Covey v. Town of Somers

PETITIONER:Covey
RESPONDENT:Town of Somers
LOCATION:

DOCKET NO.: 380
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Mar 29, 1956
DECIDED: May 07, 1956

Facts of the case

Question

  • Oral Argument – March 29, 1956 (Part 1)
  • Audio Transcription for Oral Argument – March 29, 1956 (Part 1) in Covey v. Town of Somers

    Audio Transcription for Oral Argument – March 29, 1956 (Part 2) in Covey v. Town of Somers

    Earl Warren:

    Mr. Koegel —

    Otto E. Koegel:

    May it please the Court.

    I have heard it said many times that hard cases make bad law, it might make bad law and I hasten therefore to make this as least hard as my powers will avail.

    There is more than a fake suggestion here that there has been callous indifference on the part of the appellee municipality toward the plight of the incompetent whose affairs are now in the hands of a committee.

    In New York, we say committee.

    If I mispronounced that word, it’s because of my earlier education in Washington where they call it committee, I believe still.

    I would like to dispel emphatically any such notion and as quickly as I can.

    I’ll take just a minute to plea.

    I’d like to discuss, sir, but very briefly the municipality and its geography.

    Somers is a township called “Towns of New York State,” organized in 1788.

    It comprises approximately 26,000 acres and some points are eight miles distance — distant from others.

    It is not a homogenous community.

    A considerable portion of its population is to be found in so-called Somer developments, housing families from New York City.

    Generally, they are adjacent to lakes, privately owned by the property owners associations.

    One of several in the community is Lake Purdy, where the property of Nora Brainard, the incompetent here, is situated.

    Another is Lake Shenorock, where Mr. King lives, five miles distant.

    I have a country home in Hamlet called Granite Springs, seven miles distant from Lake Purdy.

    Another community is Lake Lincolndale in the north-central portion of the town.

    South Somers is seven miles distant from Lake Purdy’s and that is where Mr. Chambers lived.

    The town is bisected with lakes belonging to the water supply of New York City.

    It takes more than the equivalent time per mile to get from place to place as it would say in Arizona or California.

    The town house or seat of government is two miles from Lake Purdy in a building known as the Elephant Hotel, built by Bailey of circus fame to commemorate an elephant he brought into this country.

    None of the elected officials from the Town of Somers come from Lake Purdy.

    The first attorney for the town in this litigation, Mr. Stanley Anderson, has never lived in the town.

    At the time of his employment, he lived at Katonah in the Town of Bedford adjoining, which was the home and place where he died of — the first Chief Justice of this great Court.

    Also living in Katonah in another township is Mr. Covey, the Committee.

    He is a lawyer too of this incompetent.

    As I have said there is no elected official, public official in the Somers Government from Lake Purdy.

    Now, this is not to suggest that Somers official then do not know people in Lake Purdy, they most certainly do.

    But everybody’s — everyone’s business is not every other person’s business in a far flung township as would be the case in a small more closely confined rural town.

    Otto E. Koegel:

    Appellant states at the outset in his brief that the facts are undisputed.

    He is more or less justified in that because we have not come to grips with it and I should much prefer to see this case decided on the applicable principles of law rather than upon a narrow factual issue which he says doesn’t exist.

    He says the facts are undisputed because no affidavits were submitted and no proof produced controverting statements made by the appellant, Mr. Covey, the Committee of Nora Brainard and the affidavit of the counselor Mr. King.

    These were moving affidavits in support of an application for — in order to show cause and a stay addressed to the County Court, County Court under the foreclosure in rem statute being the Court vested with jurisdiction over those foreclosures except in New York County where there is no County Court and in which case it is the Supreme Court of the State.

    I will demonstrate I hope that there was a completely improper procedure.

    The correct one being the filing of a plenary action to set aside the judgment of foreclosure together with the filing of a lis pendens which the statute specifically refers to and makes — required in the county clerk’s office, that was not done either.

    Now, if I may take up very hurriedly these affidavits and I’ll accept them at their face value.

    We’ll see how much value they have on their face.

