private property without appropriating, sequestering, or otherwise allotting a particular, definite, and sufficient fund, for the payment of what the plaintiff owner asserts his property to be worth, is at one and the same time denying due process of law and just compensation for the property taken.

There is also advanced another proposition depending, not upon the wording of the statute, but upon the alleged reason for its passage. The avowed purpose of taking plaintiff's land is public defense, i. e., the emplacement of guns and the possible construction of fortifications; but it is alleged and admitted that the state does not intend to procure or place guns itself or itself construct a fort—that is to be done by the nation; but the state takes the land in order to convey the same (some time) to the United States for the purposes just stated.

It is urged that the state of New York cannot exercise its sovereign right of eminent domain for the benefit of another sovereign, i. e., the United States of America.

Considering the last suggestion first, it is not doubted that the state can condemn land for the purposes of its own defense, nor that the United States can do the same thing for the purpose of defending the whole country, including New York. It would seem, therefore, upon reason that New York can also condemn for the purpose of assisting in the defense of the United States, because thereby it is defending itself. As matter of law there is no difference, in substance, between what was approved of in Matter of United States, 96 N. Y. 227, and the legal result of what is here sought to be accomplished by or through the legislation complained of.

As to the argument that absence of an appropriation, or of an appropriation sufficient in plaintiff's opinion, renders action by the state unconstitutional until such sufficient appropriation is made, it may first be noted that it requires, as a prerequisite for the exercise of the undoubted sovereignty of New York, that security be given for the damage about to be inflicted upon private citizens—a security measured not by what the Legislature deems enough, nor (logically) by what some court thinks enough, but by the owner's estimate of the largest price which he may hereafter be able to prove. This necessarily follows from the tenor of the bill, which presupposes an appropriation of $1,000,000, and the argument would be just the same if there be assumed an existing appropriation which in any substantial amount falls short of $2,000,000 and expenses.

Let it be assumed that due process of law requires that somehow, at some time, compensation be made for property taken for public uses. Monongahela, etc., Co. v. United States, 148 U. S. at 324, 13

1 The bill alleges that an act appropriating $1,000,000 was at the date of verification of bill about to pass; at the tinie of argument it was admitted by counsel that no such statute had become law.

Sup. Ct. 622, 37 L. Ed. 463. It must be assumed that within limits, and very wide limits, the state may determine whether property is wanted for public use. "The necessity or expediency of the appropriation is not a matter for judicial inquiry.” Spring Valley Water Works v. Schottler, 110 U. S. at 378, 4 Sup. Ct. 64, 28 L. Ed. 173.

Likewise it is obvious that whether the appropriation here be deemed for the benefit of the state or of the United States, it is not a prerequisite to the exercise of eminent domain (even in matters much less vital than public defense) that compensation be made before possession or even title be taken. Great Falls, etc., Co. v. Garland (C. C.) 25 Fed. 521; Sage v. Brooklyn, 89 N. Y. at 195.

So far as New York is concerned, the most extreme statement of the rule was made (obiter) in Litchfield v. Pond, 186 N. Y. at 74, 78 N. E. 722:

“While payment need not precede the taking, the provision for compensation must not only preexist, but it must be so definite and certain as to leare nothing open to litigation except the title to the propery taken and the amount of damages which the owner may recover."

So far as it may be said that the state Constitution must be read in consonance with, and subordination to, the Fourteenth Amendment of the national Constitution, the matter was actually presented in Adirondack Ry. v. New York, 176 U. S. at 349, 20 Sup. Ct. 465, 44 L. Ed. 492, where it was held that, where the state itself took property for its own exclusive and designated purposes

“Compensation must indeed made, and inquiry as to its amount in some appropriate way, before some properly constituted tribunal, must be proLad for.

It is the rule in New York that where this is done, and a certain, definite, and adequate source of payment is provided, compensation need not actually be made in advance of a taking by the state or one of its municipal subdivisions.

This act (the Adirondack Park bill] fulfills these requirements, in that the state treasury is the source of payment, and an appropriate mode is designated for the ascertainment of compensation as to owners."

