* * *

*

** * *

ferryboats. It collects in the city of New York money due for transportation to that point and for transportation from that city, and there makes contracts for transportation of freight and passengers over its lines, and issues and sells passenger tickets. It employs in the city of New York a large number of agents, clerks, and laborers in the prosecution of its business. It is engaged in no business in that city except such as relates to the transportation of freight and passengers over its lines." It was claimed on behalf of the relator in the case cited that the tax imposed was upon interstate commerce in violation of the so-called "commerce clause" of the federal constitution (article 1, § 8, cl. 3). The learned judge further stated in his opinion as follows: "In determining the question now presented, two propositions must be deemed established: One is that the business in which the relator was engaged in this state was exclusively that of interstate commerce. Whatever it did here was incident to, and in aid of, the business of interstate transportation. Interstate transportation was not a part of its business only in this state. The second point which must be deemed to be established is that the tax imposed upon corporations is a tax upon the 'corporate franchise or business,' and is not a tax upon property. We come, therefore, to the crucial question in the case: Can the state of New York tax the relator, a foreign corporation, upon its business carried on in this state, which is exclusively the business of interstate commerce? The question, stated in another form, is, may a state tax a foreign corporation whose business in such state is exclusively that of interstate commerce for the privilege of transacting that business here? because, as we have held, this is the essential nature of the tax, under the act of 1880. People v. Wemple, 131 N. Y. 68, 29 N. E. 1002, 27 Am. St. Rep. 542. The state may subject to a property tax, in common with other property, every description of property, real and personal, having its situs there, although used or employed exclusively in the business of foreign or interstate commerce. Ships or vessels engaged in foreign or coastwise commerce may be taxed at their home port, and the products of one state carried into another, and there held for sale by the original purchaser, and may be taxed, even before sale, in the state to which they have been taken. *** If the tax imposed upon corporations by the act of 1880 and the subsequent statutes amending the same had been a property tax, instead of a tax on franchise or business, it would not, as we interpret the decisions of the United States supreme court, have been subject to the objection now made in behalf of the relator, nor could the relator have lawfully resisted its payment. The tax against the Pennsylvania Railroad Company, involved in this case, was dis

* *

串

tinctly a tax on its business; and that business in this state, as we have said, was exclusively interstate commerce. 串 * The relator is lawfully here, and, being here, it cannot, we think, under the authorities, be lawfully subjected by the state to a tax upon its business of interstate commerce, or for the privilege of conducting its business here." I have thus indicated the precise points upon which the decision in the case cited rests. In that case, as in this, the relator was the Pennsylvania Railroad Company. The question in that case was whether the transportation of passengers from its railway terminus in Jersey City, over certain territory of the state of New York, in ferryboats, was a continuation of its interstate commerce. In this case the question is, if the same relator continues the transportation of its passengers still further into the territory of the state of New York by cab, whether it is a continuation of its interstate business.

The only point raised by the relator in this appeal is based upon the proposition that the transportation of passengers from the New York side of the ferry to and from their residences or hotels is as much a part of its interstate business as was the transportation of its passengers by ferryboat, which was approved by this court, and held to be exclusively interstate commerce. It is uncontroverted in this record that the relator does not seek to do, and does not carry on, a general cab business in the city of New York. It further appears that these cabs are solely used for the purpose of the transportation of passengers coming from or going to the line of the relator's road. The argument on behalf of the state comptroller is that this cab service is to be regarded, necessarily, as an independent business; that it is no part of the transportation of a passenger (by way of illustration) traveling from Washington to the Fifth Avenue Hotel, in the city of New York. We are unable to see any distinction between the right of the relator to transport its passengers by ferry or by cab to or from points in the city of New York. It can be said of the relator in this case, as it was said of it in the case cited, that "it is engaged in no business in that city except such as relates to the transportation of passengers

