By the Court,
Clerke, P. J.These cases come within the scope of the decision óf the óourt of Appeals mentioned in my opinion in Ferran v. Hosford (ante, p. 200,) heard also during this present term. The only point taken by the plaintiffs’ counsel on the argument, not taken in Ferran v. Hosford, is, that the objection to the unconstitutionality of the act of 1862 was not taken on the trial.- This point undoubtedly would be tenable, if the objection, had it been raised on the trial, was capable of being obviated; as where it was possible that new or additional evidence could have been supplied. (Rich v. Penfield, 1 Wend. 380. Lawrence v. Barker, 5 id. 301.) But an objection to the unconstitutionality of an act of the legislature could not have been obviated by any action of the plaintiffs. hTo effort on their part could make a law constitutional which, at the time of the trial and at all times since its enactment, was unconstitutional; although the competent authority had not declared it to be unconstitutional, until some time afterwards.
The judgments should be reversed, with costs.
Clerke, Cardozo and Geo. G. Barnard, Justices.]