The application at bar then must rest upon the single proposition that the New York rule can only be satisfied by an appropriation before action sufficient in the property owner's opinion.

This puts the state sovereign at a disadvantage as compared ever with its municipal subdivisions, for the rule has been held satisfied by the liability of the county of Kings (Matter of Church, 92 N. Y. 1), of the city of Brooklyn (Sage v. Brooklyn, supra), and see Rider v. Stryker, 63 N. Y. 137.

As was said by Andrews, C. J. (in the Sage Case, supra):

“The pledge of the faith and credit of the state, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and cred the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law."

There is just this difference between the faith and credit of a political subdivision of the state and the state itself—the former can be sued as matter of right; the latter cannot without its own permission. Therefore the plaintiff's argument comes to this: That although an

appropriation of this very land for purposes of a park by the city of New York would be sufficient if the faith of the city were pledged for payment (that faith being enforceable by legal proceedings), the faith and credit of the state of New York is not enough, even when the state waives its sovereign privilege and invites action in the court of claims. It seems as if the statement of this doctrine contained its own refutation.

Happily for the country, the proven and notorious circumstances under which this appropriation is sought have been so infrequent that the attention of courts has rarely been called to them; yet the matter has not remained wholly without recognition and comment.

There is an acute and obvious difference between the demands of a sovereign for such civil purposes as may be found in the cases already cited, or the allotment of a fraction of its sovereignty to a railway corporation or city for purposes of business, convenience, or comfort, and the exercise of the highest duty of sovereignty—the preservation of its own existence.

In Bloodgood v. Mohawk, etc., Co., 18 Wend. (N. Y.) at 17, 31 Am. Dec. 313, Chancellor Walworth held that the “agents of the state and others” could not enter upon or occupy"the private property of an individual, except in cases of actual necessity, which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation.”

But the learned chancellor also said that "the public purse" (18 Wend. p. 18, 31 Am. Dec. 313) might justly be considered "an adequate fund." The difference between a taking by the sovereign for itself and the exercise of delegated authority by some subordinate political entity or private corporation is well considered in Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403 (see, also, Walther v. Warner, 25 Mo. 277, and Covington Short-Route Transfer Ry. Co. v. Piel, 87 Ky. 267, 8 S. W. 449); while the supreme exigencies of war and the legal necessity of yielding thereto are amply commented upon by Clifford, J., in United States v. Russell, 13 Wall. at 627, 20 L. Ed. 474. It was there said that the "taking of private property by the government, when the emergency of the public service in time of war or impending public danger is too urgent to admit of delay, is everywhere regarded as justified ;

and it is equally clear that the taking of such property under such circumstances creates an obligation on the part of the government to reimburse the owner to the full value of the service."

The legislation complained of by this plaintiff was passed under an "emergency message” from the Governor of New York, and as a measure of defense at a time concerning the dangers of which comment would be superfluous.

It is therefore my opinion that this application should be denied for three reasons:

(1) The plaintiff's demand for relief is based upon untrustworthy, if not incredible, assertions of value regarding its property. Such statements do not invite the exercise of discretionary power.

(2) Even if the declared and proven purpose of the state in acquiring plaintiff's property was not public defense in time of pressing danger, the statute complained of does pledge the credit of the state and the public purse to make full reparation to plaintiff. This is enough, even under New York decisions made without any thought of public danger. And

(3) The state has acted in this instance under a power only called into play under the exigency of threatened war. Such power may be exercised without a contemporaneous appropriation, even if it be admitted (as it is not) that the sovereign need ever go so far when taking property for its own sovereign use.

For these reasons I cannot agree with the majority.

In re LALLY.

(District Court, N. D. New York. February 5, 1919.) 1. BANKRUPTCY Ow415(3)— REVIEW OF ACTION OF REFEREE-FINDINGS OF


The findings of fact of a special master or of a referee on application for discharge stand in substantially the same position before the court as does the verdict of a jury, and are not to be disturbed, unless unsup

ported by the evidence or against the weight thereof. 2. BANKRUPTCY Ow414(1)-OBJECTIONS TO DISCHARGE–BURDEN OF PROOF.