    The King affidavit, from investigation made by me and from conversations have —

    Earl Warren:

    Where — where is this to be found, Mr. —

    Otto E. Koegel:

    I’m so sorry, Mr. Chief Justice, at this mark too.

    The King affidavit is on page — what is it, 9?

    4 and 5 —

    Earl Warren:

    Yes.

    Otto E. Koegel:

    — of the transcript of record.

    From investigation made by me and from conversations had — had with the duly elected officials in the Town of Somers, not merely any of them or the purport or substance of the conversation, much less detailed and narrative, I am of the opinion that the said Nora Brainard was and has been incompetent for more than 15 years.

    If that isn’t conclusory, I — I don’t know what is.

    I had been advised that more than two years ago efforts were made by one of the justices of the peace of the Town of Somers.

    I’m not saying which one or what advice he got to have her committed to Grasslands Hospital, a state hospital for mental defectives, by reason of her mental condition.

    I’ve been further advised that on many occasions, the state police were called to abate the nuisances committed by the said Nora Brainard.

    It would have been helpful if some slight specification were had in that respect.

    In the King affidavit, this is also recited that Mr. King is the attorney for Harry B. Brainard which he goes on to — whom he goes on to describe also as the husband and sole surviving heir at law of the said Nora Brainard.

    Now, the living could have an heir at law but that’s what he says, the said Harry Brainard being a non-resident of the State of New York.

    So, she was living alone by the very necessary implication — conclusion of this affidavit.

    Now, the affidavit of Mr. Covey, the Committee on the subject of the competency of Nora Brainard and with respect to an answer to — previous to her commitment says only the following, “Upon information and belief, the said Nora Brainard was incompetent, although not adjudged for many years passed and was known to the citizens of the Town of Somers in which she resided and to the officials of the town as a person without mental capacity to handle her affairs and unable to — and understand the meaning of the notices served personally upon her by mail or by publication.”

    Now, even allowing face value, as I indicated I would to this — as evident, I submitted, does not amount too much.

    It is true that it was not denied in answering affidavit for the reason that no answering affidavit was required.

    An oral return was made by the first counsel in this series that appeared here for the town.

    I’m number three.

    He made his conveyance, sir, and a country real estate lawyer.

    Otto E. Koegel:

    He made an oral submission — appearance to return on the return date in White Plains of this order to show cause.

    He submitted a brief memorandum of law after the manner in which I would consider a common law lawyer would say a demurrer ore tenus to the order.

    The County Court, enable judge —

    Stanley Reed:

    Does that appear in the record?

    Otto E. Koegel:

    Sir?

    Stanley Reed:

    Does that appear in the record?

    Otto E. Koegel:

    The memorandum of law?

    Stanley Reed:

    No, the — I thought you said he filed some sort of —

    Otto E. Koegel:

    No, I said what a common law — he appeared orally I say and what a common lawyer would say would be tantamount to a demurrer ore tenus, where you appear orally and object to the legal sufficiency or inadequacy of the pleading or whatever the demurrer is in oppose to.

    The —

    Stanley Reed:

    Under New York practice, he didn’t have to file this?

    Otto E. Koegel:

    He did not have to file an answering affidavit.

    No, Your Honor, he did not and he did not.

    Stanley Reed:

    Nor — nor a demurrer?

    Otto E. Koegel:

    No and he did not.

    (Voice Overlap) —

    Stanley Reed:

    Or in the evidence?

    No — no motion of any kind?

    Otto E. Koegel:

    No motion of any kind.

    All he had to do is to make a return which he did.

    He made the return in person and filed a memorandum of law.

    Stanley Reed:

    What is a return?

    I don’t know what that means.

    Otto E. Koegel:

    On the return day, you do whatever the order to show cause directs you to do.

    Return with whatever documents you are suppose to hand up.

    Whatever explanation you are to make or to do whatever you —

    Stanley Reed:

    You have to do in writing.

    Otto E. Koegel:

    Not necessarily, no.

    It’s — the show cause explained why you have done so and so.

    You don’t have to explain it in advance.

    Otto E. Koegel:

    You can show up on the return day and if you can satisfy the Court that your explanation is a good one.

    That is a return.

