Art. I, § 16

Common and Statute Law

Taxation of Indian lands. It has been held that chapter 254 of the Laws of 1840, authorizing the taxation and sale of Indian lands without any reservation of the rights of Indian occupants, is unconstitutional under this section. The court said: "There being no saving of the rights of Indians, the inevitable consequence of holding the taxes to be valid would be that the whole tribe might be dispossessed by the purchaser at the comptroller's sale. The reasoning upon which it has been shown that the sale actually made was void, equally proves that these taxes were illegally imposed. Such taxes were inconsistent with the policy which this state has always observed towards the Indian tribes residing on their reservations within this state. Each of the three constitutions successively adopted by the people of the state has contained a provision like that in the present constitution." Fellows v. Denniston, (1861) 23 N. Y. 420, reversed on other grounds, 5 Wall. 761, 18 U. S. (L. ed.) 708. Furthermore, it appears that even though the act just referred to had provided that the taxation and sale should "not affect the rights of occupancy of the Indians," it would have been void under the treaties in existence between the federal government and the Indians. New York Indians, 5 Wall. 761, 18 U. S. (L. ed.) 708.

§ 16. Retention of common and statute law.

Such parts of the common law, and of the acts of the Legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred and seventy-five, and the resolutions of the Congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.

Const. 1777, Art. XXXV; amended, Const. 1821, Art. VII, § 13; amended, Const. 1846, Art. I, § 17; amended, Const. 1894, Art. I, § 16.

Judicial alteration of common law. The courts are precluded from altering such parts of the common law as are continued under this section. Per Woodward, J., concurring in Gibson v. Casein Mfg. Co., (1913) 157 App. Div. 46, 141 N. Y. S. 887.

Determination of common law.— The common law originated early in the history of England. Its rules were principally retained in memory and handed down from generation to generation until they became the unwritten law of the land. These rules were of course applied in cases at law, and "where recognized printed reports of the English courts prior to 1775 show that the common law on any particular subject was by such case established and determined as therein stated, such reports are the best and highest evidence of such common law." Many early decisions, however, were never reported; wherefore, it frequently happens that no case decided prior to 1775 can be found giving expression to a principle admittedly part of the common law; accordingly, "where the rules of the common law relating to a matter

Common and Statute Law

Art. I, § 16

under consideration are not expressly stated in the reported cases of the English courts prior to 1775, the statement of the courts of this country and of England subsequent to that time, especially when they do not purport to modify the common law, are not only entitled to careful consideration, but to great weight in determining the common-law rule prior to 1775. An unreserved statement by a court as to the common law rule will, in the absence of other authority, be assumed to be based upon custom and the unwritten law antedating such time." Waters v. Gerard, (1907) 189 N. Y. 302, 82 N. E. 143, 121 A. S. R. 886, 12 Ann. Cas. 397, 24 L. R. A. (N. S.) 985, affirming 106 App. Div. 431, 94 N. Y. Supp. 702.

Extent of adoption of common law." The adoption by the people of this state of such parts of the common law, as were in force on the 20th day of April, 1777, does not compel us to incorporate into our system of jurisprudence principles, which are inapplicable to our circumstances and which are inconsistent with our notions of what a just consideration of those circumstances demands. Such as were inconsistent with the spirit of our institutions, or had special reference to the physical conditions of a country widely differing from our own, never became a part of our law, upon the orgnization of this state." Per Gray, J., in Brookhaven v. Smith, (1907) 188 N. Y. 74, 80 N. E. 665, 11 Ann. Cas. 1, 9 L. R. A. (N. S.) 326, reversing 98 App. Div. 212, 90 N. Y. S. 646; People v. Canal Appraisers, (1865) 33 N. Y. 461.

