In re the Election of Trustees of New York Express Co.

New York Supreme Court

In re the Election of Trustees of New York Express Co.

30 N.Y. Sup. Ct. 615

DecidedJanuary 15, 1881

StatusPublished

This text of 30 N.Y. Sup. Ct. 615 (In re the Election of Trustees of New York Express Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Election of Trustees of New York Express Co., 30 N.Y. Sup. Ct. 615 (N.Y. Super. Ct. 1881).

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Opinion

Beady, J.:

The New York Express Company is a corporation formed under the act passed in February, 1848, and the acts amendatory thereof and supplemental thereto. An election for trustees of this company was held on the 15th of March, 1880, and the appellants, Messrs. James Wilton Brooks, Samuel- Marsh and Erastus Brooks, claimed that they had been duly elected and should have been so declared instead of three others; and they presented an application to this court under the provisions of the Revised Statutes (see 1 R. S., 603, § 5), which provides for a summary application, and imposes the duty of establishing the election complained of, or ordering a new election, and of making such order and giving such relief in the premises as right and justice may require. While the proceedings, which were sent to a referee to take proof, were pending, the legislature passed an act (chap. 254, Laws 1880) which exempted corporations organized under the Laws of 1848 from the provisions of the statute referred to, and it was declared that the act should take effect immediately.

The question presented, therefore, is whether the statute mentioned has a retroactive effect, or is to be construed as simply affecting proceedings thereafter commenced. The act of 1880 related to a statutory proceeding summary in its character, and did not destroy any right, on the part of the appellants, to institute a proceeding for the purpose of determining whether or not they were legally elected trustees. It affected only their right to employ [617]*617the summary proceedings wbicb bave been already mentioned. It only related to tbe form of the proceeding. It did not deprive the appellants of their other remedy.

The right to a particular remedy is not a vested one. (Butler v. Palmer, 1 Hill, 330; see People v. Roper, 35 N. Y., 638 ; Cooleys’ Constitutional Limitations, 361, et seq.) The class of cases which the appellant’s counsel has cited are illustrative of the proposition that the legislature cannot destroy a vested right of action, a proposition which it would be unseemly to deny. But the principle does not apply where the act complained of merely alters or modifies the remedy. In this case, for example, when the act of the legislature was passed, relating as it did to a statutory jurisdiction, and taking effect immediately, there was no power left in the court to make the order which the statute contemplates, because there were no saving clauses in the exempting act. But this did not prevent the appellants from resorting to another remedy. The legislature provided a summary mode of relief and repealed the law by which it was granted. There was no power remaining in the court to do anything under the original statute in this proceeding, therefore, because as to this proceeding the original statute was absolutely destroyed.

For these reasons it is thought that the order appealed from must be affirmed.

Barrett, J., concurred. Present — Brady and Barrett, JJ.

Order affirmed.

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Beady, J.:

The New York Express Company is a corporation formed under the act passed in February, 1848, and the acts amendatory thereof and supplemental thereto. An election for trustees of this company was held on the 15th of March, 1880, and the appellants, Messrs. James Wilton Brooks, Samuel- Marsh and Erastus Brooks, claimed that they had been duly elected and should have been so declared instead of three others; and they presented an application to this court under the provisions of the Revised Statutes (see 1 R. S., 603, § 5), which provides for a summary application, and imposes the duty of establishing the election complained of, or ordering a new election, and of making such order and giving such relief in the premises as right and justice may require. While the proceedings, which were sent to a referee to take proof, were pending, the legislature passed an act (chap. 254, Laws 1880) which exempted corporations organized under the Laws of 1848 from the provisions of the statute referred to, and it was declared that the act should take effect immediately.

The question presented, therefore, is whether the statute mentioned has a retroactive effect, or is to be construed as simply affecting proceedings thereafter commenced. The act of 1880 related to a statutory proceeding summary in its character, and did not destroy any right, on the part of the appellants, to institute a proceeding for the purpose of determining whether or not they were legally elected trustees. It affected only their right to employ [617]*617the summary proceedings wbicb bave been already mentioned. It only related to tbe form of the proceeding. It did not deprive the appellants of their other remedy.

The right to a particular remedy is not a vested one. (Butler v. Palmer, 1 Hill, 330; see People v. Roper, 35 N. Y., 638 ; Cooleys’ Constitutional Limitations, 361, et seq.) The class of cases which the appellant’s counsel has cited are illustrative of the proposition that the legislature cannot destroy a vested right of action, a proposition which it would be unseemly to deny. But the principle does not apply where the act complained of merely alters or modifies the remedy. In this case, for example, when the act of the legislature was passed, relating as it did to a statutory jurisdiction, and taking effect immediately, there was no power left in the court to make the order which the statute contemplates, because there were no saving clauses in the exempting act. But this did not prevent the appellants from resorting to another remedy. The legislature provided a summary mode of relief and repealed the law by which it was granted. There was no power remaining in the court to do anything under the original statute in this proceeding, therefore, because as to this proceeding the original statute was absolutely destroyed.

For these reasons it is thought that the order appealed from must be affirmed.

Barrett, J., concurred. Present — Brady and Barrett, JJ.

Order affirmed.

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30 N.Y. Sup. Ct. 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-election-of-trustees-of-new-york-express-co-nysupct-1881.

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