*

over its lines." It is insisted on behalf of the state comptroller that the cab service is to be regarded as starting and terminating within the state of New York. Even if this were so, that fact alone does not characterize the cab service exclusively as a domestic business. While we are to be controlled by the decisions of the supreme court of the United States, when applicable to a case involving a federal question, I am of opinion that to extend the rule as laid down in the case involving the rights of this relator, and already cited, to the new facts now presented, is not in conflict with any decision of that court, but, on the contrary, is in harmony with a num

ber of well-considered authorities. In the case of The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999, the question was whether the steamboat named, which was engaged in navigating Grand river, Mich., wholly within the limits of that state, should be licensed under the United States statute. It appeared that some of the goods carried by it were destined to, and marked for, points beyond the state of Michigan. The court said (page 565, 10 Wall., 19 L. Ed. 999), referring to the question of interstate commerce: "She was employed as an instrument of that commerce; for, whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of congress." The relator, by its cab service, simply extended its care of passengers at a loss to itself, and provided an additional means of transportation, which conveyed them for a reasonable compensation to their destinations in the city of New York. These passengers, when in the cabs of the relator, were in the process of transportation, precisely as were the goods carried by the vessel Daniel Ball marked for points beyond the state of Michigan. Lord v. Steamship Co., 102 U. S. 541, 26 L. Ed. 224; Foster v. Davenport, 63 U. S. 244, 16 L. Ed. 248; Cutting v. Navigation Co. (C. C.) 46 Fed. 641; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311. In the Leloup Case, Bradley, J., at page 647, 127 U. S., p. 1383, 8 Sup. Ct., 32 L. Ed. 311, said: "But it is urged that a portion of the telegraph company's business is internal to the state of Alabama, and therefore taxable by the state. But that fact does not remove the difficulty. The tax affects the whole business, without discrimination. There are sufficient modes in which the internal business, if not already taxed in some other way, may be subjected to taxation, without the imposition of a tax which covers the entire operations of the company." The case of Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649, has a very strong bearing in principle upon the question we are now considering. That case involved the transaction of certain business in the state of Kentucky by the plaintiff as the agent of the United States Express Company. Mr. Justice Bradley, at page 59, 141 U. S., page 854, 11 Sup. Ct., 35 L. Ed. 649, said: "We do not think that the difficulty is at all obviated by the fact that the express company, as incidental to its main business, which is to carry goods between different states, does also some local business, by carrying goods from one point to another within the state of Kentucky. This

is probably quite as much for the accommodation of the people of that state as for the advantage of the company. But whether so or not, it does not obviate the objection that the regulations as to license and capital stock are imposed as conditions on the company's carrying on the business of interstate commerce, which was manifestly the principal object of its organization. These regulations are clearly a burden and a restriction upon that commerce. Whether intended as such or not, they operate as such. But taxes or license fees in good faith imposed exclusively on express business carried on wholly within the state would be open to no such objection." The case of Maine v. Grand Trunk R. Co., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. Ed. 994, has no application to the case at bar. The defendant operated a portion of its line in the state of Maine, and a franchise tax was imposed thereon. The payment was resisted on the ground that it was a tax imposed upon interstate commerce. The supreme court of the United States sustained this tax on the ground that the defendant enjoyed a franchise granted by the state of Maine, and it was competent for the legislature to require the payment of taxes as a condition to issuing the grant. These facts clearly distinguish the case from the one now under consideration. It may be, however, remarked that the supreme court decided this case on a vote of five to four, and the opinion of the dissenting justices contains cogent reasoning in support of the proposition that the tax is imposed on the business of interstate commerce. The case of Coe v. Town of Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715, cited by the respondent, has no application to the case at bar. That case involved the taxation of a raft of logs which had been cut in the state of New Hampshire, and were destined for shipment to the state of Maine. Prior to the time when they were to be started on their interstate journey, a tax was imposed by the state of New Hampshire, which was sustained by the supreme court of the United States on the ground that, until the transportation was actually begun, these logs were like all other personal property in the state of New Hampshire, and liable to taxation; that the mere intention of the owner, when he cut these logs, to ship them into the state of Maine, would not be considered in determining the right of the state to tax the property. The case of People v. Morgan, 168 N. Y. 1, 60 N. E. 1041, has no bearing upon this controversy. In that case the comptroller sought to collect from the relator a tax, under section 184 of the tax law, for the transportation of domestic mail matter within this state. It appeared, however, that it was impossible to ascertain the proportion of mail which originated and terminated within this state, as distinguished from interstate and foreign mail matter, for the reason that the mail bags could not be inspected for any such purpose. It was held that this state of affairs pre

I am of opinion that the taxes imposed upon the relator by the state comptroller are an interference with interstate commerce, and were unconstitutionally levied and void. The determination of the comptroller and the order of the appellate division should be reversed, with costs.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, and WERNER, JJ., concur with CULLEN, J. BARTLETT, J., dissents.

