
    GASKIN against ANDERSON.
    
      Supreme Court, First District; Special Term,
    October, 1869.
    Foreclosure. — Judicial Sale.—Sheriffs’ Fees Act of 1869.—Constitutional Law.
    
    Section 1 of the act of 1869, entitled “ An Act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases,”—which directs all sales of real estate in that city, except in partition or where the sheriff is a party, to be made by the sheriff (2 Laws of 1869, 1377, ch. 569),—is unconstitutional, because, although the act is local, the subject of the section is not expressed in the title.
    A purchaser at a judicial sale, under a judgment which was within the jurisdiction of the court, cannot refuse to complete his purchase on the ground that the directions of the judgment, and the sale pursuant thereto, were irregular and unauthorized by law, in respect to the selection of the officer who made the sale.
    
      Motion to compel completion of purchase;
    This action was brought to foreclose a mortgage upon real property in the city of New York.
    Judgment of foreclosure, directing a sale of the premises, was recovered subsequent to the enactment of chapter 569, of the Laws of 1869. This act is entitled, “An act in relation to the fees of the sheriff, of the city and county of New York, and to the fees of referees in sales in partition cases.” The first section is as follows :
    “All sales of real estate hereafter made in the city and county of New York, under the decree or judgment of any court of record (except sales in cases of partition, and where the sheriff of said city and county is a party), shall be made by the sheriff of said city and county.”
    Section 2 regulates the rates of the sheriff’s fees in sales on foreclosure, and certain disbursements.
    Section 3 requires certain commitments by police justices to be directed to the sheriff.
    Section 4 prescribes the fees and commissions on sales in partition by referees.
    By the judgment entered in this action, Mr. Coleman was appointed a referee for the purpose of making the sale, instead of directing a sale by the sheriff.
    After sale the purchaser refused to take the title, assigning as an objection that the sale was not made by the sheriff, as required by law.
    
      The plaintiff now moved for an order compelling the purchaser to take the title, of which motion notice was given to the sheriff’s counsel.
    
      John Henry Hull, for the motion.
    
      William Henry Arnoux, and George F. Demarest, and Brown, Hall & Vanderptoel, opposed.
    
      
       a.s the question raised by this case frequently arises in reference to the application of local statutes, some reference to what has been thus far settled may be useful.
      The constitutional provision invoked in this case was first introduced in the constitution of 1846. It is as follows: “No private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title ” (Const, of 1846, art. 3, § 16).
      
        The object of this provision was considered in the earliest leading case upon its application (1851, Conner v. Mayor, &c. of New York, 5 N. Y., 285; affirming S. C., 2 Sandf, 355). In that case the court of appeals expounded the provision in view of the design intended to be secured by the first clause of it,—namely, to prevent the uniting various objects having np necessary or natural copnection with each other, in one bill, for the purpose of combining various pecuniary interests in support of the whole,, which could not be combined in favor of either by itself.
      
        The statute drawn in question in that case was one giving certain officers salaries in lieu of fees, and giving fees such as they had previously received to the treasury of the city. And it was held that this subject, both as respected their remuneration, and the transfer of the right to fees to the city treasury, were sufficiently expressed in the title of the act, which specified as its subject the fees of certain officers in the city and county of New York.
      In the case of Sun Mutual Ins. Co. v. Mayor, &c. (8 N. Y., 241), the object of the second clause was stated to be that neither the members of the legislature nor the public should be misled by the title.
      Upon these principles, an act authorizing a city corporation to raise by assessment a certain sum, for the payment of a contractor for making a local improvement, is sufficiently en tided as an act for the relief of a con~ .tractor, naming him (Brewster v. City of Syracuse, 19 N. Y., 116).
      So, an act authorizing a city corporation to levy a tax upon the city, •and directing a portion of the tax for specifie'd purposes to be assessed up•on a specified part of the city, is sufficiently entitled by designating it as • an act. to enable the supervisors of the city and county of New York to raise money by tax (Sun Mutual Ins. Co. v. Mayor, &c. of New York, 8 N. Y., 241).
      In the one case, it will be observed, the title indicates the object, but -not the power by which the object was to be attained; in the other case .it indicates the power to be exercised, but not the object for which it was given.
      In a statute the title of which only indicates that its object is to raise -money for a municipal corporation, and provide for its expenditure and for unsettled claims, provisions relating only to the term of a municipal office ¡are void because not indicated (People v. O’Brien, 38 N. Y., 193).
      The subject of an act which changes the number of directors which a ¡municipal corporation are authorized by their charter to elect in the board •of a railroad company, is not sufficiently indicated by a title stating that the purpose of the act is to amend a specified chapter of the laws of a designated year, such chapter being in fact the charter of the ciry, and containing a great number of sections, so that the reference presents no clue to .the subject-matter of the amendment (People v. Hills, 35 N. Y., 449).
      The cases in the other courts on what is a sufficient designation of the •subject of an act, are as follows :
      In the Matter of Wakker (3 Barb., 162) it was held that an act entitled :as relating to justices’ and police courts in the city of New York, was valid in respect to the provisions relative to the marine court, for that might be deemed a justice’s court.
      