A bankrupt, who has conformed to the requirements of the statute, is prima facie entitled to a discharge, and the burden of proof rests on an objecting creditor to establish by satisfactory evidence some one of the

designated acts which will defeat his right thereto. 3. BANKRUPTCY Ow414(3)—OBJECTIONS TO DISCHARGE-PROOF.

Proceedings on an application for discharge are civil, and where criminal acts are alleged to defeat the discharge, they must be proved by clear, convincing, and satisfactory evidence, although not beyond a reasonable doubt.

In Bankruptcy. In the matter of William P. Lally, bankrupt. On motion to confirm report of special master recommending discharge. Confirmed.

W. H. Weller, of Utica, N. Y., for bankrupt.
Sholes & Norton, of Utica, N. Y., for creditors.

RAY, District Judge. It is claimed by the objecting creditors, not only that the bankrupt has concealed assets from his trustee in bankruptcy, but that he made a false oath in verifying his schedules. These claims are based on the alleged ownership by the bankrupt, William P. Lally, of the products of the farm which he occupies, owned by a Miss Peck, or of an interest therein, and of certain other personal property thereon. The facts seem to be these:

The bankrupt is married and has two small children, but before marriage, if not now, was what is termed in the brief of Messrs. Sholes & Norton, and is uncontradicted, a "ne'er-do-well,” who met with considerable success in that line of business, and all that he succeeded

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

in accumulating consisted, and still consists, of a few judgments and claims against himself owned by others, including his father, which are unpaid, and which he seeks "to get rid of” in bankruptcy proceedings, finding them cumbersome and undesirable. As the father is a man of some considerable means, it is not at all incredible that he desires to see his son in an unshackled condition; that is, freed from all connection with these judgments and claims. It is not claimed that prior to the time this son went upon the Peck farm, which he now occupies, he had accumulated any of this world's goods, except some household furniture and two old harnesses.

His father, Thomas Lally, is a retired farmer, and owns a farm in Sangersfield, N. Y., on which one of his sons resides. This other son, the bankrupt, had removed to a farm in Norwich, Chenango county, N. Y., which he rented or worked on shares, and where, it seems, he was meeting with the same success he had achieved before marriage, when he ran a threshing machine, filled silos, and engaged in "tending bar” in saloons or hotels. He had boarded with his father, but omitted to pay his board. The father had also guaranteed payment for a pair of horses purchased by this son on credit, and which guaranty he had to make good, reimbursing himself by selling the horses.

Prior to the beginning of the farm-working season of 1916, Mr. Lally, the father, made a written lease with Miss Peck, who owned a farm in the vicinity of Waterville, N. Y., for such farm, which was a "hop and dairy farm," and this contains no provision or suggestion that William P. Lally, the bankrupt, was to have any interest in the farm or its products, or of the property thereon. It was understood, however, between the father and Miss Peck that the now bankrupt was to go on and at least occupy the farm, if not work it. The father, as a witness before the special master, says he told Miss Peck:

"William is the one who is going to take charge of the farm, and he is going to supervise the work. I will be there only occasionally, and I would suggest that you turn over one-half the milk checks to him to pay the running expenses of the farm, paying the hired help and living expenses, expenses required to carry on the farm.”

In 1916 there were two or three hired men on the farm. The son, William P. Lally, did go on the farin with his family, and it was worked and the pay for the milk delivered at the milk station and for other crops and products sold, except the hops, went first to Miss Peck, who, deducting her share, paid over the other half or share to William P. Lally, the now bankrupt, and not to the father, the lessee of the farm, except the hop money; that is, the proceeds of the hops raised on the farm. It is evident from the evidence that the son, William P. Lally, did have “the living” of himself and family from the proceeds of the farm, and there is no evidence of any contract or agreement between the father and son as to any specific sum or rate of wages that was to be paid, or that the interest of the father in the lease was ever assigned to the son. It is claimed that, from all the circumstances and what was done, the court is authorized to find and should find, notwithstanding the report of the special master adverse to the contention, that the lease in the name of the father, Thomas Lally, was

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