Van Derzee v. City of Long Beach

Appellate Division of the Supreme Court of New York

Van Derzee v. City of Long Beach

265 A.D. 1059, 39 N.Y.S.2d 401, 1943 N.Y. App. Div. LEXIS 6905

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 1943

StatusPublished

Cited by5 cases

This text of 265 A.D. 1059 (Van Derzee v. City of Long Beach) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Van Derzee v. City of Long Beach, 265 A.D. 1059, 39 N.Y.S.2d 401, 1943 N.Y. App. Div. LEXIS 6905 (N.Y. Ct. App. 1943).

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Opinion

In our opinion the language of article VIII, section 2, of the New York State Constitution, is to be construed to apply to interest which became due after the effective date of the constitutional provision, irrespective of whether the indebtedness was incurred prior or subsequent to the date it became effective. Moreover, the constitutional provision neither establishes nor affects any substantive right but deals only with a remedy afforded to the creditors of the city on its bonded indebtedness and, therefore, is to be construed as operating retroactively. (City of New York v. Appleby, 219 N. Y. 76; Holmes v. Camp, 219 N. Y. 359; Jacobus v. Colgate, 217 N. Y. 235; [1060]*1060Laird v. Carton, 196 N. Y. 169.) Since it creates no new obligation or duty, as distinguished from a 'mere remedy, it does not impair the obligation of a contract within the purview of the provisions of the Federal and State Constitutions. (Preston Co. v. Funkhouser, 261 N. Y. 140, affd. 290 U. S. 163.) In view of the mandatory provisions of the section in question, hardship is no defense to the payment of interest by the city on its indebtedness to petitioner. The mandate of the Constitution must be obeyed. (Judd v. Board of Education, 278 N. Y. 200; State, ex rel. Dos Amigos, Inc., v. Lehman, 100 Fla. 1313.) Carswell, Johnston, Adel, Taylor and Lewis, JJ., concur. Settle order on notice. [178 Misc. 29.]

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In our opinion the language of article VIII, section 2, of the New York State Constitution, is to be construed to apply to interest which became due after the effective date of the constitutional provision, irrespective of whether the indebtedness was incurred prior or subsequent to the date it became effective. Moreover, the constitutional provision neither establishes nor affects any substantive right but deals only with a remedy afforded to the creditors of the city on its bonded indebtedness and, therefore, is to be construed as operating retroactively. (City of New York v. Appleby, 219 N. Y. 76; Holmes v. Camp, 219 N. Y. 359; Jacobus v. Colgate, 217 N. Y. 235; [1060]*1060Laird v. Carton, 196 N. Y. 169.) Since it creates no new obligation or duty, as distinguished from a 'mere remedy, it does not impair the obligation of a contract within the purview of the provisions of the Federal and State Constitutions. (Preston Co. v. Funkhouser, 261 N. Y. 140, affd. 290 U. S. 163.) In view of the mandatory provisions of the section in question, hardship is no defense to the payment of interest by the city on its indebtedness to petitioner. The mandate of the Constitution must be obeyed. (Judd v. Board of Education, 278 N. Y. 200; State, ex rel. Dos Amigos, Inc., v. Lehman, 100 Fla. 1313.) Carswell, Johnston, Adel, Taylor and Lewis, JJ., concur. Settle order on notice. [178 Misc. 29.]

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265 A.D. 1059, 39 N.Y.S.2d 401, 1943 N.Y. App. Div. LEXIS 6905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-derzee-v-city-of-long-beach-nyappdiv-1943.

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