        In Phillips v. Mayor, &c. of New York (1 Hilt., 483) it was held that the new charter of the city of New York, of 1857, entitled" An Act to amend the charter of the city of New York” (1 Laws of 1857, 874), was valid in respect to the provisions contained in it forbidding aldermen from acting as judges, and prohibiting and punishing bribery of city officers. The authority of this case, however, is qualified somewhat by the effect of the case of People v. Hills (35 N. Y., 449) stated above.
      In De Camp v. Eveland (19 Barb., 81) the act of 1854, ch. 386, entitled as an act to erect a new county from parts of other counties, designating them, and to alter the town lines of designated towns, was held not obnoxious to the objection that it embraced more than one subject, considering that all the matters of the bill were subordinate and auxiliary to the erection of the new county.
      In the case of Town of Fishkill v. Fishkill & Beekman Plank Road Co. (22 Barb., 634) the opinion was expressed that in an act entitled as for the relief of a plank road company from the obligation to construct a part of their road, provisions in addition to such release, relating to the construction and management of other parts of the road, were prohibited by the constitution, and void.
      In the case of White v. Syracuse & Utica R. R. Co. (22 Barb. 559) it was held that an act entitled to authorize the railroad corporations of this State to subscribe to the capital stock of a foreign corporation named was not to be considered as embracing several subjects by reason of the fact that all the railroad companies of the State would be subject to its provisions.
      In the case of People v. Lawrence (36 Barb., 177) it was held that under an act entitled in relation to the collection, payment and application of certain assessments, in a city named, provisions making compensation by means of such assessments to a railroad company, for discontinuing the use of steam in the city, were valid, and that in an act entitled as for the purpose of closing a tunnel and restoring the street, and terminating the use of steam power by a railroad company, provisions authorizing the railroad company or their assigns to maintain a horse railroad in place of their former road, and providing for assessments to compensate them for the change, were valid, these provisions being incidental, and in the nature of means to accomplish the object expressed by the title.
      In the cases of Sharp v. Mayor, &c. of New York (31 Barb., 572; S. C., 9 Abb. Pr., 243 ; 18 How. Pr., 97, 213), and Outwater v. Mayor, &c. of New York (18 How. Pr., 572; approved and followed in Joyce v. Mayor, &c. of New York, 20 Id., 439; S. C., 12 Abb. Pr., 309), it was held that the act of 1859 (Laws of 1859, 1127), entitled “an act to enable the supervisors of the city and county of New York to raise money by tax," was not unconstitutional, although it contained provisions also allowing the comptrol.er of the city to reverse fraudulent judgments against the city. Such provisions were deemed proper, as incidental to the main purpose of the act.
      But in Smith v. Mayor, &c. of New York (34 How. Pr., 508), it was held that in Ihe act of May 4, 1866, ch. 876, entitled “ an act to enable the supervisors of the county of New York to raise money by tax for the use of the corporation of the city, and in relation to the expenditure thereof," the provision in section 10, that the mayor, &c., shall not be liable upon any contract made by any board or officer not authorized by that act, was unconstitutional, as embracing a subject not indicated in the title.
      In the Matter of Tappen (36 How. Pr., 390), it was held that in the act of 1861, ch. 308, entitled as relating to contracts by the mayor, &c., of New York, provisions constituting certain officers a board of revision for the correction of assessments were not unconstitutional, the object being the confirmation of assessments for the compensation of contractors.
      As to what is a local act within this provision, the earliest leading case, to which we have already referred, gave some sanction to the opinion that an act regulating the amount and manner of paying officers, of any county, for their official services, when such services are rendered in, and form a part of the administration and execution of the laws of the State, and affect equally all of the citizens thereof, who come within their range, is neither private nor local, in the view contemplated by the constitution. (Conner v. Mayor, &c., of New York, 5 N. Y., 285; affirming 2 Sandf., 355 S. P., Phillips v. Mayor, &c., of New York, 1 Hilt., 483; People v. Stevens, 2 Abb. Pr. N. S., 350; and Williams v. People, 24 N. Y., 405).
      But it is now settled, that an act relating only to a single county is a local act within this provision. (People v. Hills, 35 N. Y., 449; People v. O’Brien, 38 N. Y., 193). And the same is affirmed of acts affecting any particular locality less than the whole.
      While, on the other hand, it was held in the N. Y. superior court, in the case of Burnham v. Acton (4 Abb. Pr. N. S., 1), that the Metropolitan District .Acts, extending over a territorial district of more than one county, and containing provisions of a penal nature, applicable to all persons, were not local or private within the meaning of the Constitution.
      
