law. It was void, but solely by force of the partnership statute. It was not a fraud at common law, under which preferential payments by an insolvent debtor are permitted. The transaction could be set aside for the benefit of the body of creditors of Kugelmann & Co., because the statute of Maryland declared it to be void, and Vasquez, by assenting to the transfer in violation of the act, may have subjected himself to liability as a general partner. But to authorize an attachment under subdivision 2 of section 636 of the Code, there must be actual or intended fraud upon creditors; such fraud as was contemplated by the statute of Elizabeth, and similar statutes. The violation of the Limited Partnership Act by the preferential payment of an honest debt does not show that the debtor has "assigned, disposed of or secreted his property" with intent to defraud his creditors, within the attachment law.

The orders of the General and Special Terms should be reversed and the attachment vacated, with costs.

All concur.

Orders reversed.

In the Matter of the Application of THE BOARD OF RAPID TRANSIT RAILROAD COMMISSIONERS for the City of New York, Appellant, for the Appointment of Commissioners,

etc.

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營

STREET RAILROADS — APPLICATION FOR COMMISSIONERS-JURISDICTION OF GENERAL TERM CONSTITUTION OF 1894. The provision of section 18 of article 3 of the State Constitution of 1894, that when the consent of property owners to the construction of a street railroad cannot be obtained, "the Appellate Division of the Supreme Court may, upon application, appoint three commissioners," was not intended to take effect on January 1, 1895 (Art. 15, § 1), but is intended to take effect on January 1, 1896, when the creation of the Appellate Division goes into effect (Art. 6, § 2), and until the latter date the General Terms of the Supreme Court continue to have the jurisdiction heretofore possessed by them to entertain such applications.

(Argued October 16, 1895; decided October 22, 1895.)

APPEAL from order of the General Term of the Supreme Court in the first judicial department made October 7, 1895. The nature of the proceeding and the facts, so far as material, are stated in the opinion.

Edward M. Shepard for the Board of Rapid Transit Railroad Commissioners, appellant. The order is appealable to this court. It was made in a special proceeding; it was a final order; it determined the entire proceeding and affected a substantial right. (Code Civ. Pro. § 190; Reed v. Mayor, etc., 97 N. Y. 620; Noyes v. C. A. Soc., 3 Abb. [N. S.] 36; E. L. A. Soc. v. Stevens, 63 N. Y. 341; Tilton v. Beecher, 59 N. Y. 176; Laning v. N. Y. C. R. R. Co., 49 N. Y. 521; R. & S. R. R. Co. v. Davis, 43 N. Y. 137; In re Graduates, 11 Abb. Pr. 301; In re Beggs, 67 N. Y. 120.) The General Term had jurisdiction of the application to appoint commissioners. (Const. N. Y. art. 3, § 18; art. 6, § 1, 2, 5, 6, 9; art. 15, § 1; Laws of 1895, chap. 529, § 59.) If the conclusion of the court below be right, then either the Appellate Division has been in existence in the first department since the designation in April last, of the justices to compose it, and in the other three departments since the designations made recently, or the Constitution of 1894 absolutely suspended for the year 1895, but for no other time, the power lawfully to construct street railroads without the consent of a majority of property owners, except where the consent of the General Term had been given prior to 1st of January, 1895. (Const. N. Y. art. 3, § 18; art. 6, §§ 2, 9, 12; People ex rel. v. Fitch, 145 N. Y. 261; People ex rel. v. Lorillard, 135 N. Y. 285.) Where public mischief or great inconvenience or absurdity will result from a particular construction, that construction is to be avoided unless the meaning of the makers of the Constitution be plain. (People ex rel. v. Potter, 47 N. Y. 375; In re N. Y. D. R. Co., 42 Hun, 621, 625; 107 N. Y. 42; People ex rel. v. Angle, 109 N. Y. 564, 568; People ex rel. v. Lorillard, 135 N. Y. 285.)

Opinion of the Court, per PECKHAM, J.

[Vol. 147.

