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do so substantially as well here as in New York City, and that he will find, upon reflection, that a conscientious regard for his official obligations will not permit him to withdraw from such defense. However, that is a matter for him, not this court, to decide; and I would not express any opinion in reference to it, except for the intimation, in the moving papers and upon the argument, that in case this motion be denied he may feel compelled to withdraw.
In conclusion, I think that it is clearly my duty to try the issue, and shall proceed to do so upon the day assigned.
The motion is therefore denied.
PEOPLE ex rel. BAKER et ux. v. DEPARTMENT OF HEALTH OF CITY OF NEW YORK.
(Supreme Court, Appellate Division, First Department. April 8, 1909.) HEALTH (8 34*)-RECORD OF BIRTHS-NAME OF CHILD-CORRECTION of Mistake. Greater New York Charter (Laws 1901, p. 522, c. 466) § 1237, requires physicians and professional midwives to keep a registry of births at which they have assisted professionally, which shall contain as near as can be ascertained the time of birth, name, sex, and color of the child, and names and residence of the parents, and to report it to the department of health within 10 days. Section 1240 requires the department of health to keep a record of births, stating such facts, among others, as fully as they have been received. Section 1241 provides that no alteration shall be made in the records of the bureau of records without approval of the commissioner of health. Held, that the name of a child should be acceptable to both parents, and where, on the day a child was born the mother, when asked by the attending physician, told him the name she intended to give the child, later, before she recovered from her illness, reiterated her intention, not knowing the purpose of the inquiry, the husband not being present on either occasion and not having been consulted by the physician, and the physician reported that name, and subsequently the parents decided in good faith upon a different name, by which the child was baptized and generally known, it never having been known by the other name, it was the duty of the commissioner of health to correct the record to conform to the baptismal name upon due application; the case not being an attempt to change the child's name, necessitating the procedure prescribed by Code Civ. Proc. §§ 2410-2415.
[Ed. Note. For other cases, see Health, Dec. Dig. § 34.*]
Appeal from Special Term, New York County.
Mandamus by the People, on the relation of Edward Young Baker and wife, against the Department of Health of the City of New York. From an order granting a peremptory writ, defendant appeals. Affirmed.
Argued before INGRAHAM, LAUGHLIN, CLARKE HOUGHTON, and SCOTT, JJ.
Theodore Connoly (Clarence L. Barber, on the brief), for appellant. T. Ludlow Chrystie, for respondents.
LAUGHLIN, J. The petitioners are husband and wife, and at the times in question they resided in the borough of Manhattan, New York. On the 15th day of July, 1906, a male child was born to them.
On that day the mother stated to the attending physician that she intended to name the baby Edward Young Baker, Jr., and on the 23d day of the same month she reiterated that intention to him; the statement on each occasion having been made in answer to a question put by him. On the latter date the physician made a record of the birth of the child on his registry, and forwarded a certificate thereof to the department of health, and in it stated the name of the child as thus given to him by the mother. The father was not present on either occasion, and he was not consulted by the attending physician with respect to the name of the child. It does not even appear that the mother knew the purpose of the inquiry, or that the physician intended to state the name of the child in the certificate of birth. It does appear that the mother had not sufficiently recovered from her illness to discuss the name of her child with her husband until some three weeks after his birth, when they decided to name him William Henry Baker, since which time he has been known by that name, and was baptized and christened by that name on the 22d day of March, 1908, at St. Andrews Church, Harlem. On the 30th day of August, 1908, the relators had another son born to them, whom they named Edward Young Baker, Jr., and he was so named in the certificate of birth filed with the department of health. The relators subsequently petitioned the commissioner of health to correct the record with respect to the name of the first child mentioned to conform to his baptismal name; but he denied their application, and then they instituted this proceeding to obtain that relief.
