
    The People ex rel. Abram J. Miller, Resp’ts, v. Hillyer Ryder, County Treas’r of Putnam Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Pabtition— Constitutional law—Laws 1889, chaps. 89, 40.
    Chapter 89 and 40, Laws 1889, amending §§ 1582, 841, of the Code relative to the distribution of unclaimed moneys arising from partition sales and to presumption of death, operate upon the remedy by which civil lights are to be enforced and not upon vested rights, and are not unconstitutional.
    Appeal from order granting a peremptory mandamus.
    
    
      Glayton Ryder, for app’lt; Abram J. Miller, resp’t, in person.
   Dykmah, J.

This is an appeal from an order directing the issuance of a peremptory writ of mandamus to the defendant requiring him to pay over to certain persons money brought into court over twenty-five years since for unknown .owners, in an action for the partition of land.

The facts upon which the proceeding is based are substantially as follows: Louis B. Griffin died intestate, seized and possessed of of a farm of land in Putnam county, and an action was commenced in the supreme court for the partition of the land, which resulted in a judgment for the sale of the premises, and the share of the descendants of Deborah Ann McCormick, a deceased sister of Louis B. Griffin, who died twenty years before him, being one-fifth of the net proceeds of the sale, was brought into court and "deposited with the county treasurer of Putnam county, December 19, 1863, where it has since remained, accumulating interest.

• The relator and other parties, in interest presented to the supreme court at special term, dn the 8th day of February, 1890, a petition setting forth the above facts, and alleged that more than twenty-five years had elapsed since the payment of the money into court, that no claim had been made therefor by any person entitled thereto, and that due inquiry for the unknown heirs of Deborah Ann McCormick had been made, and upon such petition anchthe subsequent proceeding thereon, the court on .the 19th day of July, 1890, made a decree in the action of partition declaring that the unclaimed portion of the proceeds of the sale, with all accumulations of interest, was vested at the time of such payment in the then known heirs of Deborah Ann McCormick, deceased, and directing the county treasurer of Putnam county to pay over said sum, now amounting to about $18,000, to the known heirs, and the persons claiming under or through them as set forth in such decree.

The defendant refused to make such payment on the ground that the decree was without other authority of law than that conferred by §§ 1582 and 841 of the Code of Civil Procedure, as amended by chapters 39 and 40 of the Laws of 1889, and that such chapters were unconstitutional and void.

On the 16th day of August, 1890, an order was made at the special term on notice to the defendant that a peremptory writ of mandamus issue out of the court, directed to the defendant, requiring him to make such payment, and from that order the defendant has appealed to the general term.

Chapter 39 of the Laws of 1889 is entitled an act to amend § 1582 of the Code of Civil Procedure relative to the distribution of unclaimed moneys arising from the proceeds of sales of real property in actions of partition in certain cases. It is as follows:

“ Where a person has been made a defendant as an unknown person, or where the name of a defendant is unknown, or where the summons has been served upon a defendant without the state, or by publication, and he has not appeared in the action, the court must direct his portion to be invested in permanent securities at interest for his benefit until claimed by him or his legal representatives, but after the lapse of twenty-five years from the time of the payment into court, or to the county treasurer of any county, of any portion of the proceeds of the sale of real property for unknown heirs, in any action of partition without any claim therefor having been made by a person entitled thereto, and upon there being made and presented to the court at a special term thereof proof by petition or otherwise, showing to the satisfaction of the court that due inquiry for such unknown heirs has been made, and that no claim has been made for such portion of said proceeds by any person entitled thereto, the said court shall have power to decree that such unclaimed portion of such proceeds was vested at the time of such payment in the known heirs of the common ancestor of such unknown heirs, and their heirs and assigns, and shall make an order in such action directing the payment to them or their assigns of the respective shares or portions of, or interests in such proceeds, which they are entitled to, and upon, serving on the county treasurer a certified copy of such order, the treasurer shall so pay over and distribute the same after deducting his lawful commissions, and shall thereupon be exempt from all liability on account thereof.”

