Goodheart v. Latting

The action was brought to restrain the defendants, as loan commissioners, from mating sale of two parcels of land described in the complaint. They had loaned portions of what is called the Umted States deposit fund, on two separate mortgages on this property, situated in the city of New York. Default had been made in the payment of interest upon the loans secured by the mortgages, and the effect of that default was to vest the commissioners with the absolute title to the lands described in the mortgages, subject only to an outstanding right of redemption. 1 E. S. (6th ed.), 750, § 32.

To extinguish this right of redemption, the commissioners were required by the statute to cause an advertisement to be put in not less than three public places in the county where the premises were situated, containing a description of the lands mentioned in the mortgages, and to cause a copy of the advertisement to be published in at least one of the public newspapers printed in the county, if any there should be, and if there should be none, then in the nearest paper to the county, once in each week, successively, until the day of sale. This notice was required to be posted and published within eight days after the time prescribed for the yearly attendance of the commissioners, and they were required thereby to give notice that the sale would take place on the first Tuesday of February then next. A copy of the advertisement was also directed to be served upon the mortgagor, or his personal representatives, and upon such persons as should appear to be grantees,- lessees, or mortgagees, of the premises, and upon all persons having any lien or incumbrance thereon, by judgment or otherwise, subsequent to the commissioners’ mortgage, and a sale made pursuant to the notice would extinguish the owner’s right of redemption. 1 E. S., 750-1, §§ 33-34.

The commissioners proceeded to comply with these requirements of the statute for the posting, publication and service of notices, and published their notice in the paper published in the city of New York called the Daily Begister. The plaintiff, insisting that this publication was irregular and without authority, for the reason that the New York

The object which this act seems to have had in view was the publication of notices and advertisements in legal proceedings pending, ,or commenced, in the courts. The journal to be designated has been described as a daily law journal, and the calendars of the courts of record held in the city and county of -New York, have been required to be published in this paper, as well as notices and advertisements, already mentioned. It provided a means through which legal information should be conveyed, and the journal mentioned in the act was intended to include the publication of such inf ormation and notices as would be adapted to promote the business of the courts.

This was not a proceeding in any court, but it was under special provisions of a general statute of the state relating to the management, loan and collection of the United-States deposit fund- This fund, under an act of congress passed in 1836, whs placed in the custody of the government of the state of New York, subject to certain obligations mentioned jn the act. Practically, however, it was donated to the state, and it has been used and managed for the benefit of the schools, and educational institutions of the state, and no countyin the state had any right or interest in the moneys beyond those prescribed by chapter 2 of the Lawrs of 1837, and the amendments afterwards enacted. These statutes provided for the division of the interest moneys among the schools in the towns, cities and villages of the state, and ¡their management, loaning and collection were placed under the supervision of officers in each county, to be nominated by the governor and confirmed by the consent of the senate of the state.

The commissioners selected in this manner have not been subjected to the! control, or interference of any county authority, but they have held their offices and discharged their duties wholly in subordination to the provisions and directions of these statutes. And while they are known and designated ad commissioners of the several counties in which they are appointed, they derive no authority from

After the enactment of the first of these statutes, by sections 1 and 2 of article 10 of the constitution of the state, certain officers, not including these commissioners, have been -required to be elected for each county, by the electors thereof, and all county officers whose election, or appointment, has not been provided for by the constitution, have been required to be elected by the electors of the county, or • appointed by the board of supervisors, or other county authorities, as the legislature shall direct. And if these commissioners are officers of the county, then they should be elected by the electors of the county, or appointed by the board of supervisors, or other county authorities. But that has not been done or provided for in any manner, the legislature evidently considering these commissioners not to have been included in these constitutional provisions. While their functions and duties are to be exercised and performed in the county for which they may be appointed, those functions and duties include no part whatever of the county government, but are wholly directed to the supervision and management of property belonging to the state. This has, at all times, been regarded as the true scope of their powers,, duties and authority. And the uniform conduct of the government, in this respect, strongly fortifies the construction which it has already been suggested these constitutional provisions should receive. And the notices required to be given by the commissioners, under this construction of their duties and authority, are, by its own limitation, excluded from the effect of chapter 656 of the Laws of 1874.

The act of 1837 was intended to supply and provide a uniform system and mode of proceeding for the commissioners in every county in the state, while the act of 1874 related only, as its object has been declared in its title, to the publication of judicial proceedings and legal notices in New York city and county; and, being a special and a local act, under well settled principles of statutory construction, it should not be construed to be applicable to a proceeding under the act of 1837, which the law intended should be uniformly conducted according to its own provisions, by the commissioners, in each one of the counties of the state.

The commissioners’ notice of sale cannot therefore.be required to be published in the Daily Law Journal designated for the city of New York, but it may be legally and regularly published in any newspaper printed in the county, under the authority of section 33, of the Laws of 1837, as that has since been amended.

The commissioners’ notices were published in this manner.

Yak Brukt Oh. J., and Brady, J., concur.