Sanders v. Saxton

• Decision Date: 24 October 1905
• Citation: 75 N.E. 529,182 N.Y. 477
• Parties: SANDERS v. SAXTON et al.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 477

75 N.E. 529

SANDERS

v.SAXTON et al.

Court of Appeals of New York.

Oct. 24, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Joshua C. Sanders against Charles T. Saxton and others. From a judgment of the Appellate Division (85 N. Y. Supp. 762,89 App. Div. 421), affirming a judgment for plaintiff (73 N. Y. Supp. 1095,89 App. Div. 421), defendants appeal. Reversed.

Julius M. Mayer, Atty. Gen. (Horace McGuire, on the brief), for appellants.

Robert Goeller, for respondent.

CULLEN, C. J.

The action was brought by the plaintiff, as the owner in fee and possessor of certain lands in the late town of New Utrecht, in the county of Kings (now part of the borough of Brooklyn, in the city of New York), against the defendants, except the defendant Roberts, as commissioners of the land office of the state of New York, and against the defendant Roberts, as comptroller of said state, to have certain deeds executed by the comptroller to the people of the state on sales of said lands for unpaid taxes adjudged illegal and void and the record of the same in the registrar's office to be so marked, and to require the comptroller to cancel and vacate the record thereof in his office. Judgment was granted substantially as prayed for in the complaint, and that judgment affirmed by the Appellate Division, from which affirmance an appeal haa been taken to this court.

At the threshold of the examination of this appeal there is presented to us the question of the right of the plaintiff to maintain an action of the character specified against the defendants as officers of the state. This question was raised in the trial court by a motion made at the opening of the case to dismiss the complaint on the ground that it stated no cause of action against the defendants and that the court had no jurisdiction of the subject-matter of the suit. To the denial of that motion the appellants properly excepted. The motion being made on the pleadings, no consideration of the sufficiency of the evidence is involved, and the exception survives the unanimous affirmance by the Appellate Division. We think the question has been erroneously decided by the courts below, that the action was not maintainable, and that the complaint should have been dismissed on the defendants' motion. It is elementary law that the state, being a sovereign, cannot be sued, except with its own consent (Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257;Matter of Hoople, 179 N. Y. 308, 72 N. E. 229), subject, of course, to the one qualification, found in the federal Constitution, that an action may be maintained by one state against another state. But, though the state cannot be subjected to hostile litigation at the instance of the individual, that immunity is not possessed by its officers, who can be held responsible for illegal trespasses or torts on the rights of an individual, even though they act or assume to act under the authority and pursuant to the directions of the state. This principle was established at quite an early period in our history by the decision of the Supreme Court of the United States in Osborn v. Bank of United States, 9 Wheat. 738, 6 L. Ed. 204. There the taxing officers of the state of Ohio threatened to collect a tax imposed by the state on a bank chartered by the United States and had already seized part of the specie held by the bank. It being determined that the state could not constitutionally impose the tax on the bank, it was further held that the officers of the state were properly restrained from collecting the tax and compelled to restore the funds they had already taken. In Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447, it was held that a state officer might be enjoined from executing a state law in conflict with the federal Constitution, and from incumbering, by patents to others, loands which had been contracted to a railroad company. In United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171, it was held that while the United States could not be sued without their consent, still an action might be brought in ejectment to recover lands in the possession of the officers and agents of the United States. These cases and others fully support the doctrine that the officers and agents of the United States and of the states may be sued for their illegal acts or to recover property illegally possessed by them, despite the immunity of their principal.

That doctrine, however, does not cover the case now before us. The defendants are not in possession of the plaintiff's property, nor have they been. They have not committed, nor do they threaten to commit, any trespass thereon, or an other illegal act by which the rights of the plaintiff may be jeopardized or impaired. The action is both in effect and in form to cancel and remove the deeds to the people of the state of New York as clouds upon the plaintiff's title. The grantee in such a deed is plainly a necessary party to such an action, as it is the title of that grantee that is to be passed upon, and it cannot be adjudged void unless he is brought in court. No one would ordinarily think of disputing this proposition. The only reason for omitting to make the state a party in this case is that it cannot be made a party, and for that reason it is sought to avoid the immunity that the state possesses by making its officers parties in its stead. But it is also settled by the decisions of the Supreme Court that ‘the United States are not bound by a judgment to which they are not parties, and that no officer of the government can, by defending a suit against private persons, conclude the United States by the...