The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-28
The Art Union Case.
SUPERIOR CoURT-sPECIAL TERN.


action.
Mr. OConor counsel for the Art Union preferred that
his honor would pass udciay the chief points in the
arguments involving the legality of the institution
oincer had already pronounced the Art Union an
illegal lottery and the president and members OF the
Committee OF Management impressed with the belief
would not be decorous their part act in the
face OF that opinion until they relieved from all
doubt by different expression Of opinion from some
peten Judicial authority They consequently preferred
seek the dissolution Of the temporary Injunction
but to defer the distribution until they could have his
honors decision This being their conclusion to their
own course Of conduct counsel hoped his honor would
perceive that not necessary that the order for tenn
porary relief should be made.
Judge Duer said that he doubted very much whether
1t would be proper for him to give such opinion he
were rahed that the plaintiff had right to maintain
the action 1t could not be permitted that stranger
should ME bill for the mere purposes OF the DEFENDANT
Suppose that this bill filed by person who had
whatever real fanced in the property and that
he sought the aid Of the Court restrain the defendants
om distribution OF their property the ground that
it was in effect lottery, though the Art Union might
come into Court and request an opinion to be
eved that the Court would pronounce such opinion
If it satisfied that the plaintiff had right to main
tain the suit 1t should dismiss the bill Therefore, the
opinion that he might give in this If the parties
not properly before the Court would be extra judicial
Parties have right to make for the pur-
pose Of obtaining adjudication There were however,
some questions not argued. and he unwilling to de-
eide the points not considered.
Mr. Sandford-I have not learned what difficulty your
honor has encountered.
Judge Duer-lt can be explained in very few words
The principal object of this bill h to restrain the detrbu
lion by lot of the pictures and other articles of value
eongng to the institution; and the plaintiff cannot, in
this in any other suit be entitled to injunction
except ii appears the face of the complaint that he
has some personal right interest which would be pru
diced by the distribution. You aegc that the plaintiff
this interest in the property by having OBJ
tanned an assignment Of original subscription and
this superstition that such right of property exists he
may be prejudced in degree by the sale Of the
pictures On that ground alone Is perfectly clear that
the plaintiff such assignee has personal interest in
these pictures and no right OF property that could be
affected by the supposed illegal which he endcavors to
restrain The injunction must therefore Of course be
dissolved. i should have great difficulty in saying on
the originally presented that the plaintiff has any
interest whatever In this property for waving the obc
confined to subscribers waving the objection that the
shares not made transferable by the terms of the
stituton and that therefore the plaintiff has acquired
right OF property by the these OBJ
jections, and considering the plaintiff original sub
scriber it may be still be doubted whether original
distributed lie pays five dollars as an annual sub
scrpton and his interest at the end of the year
portion OF the property except he may be the foru
nate drawer Of prize But if the lottery do not take
place and if the distribution DO not made the pictures
remain the property of the Art Union Thoy tho
property of the corporation, strictly King, and
individual have interest in ttcm ccpt that CIV
by the terms Of the CONSTITUTE General rule,
the property Of corporation s i he corporation itself,
and not in the corporators Nov by the terms Of the
in this particular case the property in possession
of the Art Union ut its dissolution belongs those who
members OF the Society at that time and those who
have ceased to be Subscribers have no interest in that
which is permanent property Of the corporation But
there is an unanwerabe objection founded the terms
Of the statute Plaintiff seeks to restrain the drawing
the Art Union the ground that it ia lottery and
is so it lottery plninly within the provision Of the
Revised Statutes and have hesitation in saying
that If were pressed to give judicial opinion would
found entirely the application of these provisions
If did not consider them embracing the present
should have difficulty in saying that the distrbu-
ton was an illegal lottery and therefore prepared to
that my opinion founded the provisions Of this
statute II The distribution Is not lottery within the
meaning Of this statute, then would hold it not to be
lottery prohibited hy law But if it is lottery by this
statute, it then clear that plaintiff has personal
interest in The property because the 3st section declares
that a property offered for sale distribution dis
position against the provisions Of law shall be forfeited
termination Of tho Chance which was depend
ant And shall be the duty Of the District Attorney
pety forfeited and to maintain the proper actions for the
same after dc mand made and to the proceeds of the
sale Of such property and any that may be col
eced in such suit int the county treasury the
benefit Of the poor" The consequence therefore IT, that
If this property unawfuly offered for distribution on
the ground that 1t IS lottery the title not only of the
corporation but Of each individual corporaor has
Invested and the right to it belongs, at this moment
the people Of the State and the motion Of the District
Attorney at present is not try the question bat to
force the provisions Of tho statute II the plaintiff is
right in saying that this ir lottery then he has in
terest at all in it, and has right have an in
Junction placed on 1t than total stranger woud have
Mr. Sanford. plaintiffs counsel replied that he had
prepared what he had supposed to be conclusive
swer to these objections but the point not made
on the other side he had not Of been called
argue the matter before II was stated that il would be
conceded Mr. Bennett had all the right which Mr.