    Whether that — whether —

    Earl Warren:

    (Voice Overlap) —

    Otto E. Koegel:

    — I am completely right or completely wrong about that that is what happened.

    Earl Warren:

    All right.

    Otto E. Koegel:

    And I state this —

    Earl Warren:

    But did he present any —

    Otto E. Koegel:

    I’m sorry.

    Earl Warren:

    — testimony of any kind to counteract this affidavit?

    Otto E. Koegel:

    No, there were — no, Your Honor.

    If —

    Earl Warren:

    He just ignored them?

    Otto E. Koegel:

    The — the answer to that is we just ignored them.

    That is correct, sir.

    Felix Frankfurter:

    No pleadings on than these affidavits?

    Otto E. Koegel:

    No pleadings other than these affidavits whatever.

    That is correct.

    And the —

    Stanley Reed:

    Well, what surprise me that none is necessary as I understand you to say.

    Otto E. Koegel:

    That’s my view that none is necessary.

    I think it’s beside the point in this case nothing was filed in any case in the town — municipality, it is not to be stopped by the negligence of its officialdom.

    They did the best they could and they did what thought — they thought wouldn’t be improper.

    I happened to think it was not improper.

    I would have done it.

    I would have filed the affidavits strongly resenting if I felt so disposed to do, the implications of this hearsay and broad conclusory sworn status but none — no — no issue whatever was tendered on those statements in writing, none whatever.

    I think the brief of the appellant stretches things a little too far, when on page 5 it suggests that the town attorney, that was Mr. Anderson.

    He was the counsel for the town.

    The town doesn’t have an official called town attorney.

    The New York State law provides for one but that town has not.

    Otto E. Koegel:

    As the counsel for the town especially engaged in this foreclosure work, they begin, Mr. — the town attorney who applied for the order appointing Mr. Covey special guardian under the Soldiers and Sailors Relief Act.

    They say, “Why didn’t he, since he was so mindful of that, suggest that he should do something with respect to one who he knew to be incompetent?”

    Well, there’s no real proof that he knew anyone to be incompetent.

    All he had before him was the — were the two affidavits with the conclusory averments.

    The Soldiers and Sailors Relief Act provides that to the extent of any adverse effect upon anyone in the armed forces and that even goes into the — carries into the foreclosure in rem statute of New York.

    A safeguard must be had and that is a special guardian must be appointed to inquire whether any armed forces personnel would be affected by any of these indicated names in the foreclosure proceedings.

    Nora Brainard’s name was one of the defendant’s name, perforce the — Mr. Covey, the same man later appointed Committee here, appointed their special guardian.

    He came up with the obvious answer, the correct one that no soldier or sailor or marine had an interest affected and therefore he stipulated by order that there were no such — the implications of that Act and the foreclosure was allowed to proceed on its way.

    But they suggest from this legal factual record here that the town attorney, that’s Mr. Anderson, that he was lax, having been so alert on that Soldiers and Sailors Relief Act not to have seen to it that this woman, obviously, incompetent should have had a Committee appointed for her.

    I say that that is hardly fair to deduce such an obligation on him from the meagerness of this testimony but I — I don’t want this case to rest on that at all.

    The only reason I have advanced this is because it was suggested, I think, by Mr. Justice Burton that just what is the extent of the evidence here, from just what do they draw the conclusions that the town knew.

    Because if the town did know that becomes certainly, in my book, immoral consideration that a proper government should take account of.

    And I have not prepared on the basis of this record to conceive that this town did something that was patently immoral.

    Now, then I’m going to use some of my time with the Court’s permission, I believe the clerk has already suggested to the Court that permission would be asked to let the Attorney General of New York to have some of my time.

    I would like to have him have 10 minutes of my time and I will use only of the balance.

    How many minutes have I — about 12?

    Earl Warren:

    I would like to ask this question.

    When you started your — your argument, your first statement as I recall it was that you’re going to demonstrate to the Court that this was not harsh or oppressive action on the part of this — this town against this incompetent?

    Otto E. Koegel:

    Not particularly, the —

    Earl Warren:

    Do you feel you have done that?