Law of waters.- "The common law of England, upon the subject of the rights of riparian owners, has but an imperfect application to the situation in a state like this, with its numerous large navigable bodies of waters, in bays, rivers and inland lakes." The common-law rule that the owner of lands bounded by tidal or navigable waters had no right to build a pier below highwater mark for the convenient access to his property and that such a structure was a purpresture, subject to removal at the pleasure of the state, should not, therefore, be applied in this state. On the contrary, the right

of access should be protected unless it has been appropriated by the general government to some superior lawful use and a pier or wharf constructed by a riparian owner cannot be arbitrarily removed by a municipality owning the under-water lands. Brookhaven v. Smith, (1907) 188 N. Y. 74, 80 N. E. 665, 11 Ann. Cas. 1, 9 L. R. A. (N. S.) 326, reversing 98 App. Div. 212, 90 N. Y. S. 646. Similarly, the rule of the common law under which the owner of lands bounded by a fresh-water river not subject to the flux and efflux of the tide took title to the bed of the stream usque ad medium filae whether or not the river was in fact navigable, is not continued in this state. The title to the bed of such streams now reposes in the state, not in riparian owners; and the latter have no claim to damages because of the diversion of the waters thereof for the purposes of a public canal. People v. Canal Appraisers, (1865) 33 N. Y. 461.

Royal prerogatives and functions. Those parts of the common law consistent with the constitution, unaltered by statute and suitable to the condition of the state, are continued in force. Accordingly, while the personal prerogatives of kinship are repugnant to the constitution and are therefore abrogated, the sovereignty, powers, and functions with which the king as the head of the government was invested at common law, are compatible therewith and by virtue of this section devolve on the people of the state. Thus the state has succeeded to the right which the king had at common law to preference in the payment of debts due from an insolvent, and where it has funds on deposit with an insolvent trust company, it is entitled to a preference in payment over other depositors and creditors not having a prior specific lien on the assets. In re Carnegie Trust Co., (1912) 206 N. Y. 390, 99 N. E. 1096, 46 L. R. A. ( S.) 260, affirming 151 App. Div. 606, 136 N. Y. S. 466.

Art. I, § 16

Common and Statute Law

Tort liability of county. In the absence of statutory provisions counties are not liable to private individuals for the results of acts done in the performance of government duties in so much as that liability did not attach to such organizations at common law. Wherefore, a county cannot be sued by a private individual for personal injuries sustained by him from a defective bridge with the maintenance of which the county was chargeable. Markey v. Queens, (1898) 154 N. Y. 675, 49 N. E. 71, 39 L. R. A. 46, affirming 9 App. Div. 627, 41 N. Y. S. 1123.

Liability of master for injury to servant.- The rule of the common law conditioning the liability of a master for accidental injuries received by his servant on neglect by the former of some duty owed by him to the latter and on the absence in the latter's conduct of any negligence contributing to the accident is continued by this section. Per Woodward, J., concurring in Gibson v. Casein Mfg. Co., (1913) 157 App. Div. 46, 141 N. Y. S. 887.

Lien of innkeeper.- A lien for the value of a guest's entertainment attached at common law in favor of an innkeeper on all the goods in the rightful possession of the guest although a third person was the owner thereof. That lien exists now by virtue of this section. Waters v. Gerard, (1907) 189 N. Y. 302, 82 N. E. 143, 121 A. S. R. 886, 12 Ann. Cas. 397, 24 L. R. A. (N. S.) 958, affirming 106 App. Div. 431, 94 N. Y. S. 702.

Challenge of juror.- The right of the accused peremptorily to challenge a juror in cases of felony exists until the juror is actually sworn, such having been the rule at common law. People v. Carpenter, (1885) 36 Hun 315.

Appearance at trial of party to civil suit.— At common law a party to a civil suit had an absolute right personally to appear and defend his interests. He could not be excluded at any stage of the trial. That right exists now by virtue of this section; and an infraction thereof by the trial court is reversible error. Chandler v. Avery, (1888) 47 Hun 9, 14 N. Y. St. Rep. 165. Charitable trusts.- The English doctrine of indefinite charitable uses is inconsistent with the law of this state and therefore is abrogated by this section. Holland v. Alcock, (1888) 108 N. Y. 312, 16 N. E. 305, 2 A. S. R. 420, affirming 40 Hun 372; Bascom v. Albertson, (1866) 34 N. Y. 584, affirming 1 Redf. 340 and overruling Williams v. Williams, 8 N. Y. 525.