The only point made by the learned counsel for the appellant is that this is an attempt to change the name of the child, and that the provisions of the Code of Civil Procedure, §§ 2410-2415, afford the exclusive remedy. We are of opinion that this is not the case of a change of name within the contemplation of the provisions of the Code of Civil Procedure relating to changes of names of individuals. By section 1240 of the Greater New York Charter (Laws 1901, p. 523, c. 466) the department of health is required to keep a record of births, which "shall state the place and date of birth, the name, sex, and color of the child, residence and birthplace of parents, occupation of the father, and the maiden name of the mother, as fully as they have been received, and the time when the record was made"; and section 1241 of the same charter provides that:
"No change or alteration shall at any time be made in any of the records in the said bureau of records of the said city without proof satisfactory to and upon the approval of the said commissioner of health."
It is the duty of physicians and professional midwives "to keep a registry of the several births in which they have assisted professionally, which shall contain, as near as the same can be ascertained, the time of such birth, name, sex, and color of the child, the names and residence of the parents, and to report the same within ten days to the department of health." Greater New York Charter, § 1237. The only real objection, according to the record, made by the department of health, is one of convenience; it being claimed that applica
tions of this nature have become very numerous, and that, if they are granted freely, it will result in serious mutilation of the records.
It is manifest that mistakes and inaccuracies will inevitably occur with respect to the names of children and of their parents, and of the other facts required to be stated in a certificate of birth and entered of record in the department of health, and it may be a matter of great importance to the individual concerned to have these records corrected to avoid embarrassment with respect to paternity, the inheritance of property, and marriages. The name of a child should be selected by and be acceptable to both parents. The parents never decided upon the name contained in the certificate of birth for this child. There is nothing to indicate that the parents have not acted in good faith. They did not first give the child one name and then change it. They only once named their son, and that occurred as soon as the mother was able to confer with her husband on the question of selecting a name. Both parents agreed upon the name by which the child was subsequently baptized, as is shown by the certificate of baptism presented, and the child was never known by the name recorded in the records of the department of health.
Authority is conferred by the provisions of section 1241 of the charter, herein quoted, upon the commissioner of health to correct the records; and where a mistake has thus been made it should be corrected by him on due application. The material facts were duly presented to him and no question is raised in this regard. We have no doubt that in this particular case the commissioner would have corrected the records, were it not for the fact that he thought that it would be establishing a precedent, and on account of the number of applications and the extent to which the records may be altered, if these applications be granted, he evidently desired a ruling by the court upon his authority and duty in the premises. We are of opinion that the commissioner was authorized to make the correction, and that it was his duty to make it.
It therefore follows that the order should be affirmed, with $10 costs and disbursements. All concur.
(62 Misc. Rep. 330.)
STUDWELL et al., Park Com'rs, v. HALSTED et al.
(Supreme Court, Special Term, Westchester County. February, 1909.) EMINENT DOMAIN (§ 265*) — ALLOWANCE FOR COUNSEL AND EXPERTS - "JUST COMPENSATION."
While, doubtless, the constitutional "just compensation" requires a fair indemnity to the landowner in condemnation proceedings for his necessary expenses in proving the value of the land, he not to be fully indemnified for any unusual compensation which he may choose to pay his counsel and expert witnesses; but the allowance will be according to the standards and customs of the locality.
[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 692; Dec. Dig. § 265.*
For other definitions, see Words and Phrases, vol. 4, pp. 3897-3902.]
Condemnation proceedings by Edwin F. Studwell and others against August M. Halsted and others. Halsted moves for rehearing of his motion for allowance of costs and expenses. Motion denied.
Truman H. & George E. Baldwin, for the motion.
MILLS, J. This is a condemnation proceeding taken by the commissioners of parks of the town of Rye, in Westchester county, to acquire for a public park certain land commonly known as "Oakland Beach," on the shore of Long Island Sound. Commissioners of appraisal were duly appointed by the court and have made their report, in which they awarded the owner, for the property thus taken, the sum of $295,000. Upon the application made to this court at Special Term to confirm the report of the commissioners, and the award thereby made, a motion was made by the counsel for the owner for an allowance to the owner of 5 per cent. upon the amount of the award, in addition to taxable costs; the latter to include $3,000 as compensation paid by the owner to expert witnesses. Application was also made, in behalf of the commissioners of parks, to fix the compensation to be paid by them or the town to their counsel in the proceeding and to their expert witnesses. It appeared that two expert witnesses had been called upon each side, and that the town, or the commissioners of parks representing the town, had agreed to pay $100 to the two witnesses upon their side of the matter, viz., $250 to one and $150 to the other. It was claimed by the owner that, while one of his expert witnesses had served without pay, owing to his friendly relations with the owner, he (the owner) had been compelled to agree to pay to the other one the sum of $3,000 for his services.