Order affirmed.

(171 N. Y. 396)

HUNT v. HUNT et al.

(Court of Appeals of New York. June 10, 1902.)

STATUTE OF FRAUDS--ORAL ANTENUPTIAL CONTRACT-MARRIAGE AS PART PERFORMANCE-APPEAL-NECESSITY OF FINDINGS.

1. Marriage in pursuance of an oral antenuptial contract is not a sufficient part performance to remove the bar of 2 Rev. St. pp. 135, 136, c. 7, tit. 2, §§ 2, 8, providing that every agreement or undertaking made on consideration of marriage, except mutual promises to marry, shall be void unless made in writing; and equity will not decree a specific performance.1

2. A question as to certain facts established by the evidence will not be considered by the court of appeals in the absence of a finding thereon by the trial court.

Appeal from supreme court, appellate division, Fourth department.

Suit by Lena E. Hunt against Joseph T. Hunt and another, as executors of Wilson G. Hunt, deceased. From a judgment of the appellate division of the supreme court (66 N. Y. Supp. 957) affirming a judgment in favor of the defendants, the plaintiff appeals. Affirmed.

The plaintiff is the widow of Wilson G. Hunt, deceased. She brought this action to obtain specific performance of an antenuptial contract. Said Wilson G. Hunt died on October 14, 1897, and during the pendency of this action. The defendants, who were substituted in his place, are his heirs at law and next of kin. By his last will and testament, dated and executed on August 30, 1897, said Hunt bequeathed substantially all of his estate, consisting of both real and personal property, to the present defendants. Proceedings for the probate of said will were pending at the time of the decision of the trial court herein.

Edwin Hicks, for appellant. William S. Moore, for respondents.

WERNER, J. This action was brought to compel the specific performance of an oral antenuptial contract which was entered into between the plaintiff and Wilson G. Hunt, the testator of the defendants, prior to their

1 See Frauds, Statute of, vol. 23, Cent. Dig. §§ 6, 299 [g]; 301 [a, j, n).

contract, and in consideration of plaintiff's promise to marry said Wilson G. Hunt, the latter orally agreed to give the former at once the sum of $5,000 in money, the further sum of $2.50 per week, the income of a house and lot in the city of Geneva, N. Y., to convey to her another house and lot in the same city, and to make a will giving her all of his property except a watch and $200. The making of this contract, the subsequent intermarriage of the parties thereto, and the still later breach of the agreement by said Wilson G. Hunt, are established by the findings of the learned trial court, and upon these findings it based the conclusion of law that plaintiff is not entitled to recover because said contract is void under the statute of frauds. Under the unanimous affirmance of the learned appellate division the only question brought to this court by the appellant is whether a parol antenuptial contract, founded upon no other consideration than marriage, can be specifically enforced in a court of equity. The statute provides that "every agreement or undertaking made upon consideration of marriage, except mutual promises to marry," shall be void unless such agreement or undertaking, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith, or his agent. 2 Rev. St. pp. 135, 136, c. 7, tit. 2, §§ 2, 8. The learned counsel for the appellant concedes that the contract in suit falls within the scope of this broad statute, but argues that the intermarriage of the parties to the contract is such a part performance thereof as to invest a court of equity with the power of specific enforcement. The argument for the respondents may be compressed into the single statement that the same act of performance which brings the contract within the sweep of the statute cannot be relied upon to exclude it therefrom. The most notable feature of the statute above quoted is its simplicity and directness of language. All contracts founded upon consideration of marriage, except mutual promises to marry, shall be void unless the commands of the statute are obeyed. Mutual executory promises to marry are expressly excluded from its operation. All other contracts founded upon consideration of marriage are as clearly within its terms. These two divers provisions of the statute, standing in juxtaposition to each other, so plainly disclose the legislative intent as to render construction unnecessary, if not impossible. The letter of the law bears its own interpretation. This view of the statute is not original. Pomeroy, in his work on Contracts, under the head of "Specific Performance" (2d Ed. § 111), states it most forcibly as follows: "When a verbal contract is made in relation to or upon the consideration of marriage, the marriage alone is not a part performance upon which to decree specific execution. This rule, which is firmly

Where a customs broker, with the assent of his clients, has placed their claims against the government with an attorney for collection, with an agreement that such attorney will divide with him the amount of any recovery, he may maintain an action against the attorney for his share of the proceeds, though Code Civ. Proc. 74, prohibits attorneys from making such agreements, the statute being directed against the attorney alone, and not prohibiting a layman from entering into such contract.