Statutes continued in force; civil service laws.-The civil service laws in force when this section was adopted are preserved under the clause providing for the continuance of such acts as were then in force and are not repugnant to the Constitution. Those laws are not inconsistent with or abrogated by art. 5, § 9. People v. Lyman, (1898) 157 N. Y. 368, 52 N. E. 132, affirming 30 App. Div. 135, 50 N. Y. S. 444, 51 N. Y. S. 641; Chittenden v. Wurster, (1897) 152 N. Y. 345, 46 N. E. 857, 37 L. R. A. 809, reversing 14 App. Div. 483, 43 N. Y. S. 1035; People v. Roberts, (1896) 148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 399, affirming 91 Hun 101, 34 N. Y. S. 641, 36 N. Y. S. 677.

Jurisdiction of Supreme Court. By the Act of May 6, 1691, the Supreme court was created and was given the same jurisdiction as was exercised by the English courts of King's Bench, Common Pleas and Exchequer. That statute was continued in force by the provisions of this section and the Supreme Court has now, in addition to its chancery jurisdiction later conferred, the general jurisdiction exercised by the above-mentioned courts prior to 1775. Hence, as the court of King's Bench had long recognized and enforced the right of a stockholder of a corporation to examine its books and papers, the Supreme Court may now compel the officers of a corporation to permit an examination of its books by stockholders. Matter of Steinway, (1899) 159 N. Y. 250, 53 N. E. 1103, 45 L. R. A. 461, affirming 31 App. Div. 70, 52 N. Y. S. 343.

Appointment of extraordinary term of Supreme Court by governor.— The power of the governor of the state under section 234 of the Code of Civil Procedure to call extraordinary terms of the Supreme Court is not inconsistent with, and hence is not abrogated by, art. 6, § 2 of this Constitution authorizing the Appellate Division to prescribe the times and places for holding that court. People v. Young, (1897) 18 App. Div. 162, 45 N. Y. S. 772.

Vested Rights and Remedies

Art. I, § 17

Grants to municipalities.- The Act of May 6, 1691, confirming certain grants of lands, privileges, and franchises to municipal corporations is continued and made a part of the law of the land by this section. People v. Jessup, (1889) 160 N. Y. 249, 54 N. E. 682, reversing 28 App. Div. 524, 51 N. Y. S. 228.

§ 17. Royal and state grants and charters preserved.

Obligation of debts, property rights and judicial proceedings preserved.

All grants of land within this State, made by the king of Great Britain, or persons acting under his authority, after the fourteenth day of October, one thousand seven hundred and seventyfive, shall be null and void; but nothing contained in this Constitution shall affect any grants of land within this State, made by the authority of the said king or his predecessors, or shall annul any charters to bodies politic and corporate, by him or them made before that day; or shall affect any such grants or charters since made by this State, or by persons acting under its authority; or shall impair the obligation of any debts, contracted by the State or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice.

Const. 1777, Art. XXXVI; amended, Const. 1821, Art. VII, § 14; continued without change in Const. 1846, Art. I, § 18, and in Const. 1894, Art. I, § 17. Relation to article 1, section 16.- Though by article 1, section 16 of the constitution that part of the common law prevailing prior to 1775, and not inconsistent with the constitution, is made the law of the land, only that part consistent with the exigencies of this state is adopted. The commonlaw rule denying to riparian owners of lands bounded by navigable or tidal streams the right to build piers or wharves below high-water mark for convenient access to their property and regarding such structures as purprestures, subject to removal at the will of the sovereign is not applicable in view of geographical conditions to this state and the rights of riparian owners deriv ing title from royal grants are not limited thereby. Brookhaven v. Smith, (1907) 188 N. Y. 74, 80 N. E. 665, 11 Ann. Cas. 1, 9 L. R. A. (N. S.) 326, reversing 98 App. Div. 212, 90 N. Y. S. 646. Confirmation of grants generally. It has been said that although this section does not in terms confirm all grants of land made prior to October 14, 1775, yet, that "from that day "this provision "has been regarded as such confirmation." People v. Clarke, (1850) 19 Barb. 120, affirmed 9 N. Y. 349. The effect, then, of this section was to continue and validate all grants made prior to October 14, 1775. Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 11 Ann. Cas. 1, 9 L. R. A. (N. S.) 326, reversing 98 App. Div. 212, 90 N. Y. Supp. 646; People v. Jessup, 160 N. Y. 249, 54 N. E. 682, (1889) 28 App. Div. 524, 51 N. Y. S. 228; Sage v. New York, (1897) 154 N. Y. 61, 47 N. E. 1096, 61 A. S. R. 592, 38 L. R. A. 606; Brookhaven v. Strong, (1875) 60 N. Y. 56; People v. Hand, reversing (1913) 158 App. L`iv. 510, 135 N. Y. S. 192, 143 N. Y. S. 1138; Slingerland v. International Contracting Co., (1899) 43 App. Div. 215, 60 N. Y. S. 12, affirmed (1901) 169 N. Y. 60, 61 N. E.