Chapter 40 of the Laws of 1889 is entitled “An act to amend § 841 of the Code of Civil Procedure relative to the presumption of the death of unknown heirs in actions of partition in certain cases,” and is ás follows: “A person upon whose life an estate in real property depends, who remains without the United States, or absents himself in the state or elsewhere for seven years together, is presumed to be dead, in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time.

“And where in any action of partition in this state any portion of the proceeds of the sale of real property is or has been' paid into court or paid to the treasurer of any county for any unknown heirs, and is unclaimed for twenty-five years, the lapse of twenty-five years after such payment raises the presumption of the death of such unknown heirs, and they are and shall be presumed to be dead in any action or proceeding for the purpose of distributing and paying over such proceeds.”

So far as these statutes have application to the present proceeding their provisions are substantially similar, and they are to be construed together. It is the claim of the defendant, however, that they are violative of the constitutional prohibition which inhibits the deprivation of persons of their property without due process of law. In our view, however, they simply establish a new rule of evidence which the legislature often does, and which is fully within the legislative authority. The competence of the legislature to make new rules of evidence or change the common law rules existing unrestricted by the provisions in the constitution which interdict the appropriation of private property without due process of law, has been frequently considered by the courts, and is now firmly established. People v. Turner, 117 N. Y., 233 ; 27 N. Y. State Rep., 158; Hand v. Ballou, 12 N. Y., 541.

So the legislature may enact laws affecting civil rights and allow them retroactive operation, while laws rélating to crimes and their punishment may not be made to retroact; the interdiction of the constitution of the United States and of this state applies only to criminal law. Dash v. Van Kleeck, 7 Johns., 477; People v. Turner, supra ; Mongeon v. People, 55 N. Y., 613; People ex rel. Collins v. Spicer, 99 id., 233.

Returning again to the statutes in question, we think they must be understood as affecting the remedy by which civil rights are to be enforced and not as destroying vested interests. All rules and regulations respecting legal remedies are subject to modification and control of the legislature, and the rules of evidence are no exception. Howard v. Moot, 64 N. Y., 268.

If these laws made the lapse of time conclusive evidence of the death of the unknown heirs, and precluded them from establishing the truth of their existence, they could not be upheld as a legitimate exertion of legislative power, because then they might destroy vested rights, and work a confiscation of property.

Legislation similar to this is by no means infrequent in this state. The Code of practice wrought very radical changes in the proceedings in civil actions in this state, and its provisions were applied to existing causes of action, where suits had not been commenced before their enactment. But they have not been held to impair or trench upon the obligations of contracts, or to destroy vested rights.

Familiar instances of the constitution of presumptive evidence by certain facts are the recitations in tax leases from which the regularity of certain proceedings' are presumed. • The possession of various weapons- concealed upon the person is made presumptive evidence of carrying them with intent to use the same in violation of the statute. Penal Code, § 411.

Possession of a dredge in the waters of Long Island sound is made presumptive evidence of intent to use the same in violation of the provisions of the statute prohibiting such use. Chapter 234 of the Laws of 1870, .§ 4.

Our conclusion, therefore, is, that these statutes operate upon a remedy and not upon a vested right. They shift the burden of proof in a proceeding to obtain the fund in the hands of the county treasurer, and thus operate upon the method of procedure. They render proof of death unnecessary in the first instance, after a court is satisfied that due inquiry for such unknown heirs has been made, and that no claim has been made for such fund by any person entitled thereto. Such is our construction of these statutes, but they are new and have not passed the scrutiny of the court of appeals.

It is difficult to draw a dividing line between statutes which affect remedies only, and those which pass beyond the limits of legislation and impair vested rights or antecedent contracts.

We, therefore, find the county treasurer justified in obtaining the opinion of the courts before he yields up the possession of the large fund in question.

The order should be affirmed, but under the circumstances without costs.

Pbatt, J., concurs.  