After carefully considering the matter I allowed to the counsel for the plaintiffs—that is, the commissioners of parks-for his services the sum of $2,950, and fixed the compensation of the expert witnesses employed in behalf of the plaintiffs at the sum of $100, and made the same allowances to the owner, in addition to taxable costs, and filed a memorandum of my decision as to the owner's motion in the following words:
"I consider that the award made by the commissioners to the owner, Augustus M. Halsted, is ample, and, indeed, liberal; and I think that an extra allowance of 1 per cent. upon the amount of the award will, under all the circumstances, be sufficient. Accordingly I allow the defendant owner, Augustus M. Halsted, an extra allowance of $2,950, and also taxable costs, which may include an allowance of $400 for expenses in procuring the expert witness whom he paid. A compensation of $3,000 to such witness, which it is claimed such owner paid him, is far beyond any price or rate warranted by the usage of this locality, and should not be charged against the town."
The owner now moves before me, at Special Term, for a rehearing of his motion for allowances for costs and expenses, and asks that the allowance made to him, which was 1 per cent. of the amount of the award, may be increased to 5 per cent. thereof, and that the amount allowed him for disbursements for compensation to expert witnesses may be increased from the sum of $400 to $3,000.
The chief ground presented by the affidavits in behalf of the own
er for a reconsideration of the matter appears to be that, since the hearing of the former motion herein, he has ascertained that recently, in certain condemnation proceedings in the present Second judicial district, this court at Special Term, in somewhat similar proceedingsthat is, proceedings to condemn lands for a public park-has made far greater allowances both for counsel fees and for expenses of securing expert witnesses, and he places special reliance upon the orders in this regard made by the Special Term in Kings county on the 10th of July last in certain proceedings to condemn certain water front land for a park to be known as "Owl's Head Park," in that county. It appears that the proceeding for such condemnation was discontinued by the board of estimate and apportionment of New York City, as was authorized by section 1000 of the Greater New York charter (Laws 1901, p. 426, c. 466). Such section provides that:
"In the case of such discontinuance the reasonable, actual cash disbursements necessarily incurred and made in good faith by any party interested shall be paid by the city of New York after the same shall have been taxed by a justice of the Supreme Court or by a referee under his special order."
By such order it appears that the aggregate sum of $26,500 was allowed to three owners for their expenses for counsel fees in the proceeding, viz., $15,000 to one owner, $7,500 to another, and $4,000 to the third. It also appears by the moving affidavit that at another Special Term, held by another justice in the Second district on the 28th of July, 1908, in a condemnation proceeding in the matter of the acquisition by the city of New York of lands in Kings, Queens, and Nassau counties for water supply purposes, several owners, who were represented by the same firm of attorneys who represent the owner in the proceeding here at bar, were awarded an allowance of $10,000 over and above taxable costs and actual disbursements for witness' feesthat is, to compensate them for the expenses of counsel.
The failure to submit any allowances made in any of the proceedings in the Greater New York for the acquisition of lands for park purposes, where the lands were actually taken, is accounted for by the statement, which I assume to be correct, that the charter of that city does not provide for any such allowance in a case where the lands are actually taken and acquired by the city.
Whatever may be the custom in the counties composing the present Second judicial district, or.in any of them, it has been the practice in this county to make to the parties in condemnation proceedings only quite moderate allowances for their expenses incurred for counsel fees and expert witnesses; and I still think that the allowances here made are quite in harmony with such practice, which has been of frequent application, as within the last 25 years there have been many condemnation proceedings in this county. While, doubtless, the constitutional "just compensation" requires a fair indemnity to the owner for his necessary expenses incurred in proving the value of his land taken, as was substantially held by our Appellate Division in the recent case of Matter of Board of Rapid Transit R. R. Commissioners, 128 App. Div. 103, 126, 112 N. Y. Supp. 619, 636, I do not think that such "just