Hoe originally had and therefore he had referred
this matter in the argument but he world now address
to the court his to the two suggestions made
and which he supposed to be conclusive this question
Plaintiff Is that II this association au-
thorty to put up and dispose Of this property by
Of lottery. or rattle or by any operation OF chance.
then the act of putting up for the purpose Of such
trbution the individual act Of the managers not
of the corporation md the members be deprived
Of their right by Of the unauthorized act o.
those who are temporarily entrusted with the manage.
| ment.
Judge Ducr-How cen this be- when the feature of the
distribution is not unauthorized act but provided
in the constitution Of the society and is recognized by
| the Act eff 1874?
Mr. Sanford The Art Union is recognized as compa.
ny having constitution but it is also recognized as
company having al power 10 change their constitution
The law of 1874 merely regulating the time when
thing as to the mode q this distribution OF eors sn
particular mode laid dow then the corporation
had right to change The constitution, and in the
1877 this right is expressly declared This il the first
answer II perfectly clear and well settled that the
authorized acts OF any agents Of corporation do MOI
pose case OF putting up Of property by the owner IL the
cau'e OF forfeiture exists the rights and interest OF the
owner in the property cannot be Invested until there
adjudication It. that the Of forfeiture docs cx
ist and the District Attorney maintain any action
OF oyor rreyin or trespass for this property AMI
can only maintain action founded the statute
have legal adjudication that the Of forfeiture
its. Now thisis settled point Of law and refer your
Honor to the of he New York Fire Department
hpp reported in IL Nend 266 when il decided tina
no title vested in The state until it first adjudi
Gated that the Of forfeiture did exist The rue M
law is that till these nqusition ascertain the
existence of n defect The title cannot be diyr-tcd Take
the ofhe alien who may entitled to hold
by devise you cannot egch,a the property TIL an nau
ton is held to decide the question whether he an alien
not.
| Judge Duer-IhGt il n settled law.
Mr. Sandford-apd in this ease the principle il pr,
csely the same. The Art Union acquired this property
Tor perfectly valid purposes Their object they stated
was the promotion # art On their theory this CORPORA
ion WAC endowed with power to purchase property for
honest and legal purposes and this distribution i uer.
result OF the corporations action and of dis
posing OF tho property which, neccssa.e could not Ia,
disposed Of any other way. II this may subject thci
10 have their property forfctod but portion is that
there must BIZ judicial proceeding taken Judgment
asctraincd that the Of forfeiture exists: aud the
Judgment which should produce forfeiture must be pro
nounced before the title of the members he affected
II this he So whatever rights the people Of the state of
New York may have to proceed against this Property.
That does not affect The rights of the parties who are in
trested in the property 10 prevent the unlawful strbu
ton being made IL not certain that the people will
prevent the distribution taking place and that the share