PECKHAM, J. This is an appeal from an order of the General Term of the Supreme Court of the first department, refusing to entertain the application of the rapid transit commissioners for the designation of newspapers in which to publish notices of their intention to apply to the court for the appointment of commissioners to report after due hearing whether a railroad ought to be constructed, etc. The appeal is somewhat anomalous, as there is no adverse interest and no respondent before us. The rapid transit commissioners are desirous of proceeding with the discharge of their duties under chapter 4 of the Laws of 1891, as amended by chapter 519 of the Laws of 1895. They state in their application that they have adopted routes for the proposed road in the city of New York, and they claim to have complied with all the provisions of the acts above mentioned, but they allege they cannot obtain the requisite consents of the property owners along the line, and hence the necessity for an application to the court.

We are without the benefit which we always derive from an opinion of the learned court making this order, giving the reasons for its action, but, as we understand it, the court refused to entertain the application, because of its doubt whether it had jurisdiction to act upon it, such doubt being founded upon the adoption of and the provisions in the new Constitution. The argument is, that article 3 of the Constitution took effect by the express terms of that instrument on the first day of January, 1895 (Art. 15, sec. 1), and as section 18 of article 3 provides that an application of this nature shall be made to the Appellate Division of the Supreme Court, the General Term had no jurisdiction to entertain it. Referring to section 2 of article 6 of the Constitution, it is there seen that the Appellate Division does not come into existence, so as to exercise judicial functions, until January 1, 1896, and the consequence is stated that there is no court now in existence to which this application can be made, and the commissioners must wait until January 1, 1896, before attempting to proceed further. The wording of the instrument in regard to the sub

N. Y. Rep.] Opinion of the Court, per PECKHAM, J.

ject under discussion is such as to render a doubt as to its proper construction at least plausible, and we think the learned court was, therefore, as matter of sound policy, amply justified in refusing to entertain the application until the question should be laid at rest, because, if the court had acted and proceedings were taken which might subsequently be reviewed and reversed as unwarranted by reason of the lack of jurisdiction in the General Term, a most unfortunate state of affairs would have been created. The legal question being now presented by this appeal, whether the General Term has jurisdiction to entertain such an application during the year 1895, we have come to the conclusion that it has.

In stating our reasons for this determination, it is somewhat material to note the history of the constitutional provision directing application to be made, under certain circumstances, to the Appellate Division of the Supreme Court. It is quite brief. Prior to 1874 no provision for an application to any court existed. One of the amendments to the Constitution of 1846, adopted by the people in 1874 and taking effect on the first day of January, 1875, added several sections to art. 3, and the following is a copy of the last portion of section 18, which was among the sections so added:

"The legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws. But no law shall authorize the construction and operation of a street railroad except upon the condition that the consent of the owners of one-half in value the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained, or in case the consent of such property owners cannot be obtained, the General Term of the Supreme Court, in the district in which it is proposed to be constructed, may, upon application, appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, con

Opinion of the Court, per PECKHAM, J.

[Vol. 147.

firmed by the court, may be taken in lieu of the consent of the property owners."

This provision regarding the building of street railroads had continued as part of the Constitution ever since its incorporation into that instrument in 1875, and of course was in full force in 1891 when the Rapid Transit Act, chapter 4 of the laws of that year, was passed. It was in force at the time when the new Constitution of 1894 was in process of formation by the constitutional convention of that year. Section 18 of article 3 of the new Constitution is almost word for word identical with the same section in the third article of the former Constitution, excepting that in the portion relating to railroads it substitutes the phrase "the Appellate Division of the Supreme Court in the department," for that of "the General Term of the Supreme Court in the district," so that the application is by this provision to be made to the Appellate Division for the appointment of commissioners. The reason for this change in the phraseology is plain. It was simply to conform to the provisions of another article in the new Constitution providing for an Appellate Division of the Supreme Court to go into operation Jan. 1, 1896. Upon a reference to article 6 it will be seen that while the Supreme Court is continued with general jurisdiction in law and equity, the second section of that article provides for the creation of what is therein termed an Appellate Division of the Supreme Court, and the section provides that "from and after the last day of December, 1895, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms * * and such additional juris

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diction as may be conferred by the legislature." The effect of this provision is to abolish the General Terms of the Supreme Court after the last day of December, 1895, and to substitute in their place what is termed an Appellate Division of the same court with precisely the same jurisdiction, and such additional as might be granted by the legislature.

In the meantime, however, the General Terms exist with all their jurisdiction unimpaired, unless, by the wording of that