Gambar halaman

Ins. Co. v. Wilson (1866) 34 N. Y. 275. In the second class, the rendition of the judgment is sufficient to establish his liability. Conner v. Reeves (1886) 103 N. Y. 527. From the case last cited, it would seem that in the second class of cases a judgment by default is not conclusive. In a recent case, however, City of N. 7. v. Baird (1902) 74 App. Div. 238, it was held that the person indemnified might settle a suit against the protest of the indemnitor. But see the discussion thereon in 2 COLUMBIA Law REVIEW, 498. TAXATION—TRANSFER Tax-CONTINGENT INTERESTS. $ 230 of the New York Tax Law, Laws of 1896, c. 908, as amended by Laws of 1899, c. 76, provided that where property was transferred in trust, and the rights, interests, or estates of the transferees were dependent on contingencies, a tax should be imposed on such transfer immediately. Held, the tax was still one on succession and might be collected at the death of the testator. Matter of Vanderbilt (1902) 172 N. Y. 69.

The intention of the legislature was not disputed, but serious objections were raised to the practicability and constitutionality of such an enactment. It was said that there was no true transfer of a beneficial interest at the time of the testator's death when the enjoyment is postponed until the happening of some contingency. But it is settled in New York that even contingent interests in property cannot be destroyed or impaired by legislative enactment. Brevoort v. Grace (1873) 53' N. Y. 245. The analogy of manual delivery is therefore not applicable to the transfer of such interests, as they have an existence before they vest in possession; and it seems possible for the legislature to regard the passing of the estate away from the testator as a succession for the purposes of taxation There is the further difficulty, it is true, that the tax in such cases must be collected out of the property itself, and so comes near to being a tax on property and not on succession. The view taken of such a tax, however seems to be that its imposition is in the nature of a condition precedent to the acquisition of the property by heir or legatee. GRAY, J., in Matter of the Estate of Swift (1893) 137 N. Y. 77; United States v. Perkins (1895) 163 U. S. 625. The effect of the tax is not to appropriate property already held by any beneficiary, but merely to intercept a part on its way to him. It is true, as pointed out in the still more recent case of Matter of Brez (1902) 172 N. Y. that the practical effect is often unduly to diminish the value of the life tenant's estate; but the court also held, in accordance with the principle just stated, that this was a matter of policy, and did not prevent the law from being constitutional. Taxation-ASSESSMENT NOT IN ACCORDANCE WITH STATUTE-INJUNCTION. Real estate in New York City was assessed at 60 per cent. while personal property was taxed at its full value. The New York statute, 1 Ř. S. 393 $ 17, provides that all real and personal estate shall be estimated and assessed at its full and true value. The plaintiff sought to enjoin the collection of taxes on bank shares, on account of the inequality. Held, the injunction would not be granted. Mercantile Nat. Bank v. Mayor, etc. of New York (1902) 172 N. Y. 35.

The decision harmonizes with the principle that courts look with disfavor on injunctions against tax collections unless the case is brought clearly within some head of general equity jurisdiction. Susquehanna Bank v. Supervisors (1862) 25 N. Y. 312. As the decision of a board of assessors is judicial, it will not be reviewed in equity when merely erroneous. Western R. Co. v. Nolan (1872) 48 N. Y. 513. Although a mandatory statute had been violated, the assessors had acted within the sphere of their powers. An injunction moreover would have the impractical effect of invalidating the whole assessment. Even where a species of property has been entirely omitted from taxation the assessment has been held valid. People v. McCreery (1868) 34 Cal. 432, 457. A result similar to the principal case was reached on a somewhat similar state of facts in Van Deventer v. Long Island City (1893) 139 N. Y. 133, although it was admitted that there was no remedy by the statutory certiorari.


The EMPLOYERS' LIABILITY ACTS, AND THE AssumPTION OF RISKS IN New York, MASSACHUSETTS, INDIANA, ALABAMA, COLORADO AND ENGLAND. By Frank F. Dresser. St. Paul: Keefe-Davidson Company. 1902, pp. xii, 881.

This is a badly-needed and well-executed work. It is up to date, containing the New York Employers' Act, which took effect the first day of last July. While not a model specimen of the bookmaker's art, the type is excellent and the general appearance of the volume is good.

