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thereof, either in specie or by full and lawful compensation for the same duly made, or where such money, funds, credit or property shall be hereafter without right obtained, received, converted or disposed of, the people of this State have in every such case and shall have a right of action for the same and for any damages, or other compensation due recoverable or that might be had on account or by reason of such obtaining receipt, conversion or disposition, notwithstanding a right of action may exist by law, for the same cause in some public authority other than the State, and although an action therefor may be pending.

This is sufficient for a comprehension of the scope and intention of the law, so far as concerns actions under it. Without verbiage or repetition the plain provision is that, where money or property held or owned officially or otherwise, for any public or governmental interest by any public corporation, board, officer, custodian or agent of any portion or subdivision of the State shall, without right, be received, converted or disposed of, the people of the State shall have a right of action for the same and for damages.

Here was no property held by an officer, custodian or agent, and no conversion thereof by any person sustaining that relation. The allegations of the complaint are that the land in question was the property of the town of Gravesend, that the defendant first obtained possession of it and then improperly procured the passage of a resolution by the annual town meeting of the town, for a valuation of the property and a sale and conveyance thereof to the defendant, which resolution was carried into execution by a conveyance to the defendant and the payment of the appraised valuation.

The specific wrong complained of is the packing of the town meeting with spurious and fraudulent voters, and thus giving a false direction to the action of that body, detrimental to the interests of the town. This was clearly ill and wrong, but not the kind of evil intended to be redressed under the statute of 1875. It is the case of an improvident disposition by a town of its real property through the instrumentality of a town meeting controlled by unjustifiable influences. There may be redress for such a wrong, but it does not lie in the remedy the plaintiff has pursued.

It is quite true that under our political system a town has many

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of the attributes of a corporation, but it does not follow that because such a body makes an improvident disposition of its property, even though the same is induced by fraud or wrong, a restoration can be procured by an action in the name of the people, under this statute. The statute has relation to wrong, frauds and conversions perpetrated by a corporation or natural person sustaining some fiduciary relation to the true owner, not to dispositions of property by the owner, even though influenced and obtained by fraud.

In the next place, the town of Gravesend is a necessary party to this action. The statute of 1875 provides, beyond what has already been quoted, that on the commencement of any action or judicial proceeding under it for the recovery of money or property by the State, all such money and property, if not so previously vested, shall then forthwith be vested in the people of the State of New York, and are by force of such suit, action or judicial proceeding, and of this act, transferred to and vested in the people of the State. This portion of the statute proposes to take private property either of an individual or a corporation and transfer it to the State without compensation, in violation of the provisions of the Constitution in that behalf. If given any operation in this case, it would transfer the property in question to the State and vest the title thereof in the people.

If made a party to this action, the town may raise objection to this disposition of the property, or it may acquiesce therein, as any party may waive a constitutional provision existing for his benefit. Not being a party to the action, none of the proceedings therein will have any binding force against the town.

True it is, that section 3 of the act gives power to the court to make such order and judgment as may be just and equitable for the disposition of the proceeds of any recovery in the action, so as to reinstate the lawful custody which was disturbed by the wrong complained of, whether the true owner was a party to the action or not, and it has been contended that it was not the intention of the law of 1875 to deprive the owner of any property, but to devise a remedy for its recovery.

This latter view seems to give but small force to the intention

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of section 1 of the law, as expressed in plain language, but it is not essential to examine it further now.

Another plain reason why the town should be made a party to this action, is this. The sale of this property, though induced by fraud, was not absolutely void, but voidable only, at the option of the town, the defrauded party. It may be that the town elects to affirin the transaction, and that can only be determined in this action by making the town a party thereto and thus presenting the opportunity to repudiate or affirm the sale and conveyance. (Matteawan Company v. Bentley, 13 Barb., 641; Baker v. Robins, 2 Denio, 138; Cobb v. Hatfield, 46 N. Y., 533.)

Another reason why this action cannot be sustained, is that if the town elects to disaffirm the sale, before any measures can be adopted in that direction, whatever has been received in pursuance of it must first be restored. There is no rule of law or justice that will permit the State to take the property in question from the defendants, while the town holds on to the money which they paid for it. The sale and conveyance remained in full force and operation until disaffirmance and restoration by the town. (See cases last cited.)