        Whete a statute contains both general and local provisions the question is different. Here it seems to be settled that provisions of a general nature are not necessarily void because not indicated in the title, although contained in an act which in other respects is wholly local. This question arose under the act of 1855, entitled, 11 An Act to enlarge the jurisdiction of the courts of general and special sessions of the peace in and for the city and county of New York,” the whole of which is local except one section (section 3), which related to convictions in the courts of oyer and terminer throughout the State; and the court held that the validity of this provision was not affected by the fact that its subject was not indicated in the title; and laid down the rule that the local or general character of an act was to be determined by provisions which it contained and not by its title, and that a title of a local or private character does not impair the force of the general provisions which may be contained in the act without being indicated in the title (People v. McCann, 16 N. Y., 58).
      But it may be doubted whether the application of_ such a rule in all cases, would not often defeat the plain object of the provision.
    
   Cardozo, J.

This is a motion to compel the purchaser to take the title to premises bought by him on sale under a judgment of foreclosure. ' By the judgment entered on the direction of Mr. Justice Barnard, James W. Coleman, Esq., was appointed referee to sell, and the purchaser objects to the title upon the ground that under the act of May 4, 1869 (2 Laws of 1869, 1377, ch„ 569), such sale could only be made by the sheriff of the city and county of New York.

The plaintiff’s counsel replies that the statute relied upon is in that respect unconstitutional. As the sheriff might be interested in the question, his counsel was permitted to appear upon this motion and represent him, but he failed to assign any' reason in support of the constitutionality of this provision of the statute. Indeed, after very careful consideration, I think it will be hard to defend the constitutionality of that act in many particulars, and among others on the point in question. The statute is plainly a local bill, and therefore, according tb section 16 of the article 3 of the Constitution, it can embrace but one subject, and that must be expressed in its title. That this act does refer to more than one subject, and is within the provision of the constitution, is clear (see Pullman v. Mayor, &c., decided in General Term, 1st Dist., April, 1868, and cases there cited).

In the first place, the title of that act embraces two subjects entirely independent of and distinct from each other, viz: “Fees of the sheriff of the city and county of New York,” and “fees of referees in partition cases.”

In the next'place the act itself legislates upon those two different and distinct subjects by sections two and four. "

But it is only necessary to consider at present the first section of the act, because it is only under that section that there can be any pretense that the title is objectionable. That section relates to a subject in no wise expressed in the title of the act. It relates, not to fees, but to the manner in which judgments shall be executed. In other words, it attempts to regulate and chaiige the practice of the court, and to take away the right to execute its decrees according to its own judgment, which has prevailed ever since the court of chancery had its existence. Such a radical change of the practice of the court cannot be made under pretense of regulating the fees of the sheriff, and under a bill, the title of. which affords no notice that any such purpose was designed, but which simply relates to the “fees of the sheriff.” Under such a title the fees of the sheriff might be increased or diminished, but that is all that its title would suggest. These are some of the reasons which make it perfectly plain that section 1 of the act in question is unconstitutional.

It is not necessary to say whether section 2, which may well apply to such sales as the court may see fit to send to the sheriff, may not stand, nor indeed to express any opinion as to the rest of the act, so far as the sheriff is concerned.

But, apart from ail this, and without further pursuing the question of the constitutionality of the act in respect to the point before me, there are other reasons which make it clear that the motion should be granted. No consequence is declared by the statute to result from a sale being made by a person other than the sheriff.

It is not to be denied that the court making the judgment which was entered in this action had jurisdiction to make it. That being so, the question whether any of its provisions were right, which of course includes the one directing the premises to be sold by a referee, cannot be raised by a purchaser. The parties might appeal, or might move the court to correct or vary the judgment; "but if they do not complain, but acquiesce in the provisions of the decree, the purchaser will get a good title, and he cannot be heard to raise any objection, except that which goes to the jurisdiction of the court (Alvord v. Beach, 5 Abb. Pr., 451; Holden v. Sackett, 12 Id., 473).

In any respect in which the matter can be viewed, the objection to the title raised by the purchaser is unfounded, and the motion should therefore be granted ; but as this is the first time that the statute has been judicially construed, I think there should be no costs of the motion.

Motion granted'. 
      
       We are informed that on appeal the order was affirmed by the court at general term, in November, no opinion being rendered.
     