995, 56 L. R. A. 494; People v. Clarke, (1851) 10 Barb. 120, affirmed 9 N. Y. 349. Thus, it has been held that the royal grants to the town of Southampton of lands and waters at and opposite Potunk Point in Great South Bay are preserved by this section. People v. Jessup, (1889), 160 N. Y. 249, 54 N. E. 682, reversing 28 App. Div. 524, 51 N. Y. S. 228.

General effect of provision as to charters. The provision of this section relative to "charters to bodies politic and corporate" is not a restraint upon legislative power. Its object is simply "to leave the charters referred to intact so far as the operation of the Constitution itself" is concerned. Demarest v. New York, (1878) 74 N. Y. 161, affirmed 11 Hun 19; People v. Hogan, (1914) 165 App. Div. 298, 151 N. Y. S. 261; People v. Hand, (1913) 158 App. Div. 510, 135 N. Y. S. 192, 143 N. Y. S. 1138.

Reserved authority over charter. The legislature "in pursuance of a right reserved may alter or repeal the charter of a corporation without violating this section. In re Reciprocity Bank, (1860) 22 N. Y. 9. In that case the court said: "This constitution of 1821, in force when this bank was chartered, required the assent of two-thirds of the members in each branch of the legislature to pass an act creating, altering, continuing or renewing any body politic or corporate.' The charter of this bank, as we have seen, reserved to the legislature the right at any time to alter, modify or repeal, the act. The constitution of 1846 does not require a twothirds vote in enacting laws of this character, and the statute of 1849, imposing the liability in question upon the stockholders, was not passed by such a vote. It is now urged that the provision referred to in the constitution of 1821 entered into the compact between the state and the corporators in this institution, and therefore, that no act of the legislature can be passed affecting their rights as such, without the assent of two-thirds of the members elected to each branch. To this doctrine we cannot assent. Regarding the reserved power to alter, modify or repeal, as a part of the compact, its literal and obvious interpretation is, that the franchises and privileges granted were at all times subject to abrogation or change by the legislative power of the state. The fundamental law might be changed either in respect to the constitution of the legislative body, the mode of its action or the majorities by which it could act in reference to this or any other subject. The power reserved in this charter was one to be exercised at any time by the existing legislative authority, however constituted, and in any mode conforming to the organic law of the state for the time being."

§ 18. Damages for injuries causing death.

The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.

Const. 1894, Art. 1, § 18.

General effect. The effect of this section is twofold; "it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in whose favor a right of action is given for such wrongs." O'Reilly v. Utah, etc., Stage Co., (1895) 87 Hun 406, 34 N. Y. S. 358.

The "right of action" referred to by this section was the right of action given under chapter 450 of the Laws of 1847, as amended by chapter 256 of the Laws of 1849 and chapter 78 of the Laws of 1870, "and was a right of action given for the benefit of the husband or widow and next of kin of the decedent and it was thus placed beyond any interference by the Legislature as to its essential elements." This provision relates only to the rights of action arising under " the laws of New York, "and not to the rights

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