The topic of this treatise, as Sir Frederick Pollock pointed out long ago, is far from clear in principle ; and it has been confused rather than simplified by modern legislation. Mr. Dresser states the rule, which had been evolved by the courts, as follows: "The common law implies a contract between a master and a servanı whereby the former undertakes, through himself or his agents, to use reasonable care to furnish and maintain suitable and safe places, machinery and appliances for the work to be done, to have competent servants and to warn the servant of all dangers of the work known to him and not known to the servant; and the latter undertakes to assume the risk of injury arising from the dangers of the work which he knows, or ought to know, and the risk of injury caused by the negligence of all other servants in the common employment.” The evolution of this rule was very rapid. Its existence was first suggested by the English Court of Exchequer in 1837. Four years later, the Supreme Court of South Carolina expressed its belief that such a rule should be adopted. In 1849, Chief Justice Shaw laid down the rule in substantially its present form. sition of the reasons upon which the doctrine is based, was full and masterly. A learned English judge has declared that the great judgment of the Massachusetts Chief Justice materially influenced the decision of the House of Lords when the question first came to its bar. It is undoubtedly to be regarded as the fountain-head of all subsequent decisions upon this topic.

For many years the wisdom of the rule was scarcely challenged. But, as Mr. Dresser points out, “the marvelous increase of the class of industrial servants, and the constantly growing percentage of accidents for which there may be no recovery have led to a wide-spread disbelief in the policy which dictated the common law rule.” In England, this skepticism has led to the passage of the Employers' Liability Act of 1880, and the Workmen's Compen-ation Acts of 1897 and 1900. By the first of these statutes the special defense, which a master had by the common law rule to an action brought by a servant for injuries sustained through the negligence of a fellow-servant, has been abolished in certain classes of cases. By the second statute, common law principles of liability are set aside in favor of certain classes of workmen,

His expo

pp. xi,

who are declared entitled to compensation for injuries received in the course of their employment, whether their employer is negligent or not, provided only the injury is not caused by their own wilful misconduct. The English Employers' Liability Act of 1880 has formed the model for legislation upon this topic in several of our States. Alabama was the first of our Commonwealths to follow in England's steps, while New York is the latest recruit to the ranks of protestants against the common law doctrine so ably championed if not discovered by Chief Justice Shaw.

Such being in brief the history of the development and modification of the Employers' Liability rule, it is natural that Mr. Dresser should first expound the general principles upon which the rule is supposed to rest; then analyze the statutes which have modified it, and lastly to present the judicial expositions of the statutes. All this he does with ability and in a very satisfactory way, In the Appendix is to be found the text of the various English and American Employers' Liability Acts, but not all of the State legislation bearing upon the subject of the book. Statutes which limit or remove the defense of fellow-service in the case of railroad employes are printed in notes to the text of Chapter Seven.

THE ELEMENTS OF THE LAW OF SALE OF PERSONAL PROPERTY. By Wm. L. Burdick. Chicago: F. H. Flood & Co. 1901. 214.

This work is scarcely more than a skeleton of Benjamin on Sales. Its arrangement of topics is substantially the same, and when a variation occurs, it appears to have been resorted to for the sole purpose of escaping the charge of abject servility in copying a great original. Much of the text is a mere digest of decisions. A good example is afforded by pages fifteen and sixteen, which contain ten sections with their separate headings, ten lines of text, and the citations of fortythree cases.

Most of the citations are from American reports, and the text does not disclose any careful study of the subject beyond Mr. Benjamin's book and its valuable American notes. Had the author investigated the law merchant, or even read with care Lord Blackburn's comments upon it, his section on stoppage in transitu would have been improved; and he would have escaped the error of asserting that the right of stoppage “is simply an extension of the vendor's lien.” He would have learned that the two rights are quite distinct.

MASON ON HIGHWAYS, containing the New York Highway Law, etc. By Herbert Delavan Mason. Albany: Banks & Company. 1902. pp. xxi, 322.

The only objection to this little volume is the misleading character of its principal title, and the length of its sub-title, which, though accurately defining the scope of the work, is too long to be set forth in extenso. The book is not a treatise on highways, nor even a full exposition of the highway law of New York, but of only so much of the latter as has been embodied in statuie form.

As an annotated edition of “ The Highway Law” of 1890, the book leaves little to be desired. It presents the text of the statute in its present, amended form, together with such provisions of the county

law, the town law, and the State Constitution as have to do with the laying out and regulation of highways. The annotations are full and well-arranged, and, so far as can be gathered from a cursory examination, no important cases have been omitted.

