
    Thomas Darlington, plaintiff and appellant, vs., The Mayor, &c. of the City of New York, defendants and respondents.
    The objection that a statute was not constitutionally passed by ayes and noes, | during the presence of the required number of members, must be set up by ■ answer; otherwise it is unavailable.
    (Before Barbour, Monell and Garvin, JJ.)
    Heard March 17, 1864;
    
    decided April 30, 1864.
    Appeal from a judgment dismissing the complaint. The plaintiff alleged in his complaint that, on the day and time hereafter mentioned, the plaintiff resided and was doing business in the city of Hew York, and the defendants were, and still are, a municipal corporation, charged by law with the preservation of the peace and order of the city of Hew York, and the protection of the property of its inhabitants. That on the 13th day of July, 1863, at the city of Hew York, and within the city and county of Hew York, the plaintiff was the owner, and was" possessed of, the ends and leaves of a covered mahogany extension table, then in the building known as number 1182 Broadway, in the said city of Hew York, and that, on or about the 13th day of July, 1863, in the said city and county of Hew York, a large assembly of persons, to this plaintiff unknown, constituting a mob, did unlawfully, riotously and tumultuously assemble together, to the disturbance of the public peace, and being so assembled, did then and there unlawfully, violently, and with force and violence of a mob, set fire to said building, containing the aforesaid property of this piaintiff, and by the acts of the said mob in so doing, the property of the said plaintiff, amounting in the whole to the value of fifteen dollars,, was totally destroyed. That the said loss and injury to the property of the plaintiff was caused by a mob or riot which arose in the said city and county of Hew York, on or about the 13th day of July, 1863, and continued throughout the said city for several days and nights thereafter.
    The plaintiff further alleged, that on the 28th day of July, 1863, and more than twenty days before the commencement of this action, the above mentioned claim of the plaintiff, upon which this action is founded, was duly presented in writing to the comptroller of the city of New York for adjustment and payment, and also that after the expiration of the said twenty days from the time of such first presentation of the said claim, and before the commencement of this action, a second demand in writing for the adjustment and payment was made, in behalf of the plaintiff,, upon the said comptroller, and that upon" such demand being made, the comptroller has neglected and refused, and still neglects and refuses, to make an adjustment or payment of the same.
    And the plaintiff averred that by reason of the matters and things hereinabove set forth, he had sustainedjóss and damage to the amount of fifteen dollars. He therefore demanded judg-° ment for the said damages in the sum of fifteen dollars, with interest thereon from the 14th day of July, 1863, besides the costs of this action.
    The answer was a denial of each and every allegation in the complaint contained, except the allegation of presentment of claim to the comptroller.
    The action came on for trial on the 1st day of February, 1864, before Hon. Jambs Moncrief, one of the justices of this court, and a jury. The defendants, upon the trial, admitted all the allegations in the complaint, excepting the ownership and value of the property.
    The plaintiff proved the destruction of the property, and its value, and rested.
    The defendants’ counsel thereupon moved for a dismissal of the complaint on the following grounds :
    
      First. That the act of the legislature, passed April 13,1855, entitled, “ An act to provide for compensating parties whose property may be destroyed in consequence of mob,s qr riots,” to be found in the session laws of 1855, does nqt appear to have been passed when a constitutional quorum of three fifths of the members elected to each house were present.
    
      
      Second. That the said act is unconstitutional and void for the reason that it violates that portion of section 6th of article 1st of the amended constitution of 1846, which declares that no person shall be deprived of his property without due process of law. '
    The judge granted the motion, and dismissed the complaint with costs, to which decision the plaintiff’s counsel duly excepted; And judgment of dismissal having been entered, the plaintiff appealed, uuw
    
      Thomas Darlington, appellant, in person.
    
      John K. Hackett, for the respondents.
   By the Court,

Monell, J.

The judgment in this case must be reversed under the authority of Davidson v. The Mayor, decided at this term, unless the objection, that it does not appear that the question on the final passage of the act was taken by ayes and noes, and entered on the journal, and that three fifths of all the members elected to either house, were present, was well taken.

In the view which I take of the question, it is not necessary to inquire whether the act of 1855 required the presence of three-fifths of the members elected to the legislature, at the time of its final passage. I assume that it did. The act of 1855 is a public act, and may be read in evidence from the volume printed under the direction of the secretary of state. (Laws, 1843, ch. 88.) It is not necessary to plead a public statute.

The objection that the act was not constitutionally passed, is not set up in the answer, and it seems to me it can be taken in no other way. The act of 1843 makes the printed volume evidence, and all a party, who claims a benefit under it need do, is to read it from the book, and the court is furnished with the evidence. If in its passage, the law has not received a constitutional vote, or for any other reason it has not been passed, with the prescribed forms, the objection must be proved, and if necessary to be proved, must be averred in the pleadings.

But I regard the question as settled by People v. Supervisors of Chenango, (8 N. 7. Rep. 317.) The supervisors were directed by mandamus to issue warrants for the collection of the tax provided by the 17th section of the act of April 16, 1851. Without setting up in their return to the mandamus any informality in the passage of the act, they undertook to claim on the argument that it did not appear that the act had received the assent of two thirds of the members elected to each branch of the legislature, as required by'§ 9 of article 1 of the constitution. Mr. Justice Willard, who delivered the opinion of the court, says, (p. 234 :) “ Where the objection to the validity of. a law springs out of the failure of the legislature to comply with the provisions of the constitution, which is not apparent upon the act itself, it should be distinctly set forth in the pleadings.” The act of 1847, which is relied on by the respondents, (Laws 1847, p. 276,) is declared in the case just referred to, to be directory merely, It is there said that it is not competent for the legislature to make the failure of its officers to append the proper certificate defeat the provisions of the constitution.” And in Purdy v. The People, (4 Hill, 384,) it is said the courts must look behind the printed statute book in some way, to ascertain whether this constitutional provision has been complied with, and that the certificate of the secretary of state cannot be considered as conclusive upon the question that the law was passed by a constitutional majority. Under our present system of pleading, every defense must be stated, or evidence cannot be given in support of it. To allow the objection to be taken in the case before us would work great injustice. Being a surprise to the plaintiff, he could not at the trial furnish proof to sustain the law. For it is now understood that upon an inspection of the journals of the senate and assembly, it appears that all the requirements of the constitution were complied with.

We think the defense should have been set up in the answer, and is unavailable without it.

The judgment should he reversed, and a new trial granted, with costs to abide the event.

Garvin, J. concurred.

Hew trial granted. 
      
       Ante, p. 230.
     
      
      
         On appeal the above judgment was affirmed by the Court of Appeals. (See 31 N. T. Rep. 164)
     