
    The People of the State of New York, Appellant, v. George N. Ostrander, Respondent.
    Third Department,
    May 3, 1911.
    Pleading — amendment — defense of unconstitutionality — estoppel as against State.
    A'party acting in good faith should be allowed to amend his pleading so as to enable him to raise and have determined all questions affecting his rights. ■
    While the unconstitutionally of a statute may be raised by objection, motion or exception, and need not necessarily be alleged in the answer, it is proper to allow an amendment so as to plead unconstitutionality.
    Even though it be uncertain as to whether 'a defendant sued by the State can claim an estoppel as against the State, he should be allowed to allege the estoppel in his- answer by way of. amendment.
    The State cannot be estopped by unauthorized acts of its agents, but it seems it may be estopped by deed and by legislative acts relied upon by individuals.
    Appeal by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the ¿lerk of the county of Essex on the 8th day of December, 1910, granting leave to the defendant to serve an amended answer.
    
      
      Edward R. O’Malley, Attorney-General, and John O. Bates, for the appellant.
    
      Edward M. Angell, for the respondent.
   Houghton, J.:

The action is to recover damages for cutting timber upon lands claimed to belong to the State. The court permitted the defendant, upon terms, to serve an amended answer setting up the Statute of Limitations, that the plaintiff was estopped from claiming title to the lands in question because it had enacted statutes with reference to the land in controversy recognizing the title of defendant and his grantors, and that the law under which treble damages were sought to be recovered was unconstitutional.

The plaintiff insists that the defense of estoppel is not operative against the State and that it is unnecessary to plead the unconstitutionality . of a law, and, therefore, the answer as amended was ineffectual, and hence the amendment was improperly allowed. Reasonable terms were imposed and it was provided that the defendant should accept short notice of trial as a condition of allowing the amendment.

The plaintiff was neither harmed nor impeded by the order. It is the policy of the court to permit a party where the amendment is proposed in good faith to put his pleadings in such shape as will enable him to raise and have determined at the trial all questions affecting his rights. (Muller v. City of Philadelphia, 113 App. Div. 92; Washington Life Ins. Co. v. Scott, 119 id. 847.)

. While it may not be a necessity to plead the unconstitutionality of a statute under which an action is sought to be maintained, it is entirely proper to set up such claimed unconstitutionality by way of plea. ■ Unless the unconstitutionality of a statute be raised on the trial in some manner a party is deemed to have waived his right to claim it unconstitutional. (Dodge v. Cornelius, 168 N. Y. 242.) While such unconstitutionality may be raised by objection or motion or exception it is not improper to raise it by plea. (Massachusetts National Bank v. Shinn, 163 N. Y. 360; People ex rel. Bush v. Houghton, 182 id. 301.) In lves v. South Buffalo Railway Co. (201 N. Y. 271) the only plea of the -answer was the unconstitutionally of chapter 674 of the Laws of 1910, known as the Workmen’s Compensation Act.

Of course, the State cannot he estopped by rmauthorized acts of its agents (Wells v. Johnston, 171 N. Y. 324), but it can' be estopped by deed. (People v. Hagadorn, 104 N. Y. 516; Commonwealth v. Heirs of Andre, 3 Pick. 224.) While it is unsettled whether the government can be estopped by the authorized acts of its officers and agents, it has been held in . some jurisdictions that the doctrine of equitable éstoppel does apply to the government ..(United States v. Stinson, 125 Fed. Rep. 907; State of Indiana v. Milk, 11 Fed. Rep. 389; Chope v. Detroit & Howell P. R. Co., 37 Mich. 195), and . that it may be estopped by legislative acts relied upon by individuals in changing their relations respecting the subject-matter. (United States v. Williamette Valley & C. M. Wagon Co., 54 Fed. Rep. 807). Although the decision was. not placed upon that ground the principles of estoppelwere virtually invoked against the State- because of the- act of its Comptroller in Wallace v. McEchron (176 N. Y. 424); and in City of New York v. Halsey (132 App. Div. 192) it was expressly held that the municipality was estopped from collecting a personal tax because its qommissioner of taxes had told the defendant there " Was no assessment against him and refused to permit him to inspect the roll when he appeared before -the board for the purpose of swearing off the assessment.

■ It not being clear that the defendant' is not entitled to plead estoppel as against the State, such plea should not be- treated as- a nullity and the defendant should have the privilege of invoking it -if. he desires.

It follows that the Order should- be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  