Johnson v. Long Island R. Co.

• Decision Date: 17 April 1900
• Citation: 56 N.E. 992,162 N.Y. 462
• Parties: JOHNSON v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 462

56 N.E. 992

JOHNSON

v.LONG ISLAND R. CO.

Court of Appeals of New York.

April 17, 1900.

Appeal from supreme court, appellate division, Second department.

Action by Eugene A. Johnson against the Long Island Railroad Company. From an order of the appellate division (61 N. Y. Supp. 1139) reversing an interlocutory judgment which sustained a demurrer to the complaint, defendant appeals. Reversed.

Vann and Landon, JJ., dissenting.

Alfred A. Gardner and William J. Kelly, for appellant.

Leman B. Treadwell and Francis M. Morrison, for respondent.

BARTLETT, J.

This appeal is taken by permission of the appellate division, which certified three questions to this court: (1) Has the plaintiff in this action legal capacity to sue? (2) Is there a defect of the parties plaintiff in this action, in that the members of the alleged Montauk Tribe of Indians are not made parties plaintiff? (3) Does the complaint herein state facts sufficient to constitute a cause of action? This is an action of ejectment brought by the plaintiff, a citizen of the United States, of Indian blood and lineage, and a member of the Montauk Tribe of Indians by right of birth and affiliation, on behalf of himself and all other persons equally interested with him, who may come in and contribute to the expenses of the action. The demurrer contains a number of grounds stated in detail why the plaintiff cannot maintain this action. The single question presented is whether the plaintiff, as a mumber of this tribe of Indians, can maintain ejectment on behalf of the tribe in the form of action already described. The special term sustained the demurrer to the complaint, but the appellate division, with a divided court, and expressing the opinion that the plaintiff's right is not free from doubt, reversed the interlocutory judgment on the ground that this action is brought in accordance with the views expressed on a prior appeal. Justice Willard Bartlett, dissenting, was of the opinion that the complaint in the present action was not framed in accordance with the previous decision. The prior appeal referred to was in the case of Montauk Tribe of Indians, by Wyandank Pharoah, their chief and king, against the present corporation defendant. 28 App. Div. 470,51 N. Y. Supp. 142. In that case a demurrer was sustained to the complaint on the ground that the plaintiff had no legal capacity to sue, and the appellate division affirmed the interlocutory judgment to that effect. Cullen, J., who wrote the opinion of the court, in which all of the justices concurred, said: ‘It is not worth while to enter upon any discussion of the status of the Indian tribes within this state, as we think that on the question now before us we are concluded by authority. In Strong v. Waterman, 11 Paige, 607, it was held that, while the Indians had the undoubted right to the beneficial use and occupancy of their lands, no provision had been made by law for bringing ejectment to recover possession of them; that, as a body or tribe, the Indians have no corporate name by which they can institute such a suit.’ The learned judge them pointed out that the same doctrine had been laid down in Seneca Nation of Indians v. Christie, 126 N. Y. 122, 27 N. E. 275. That was an action of ejectment brought by the Seneca Nation of Indians to recover certain lands in Erie county, and this court held that the right of the plaintiff to sue in that form was given by and was dependent upon a statute, which was a special act for the protection and improvement of the Seneca Indians residing on certain reservations in this state. Chapter 150, Laws 1845. Judge Andrews, who wrote the opinion of the court, cites on this point the case of Strong v. Waterman, supra, undoubtedly to show that under the law of the state as it then stood this action could not be maintained by the Indian tribe, except by the provisions of an enabling act. In the case of Strong v. Waterman, supra, the action was brought by Strong and Gordon, chiefs of the Seneca Nation of Indians, against a white man, for an injunction restraining him from committing trespasses and waste upon the reservation of the tribe, and from interfering with its possession. The immediate proceeding was a motion to dissolve this injunction. The chancellor, in the course of his opinion, states: ‘No provision, however, has been made by law for the bringing an ejectment to recover the possession of Indian lands in the Cattaraugus reservation; for the right to the possession is in several thousand individuals in their collective capacity, which individuals, as a body, have no corporate name by which they can institute an ejectment suit. * * * The Indians cannot, therefore, institute a suit in the name of the tribe, but they must sue in the same manner as other citizens would be required or authorized to sue for the protection of similar rights.’ It was, therefore, held that the two...