Appeal from supreme court, appellate division, Second department.

Action by Henry Irwin against Charles Curie. From a judgment of the appellate division (67 N. Y. Supp. 380), affirming a judgment in favor of defendant, entered on an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

J. Stewart Ross, for appellant. W. Wickham Smith, for respondent.

PARKER, C. J. Thus far in the progress of this action it has been held, mainly on the authority of Hirshbach v. Ketchum, 5 App. Div. 324, 39 N. Y. Supp. 291, that the complaint does not allege a cause of action. It states, in substance, that plaintiff, a customs broker, undertook to collect the claims of importers against the government for excess of duties paid to said government; that with the knowledge and assent of his customers be made an agreement with defendant, an attorney and counselor at law, authorized to appear in the United States courts, whereby plaintiff was to procure employment for defendant in the prosecution of such claims for excess of duties upon contingent fees of 50 per cent., to be equally divided between plaintiff and defendant; that in pursuance of such agreement plaintiff procured the placing with defendant of the claims of Weil & Co., in which matter $37,350.91 was recovered, of which the defendant received $18,€20.45, one-half of which was, under the agreement, due to plaintiff, but which defendant refused to pay. The ground upon which defendant rested his demurrer was that he personally was prohibited by statute from making such an agreement, and that, as the plaintiff participated with him in making a contract which offends against the statute, the courts will not enforce it. If this were true, defendant would be enabled, by an open violation of law, to double the profits which his illegal contract promised him. If this view of the law be correct, it would seem to follow that the statute encourages, rather than discourages, the vice at which it aims. But the law of this state is quite otherwise, and more in accord with sound reason, as we shall point out.

Quite long ago it was settled by this court 64 N.E.-11

that the common law relating to champerty and maintenance no longer obtains in this state. Sedgwick v. Stanton, 14 N. Y. 289. Later, in Fowler v. Callan, 102 N. Y. 395, 7 N. E. 169, this court, Judge Finch writing, said: "It does not affect the validity of the contract between the attorney and his client that, measured by the old rules relating to champerty and maintenance, it would have fallen under their condemnation, for neither doctrine now prevails, except so far as preserved by our statutes." The only statutes in this state relating to the subject of champerty or maintenance now in force are to be found in sections 73 and 74 of the Code of Civil Procedure. Section 73 prohibits an attorney or counselor from buying a claim with the intent and for the purpose of bringing an action thereon, while section 74 reads as follows: "An attorney or counselor shall not, by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person, as an inducement to placing, or in consideration of having placed, in his hands, or in the hands of another person, a demand of any kind, for the purpose of bringing an action thereon. But this section does not apply to an agreement between attorneys and counselors, or either, to divide between themselves the compensation to be received." It will be observed that this statute does not provide that such a contract. shall be wholly void, nor does it in terms purport to operate upon a layman who may be persuaded to procure business for an attorney because of the latter's promise to divide the profits with him. Its prohibition is directed against the attorney and counselor, who is an officer of the court; and the very next section (75) provides that "an attorney and counselor who violates either of the last two sections is guilty of a misdemeanor." Here, again, we note that the penalty inflicted is upon the attorney and counselor alone, and not upon his accomplice, or possibly intended victim. But defendant urges that, notwithstanding the language of the statute is applicable to an attorney and counselor alone, nevertheless the contract upon which plaintiff relies was, so far as defendant is concerned, a prohibited contract, and therefore the courts will not aid either party to the contract as against the other, but will leave them in whatever predicament they may find themselves at the time one or the other of the parties seeks the assistance of the courts. This is undoubtedly the rule where the parties to the contract are in pari delicto as well as particeps criminis, but it was long ago held in this state, in a very careful opinion, written by Judge Selden, in Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132. that the court will, under certain cir cumstances, relieve a party to a contract which the other party was prohibited by statute from making. The principles estab