Not the least important and useful part of the compilation is the collection of forms suitable for proceeding under the law. There are 118 of these, and they cover every possible proceeding authorized by the law. Within its somewhat restricted field, therefore, the book bids fair to prove invaluable to those who have to do with the laying out and regulation of highways. It should be borne in mind, however, that the statutes here reprinted do not form a complete code of the highway laws of the State of New York, and that the work does not supersede such general treatises as those of Angell and Elliott.

THE LOUISIANA PURCHASE. By James Q. Howard. Chicago: Callaghan & Co.

1902. pp. 170. This little book possesses considerable interest both for those whose attention is being drawn to the Louisiana Purchase Exposition and for the student of history. The book makes no pretense of being an exhaustive treatise, only a portion of the work dealing with the actual purchase, yet it is apparent that the author has gone to the original sources, and he has drawn conclusions which are interesting and original. It is a little unfortunate that there is a tinge of partisan bias in his treatment of Jefferson. The third President is made to play a second or third-rate part in the purchase question. The credit due Livingston is strongly emphasized, as it should be, yet this need not detract from the part which Jefferson took in the transaction. It is true that Jefferson had no idea of acquiring the whole of Louisiana. He and probably every other statesman of the day would have considered themselves fortunate to secure New Orleans. Perhaps no one was more astonished than Livingston himself when informed by Talleyrand that the First Consul would dispose of the whole of Louisiana. Livingston was an experienced diplomat and quickly seized the bargain. Jefferson, though badly shaken up in his strict construction ideas by the audacity and immensity of the project, had the good sense to throw his theories to the winds and trust to the future for approval for his action. The author seemingly forgets that with- · out the approval and co-operation of the President the purchase could never have been consummated, no matter how wisely and shrewdly Livingston might have negotiated it. The author's suggestion that among the things that induced Napoleon to sell was the fact that he was overmatched by the cleverness of the elder diplomat, is certainly an interesting comment on a question that has long been a puzzle to historians.

The discussion of the purchase is prefaced by an interesting account of the early history of Louisiana. At the end of the book is a short summary of the history of the States formed from this accession, also a brief biography of the American statesmen whom the author ranks foremost as founders and preservers of the Union. Among these appear the names of Washington, Hamilton, Jackson, Lincoln and Grant, but one looks in vain for that of Jefferson. Such an omission seems difficult to explain in what is professedly the

[ocr errors]

history of an act which cannot be dissociated from Jefferson's name, even though the part he was allowed to play came to him largely through the force of circumstances. It is a wise statesman who knows his own opportunity.

THE GOVERNMENT OF New York. By William C. Morey. New York : The MacMillan Co. 1902. pp. xiii, 294.

The above publication appears among the Handbooks of American Government and is in line with the very praiseworthy attempts at the present time to make the study of politics more practical. There is a wide field for scholars to put the results of their research into a more practical and pleasing form. Such a book as this is eminently useful in the study of civil government. It ought to be followed by a complete set of similar works. In former treatises upon civics too little attention was given to the State and local units and their functions. It has come to be recognized that the local government comes home to the citizen much oftener and much more closely than the national. Hence the author believes that political education should begin with the primary units of our system. The State is taken up under the different aspects of its historical growth, its constitutional structure and its administrative functions. Part First treats the State as a Dutch colony, then under English rule, and finally as an American State. This portion of the work affords some valuable material for the study of colonial development. Part Second deals with the character of the State Constitution, suffrage and citizenship, central and local government of the State. These different topics are discussed in a way to make clear what part the people take in the government of the State. The last portion of the book deals with the functions of government, public education, administration of justice, supervision of charitable institutions, and a discussion of the question of control of economic functions. The concluding chapter deals with the management of public finances.

The appendix is made up of a chronological table, some excerpts from historical documents, a discussion of the political divisions of the State, a synoptical review of the State government and a statistical table showing population of counties and cities, and the Presidential · vote of New York. The whole book is a scholarly presentation of the subject.

Plain FACTS AS TO THE TRUSTS AND THE Tariff. By George Bolen. New York: The MacMillan Co. 1902. pp. viii, 451.

The above is a recent publication from The MacMillan Press which deserves favorable comment. It may be defined as an attempt by a layman to outline for laymen the principles which underlie the trusts and the tariff. It is an attempt to put some of the vital aspects of these questions before the plain-thinking man in a form in which he can readily grasp them. Such is the author's aim and in it he succeeds admirably. It is to be regretted that there are not more books written in this vein. It would be fortunate for America if a writer on economic problems should arise who would infuse the same life into “the dismal science” that John Fiske did into history. Economic questions deal with business relations and there is seem

« SebelumnyaLanjutkan »