The judgment must be reversed, with costs and disbursements. BARNARD, P. J., concurred; GILBERT, J., not sitting.

Judgment reversed, and judgment for defendant, with costs, unless the plaintiff amend in twenty days, on payment of costs.

GEORGE D. CRAGIN, APPELLANT, v. ELIZA A. QUITMAN, INDIVIDUALLY, AND AS EXECUTRIX, &c., OF LOUISE S. QUITMAN, DECEASED, RESPONDENT.

Demurrer-will not lie unless the defect appears on the face of the pleading demurred to.

Where, in an action brought to recover damages for a failure of the defendant to perform an agreement as to the sale of a plantation, alleged in the com

SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

plaint to be situated in the State of Louisiana, the defendant, in her answer, set up as a counter-claim that the plaintiff, while in possession of "Live Oaks," "the said plantation," " unnecessarily injured, wasted and damaged it to the amount of not less than $10,000, it nowhere appearing from the said answer, except by reference to the complaint, that the plantation was situated in another State, a demurrer to the counter-claim on the ground that the court had no jurisdiction of the subject thereof—as being founded upon an injury to real property situated in another State-cannot be sustained.

APPEAL from an interlocutory judgment in favor of the defendant, entered upon a decision overruling a demurrer interposed by the plaintiff to a counter-claim set up in the defendant's answer.

The complaint alleged an agreement made by the defendant and her testatrix, her sister, that the plaintiff should be allowed to gain title to a certain plantation in Louisiana, known as "Live Oaks," upon payment of certain mortgage notes held by the said defendant and her testatrix, the part performance of the agreement by the plaintiff, his willingness to perform the remainder, and the breach of the agreement by the defendant and her testatrix, and demanded judgment for $10,000 damages for the breach of the said contract.

The defendant answered, denying the making of the said agreement, and setting up a counter-claim in the following language:

"Fourth. For a fourth and further answer, defendant alleges, upon information and belief, that during the time while plaintiff was in possession of the said "Live Oaks," claiming to be owner, and at the time the improvements on the said premises are alleged to have been made by him, and while recognizing the validity of defendant's lien, and as part of the same transaction out of which the alleged cause of action arises, this plaintiff unnecessarily broke, destroyed, injured and wasted the said plantation and the fences, buildings, out-buildings, fixtures, appurtenances and improvements to the property, and so carried on the business of the plantation and conducted the tillage and cultivation thereof, that the same was greatly damaged, in the amount of at least $6,000, for which sum defendant asks judgment, and which amount she counter-claims in this action."

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To this counter-claim the plaintiff demurred on the ground that it appeared that the court had not jurisdiction of the subject thereof.

Edward B. Cowles, for the appellant.

J. Newton Fiero, for the respondent.

DYKMAN, J.:

Ar. action for the recovery of damages for injury to real property cannot be sustained out of the territory where the injury was committed. When the cause of action is necessarily local the territorial jurisdiction is exclusive. It has accordingly been long settled that an action for damages done to real property in one of the other States of this Union cannot be maintained in the courts of this State. (Watts v. Kinney, 6 Hill, 82; American Union Telegraph Co. v. Middleton, Court of Appeals, March 10, 1880, not reported.)

It seems to have been assumed that the counter-claim set up in the amended answer of the defendant in this action, to which the plaintiff interposed a demurrer, is for injury to real property outside of the State of New York, but the difficulty is that the fact does not appear on the face of the answer. The only fact stated is, that the injury and waste complained of were done on the plantation called the Live Oaks, but where the land is situated is nowhere alleged in the answer. The answer refers to the Live Oaks mentioned in the complaint, and if we were at liberty to turn to the complaint it would be found, there alleged, that the plantation mentioned is located in the State of Louisiana. This will not suffice. The plaintiff can only demur to a counter-claim, or a defense consisting of new matter contained in an answer, on the ground that it is insufficient in law on the face thereof. (Code Civ. Pro., § 494.) As, therefore, the insufficiency of the answer does not appear on its face, the objection to it cannot be raised by demurrer. It can only be raised on the trial after the facts are disclosed by the testimony.

The judgment appealed from must be affirmed, with costs.