Herkimer County Light & Power Co. v. Johnson

Follett, J.

(dissenting):

Further consideration of this case leads me to the conclusion that it ought not to be decided on the submission, because all of the parties interested in the subject-matter are not before the court. It is apparent that the town and village of Herkimer, in which the principal place of business of the Herkimer County Light and Power Company is located, has the same interest in respect to the tax district in which the property of the corporation is assessable as has the city of Little Falls, and a judgment should never be rendered on a submission when it is apparent that persons or corporations are interested in the subject-matter that are not parties to the submission. (Baumgrass v. Brickell, 7 N. Y. St. Repr. 685 ; Wavle v. Tuttle, 11 Wkly. Dig. 186; Hobart College v. Fitzhugh, 27 N. Y. 130 ; Wood v. Squires, 60 id. 191; Dickinson v. Dickey, 76 id. 602; Kennedy v. The Mayor, 79 id. 361.) The question is an important one as between the city of Little Falls and the town and village of Herkimer, and while the judgment rendered on this submission will not be binding upon the latter, yet the question ought not to be decided until the rights of all the parties interested can be presented. A judgment recovered in an amicable actioi), or on a submission, though it be in the nature of a proceeding in rem, is not binding on persons not in privity with the litigants and who have had no opportunity of being beard. (Calhoun v. Millard, 121 N. Y. 69; Lord v. Veazie, 8 How. [U. S.] 251; 2 Freem. Judg. [4tli ed.] chap. 13.)

This judgment may result in the Herkimer County Light and Power Company being subjected to double taxation for the year 1898. It is not stated in the submission whether the assessment complained of is for city taxes or for State and county taxes, and the court cannot infer that it relates to State and county taxes or to city taxes. In cases submitted, pursuant to article 2 of title 2 of chapter 11 (§§ 1279-1281) of the Code of Civil Procedure, the court cannot *266draw inferences, and can pass only on facts plainly stated in the submission. (Fearing v. Irwin, 55 N. Y. 486 ; Crosby v. Thedford, 13 Daly, 150 ; Department of Buildings v. Field, 9 App. Div. 500; Beer v. Simpson, 47 N. Y. St. Repr. 219.)

The parties to this submission should be required to serve a copy of it on the supervisor of the town of Herkimer and on the president of the village of Herkimer so that they may have an opportunity to be heard. .

The decision should be postponed or the submission dismissed, without costs to either party.-

Judgment directed for the defendant, without costs.