    Otto E. Koegel:

    I appeal that I have — I have at least — maybe I haven’t — maybe I haven’t, maybe I over — maybe I over spoke.

    What I — what I meant to say and what I — perhaps would have been more correct in saying was that I hope to point out that it wasn’t patently clear here that the town had been cruelly negligent and had been, beyond any doubt, guilty of — of complete lack of interest in this unfortunate taxpayer.

    Earl Warren:

    Well, what do you say about the fact that — to combined taxes of interest and penalties against his property was about $480 and the city put a minimum price of $6500 on the property and would not consider the payment of the tax or any proceeding that would result in wiping it out for —

    Otto E. Koegel:

    That —

    Earl Warren:

    — a payment?

    Otto E. Koegel:

    That why I said and counsel, I’m sure, inadvertently failed to state because his brief goes on hurriedly to state that the town immediately cut that figure in half.

    I’m not saying that’s enough either but the town did cut that $6500 figure down to $3500, am I not right?

    Now, they — they admit that.

    So, it was —

    Earl Warren:

    Well, let’s say 35.

    Otto E. Koegel:

    Let’s say 35, yes.

    Earl Warren:

    The thing you want.

    Otto E. Koegel:

    It’s still a good many times $400 —

    Earl Warren:

    Where is?

    Otto E. Koegel:

    — are granted — granted–granted.

    But we — we are faced here with more than what seems to be the proper arithmetic to apply, town vis-a-vis taxpayer in arrears.

    We are faced here so it seems to me with whether we have a statute that is simple, workable, has built into a due process and whether or not we have denied due process to the taxpayer incompetent in this case.

    And I’d like to take just one or two minutes to demonstrate to my satisfaction at any rate that we have not.

    Hugo L. Black:

    Do you think that she has no remedy here that she has another remedy that could be utilized to —

    Otto E. Koegel:

    I think she had a remedy.

    I think she had a remedy during the two years.

    This is her title as counsel on the other side has pointed out.

    The title that — as had in the first instance in this 165 — Section 165 proceeding is a presumptive title only and for two years thereafter, it takes four years of tax arrears in the first place to bring about one of these titles, four years and seven weeks.

    And then after that it’s — it is presumptive for two years only and during that two years, they have a right to litigate whatever relevant facts and circumstances there — there are that would tend to title them to relief.

    I don’t think they were entitled any relief —

    Stanley Reed:

    Well, then they have a right to come in and pay the tax during that two years?

    Otto E. Koegel:

    They have the right to come in and pay the tax?

    Stanley Reed:

    (Voice Overlap) —

    Otto E. Koegel:

    No — no, they don’t have the right to come in and pay the tax.

    They have the right to come in and say an error was made that they got the wrong property and that has happened.

    That the property was mistakenly over assessed, being mixed up with another property or something like that.

    Felix Frankfurter:

    Well, would —

    Stanley Reed:

    If you’re correct —

    Felix Frankfurter:

    Would — wouldn’t be (Inaudible)

    Stanley Reed:

    If you’re correct that — that the notice of this property and so forth, they would to have no grounds to set it aside as I understand you.

    Otto E. Koegel:

    That is right.

    As it may it seem harsh —

    Stanley Reed:

    (Voice Overlap)

    sole that was the end of it.

    Otto E. Koegel:

    I think that’s the end of it.

    Otto E. Koegel:

    That may be summum jus but I think we have some of that in the law whether we like it or not, statute of limitations inherently have those things built in them and I don’t think that we can —

    Felix Frankfurter:

    What if — what — what kind of play in this case, the references to the circumstances of this case could have been made within the two-year period in addition to the four years in (Inaudible)

    What kind of claim in the facts — under the facts of this case which she had pressed within the two-year period, any?

    Otto E. Koegel:

    Well, if she had brought a plenary action to set this aside on the ground of mistake —

    Felix Frankfurter:

    With this case, let’s —

    Otto E. Koegel:

    Well, I can’t think —

    Felix Frankfurter:

    — speculate it.

    Otto E. Koegel:

    Well, you —

    Felix Frankfurter:

    With this case, would the fact that Judge (Inaudible) thought — presented —

    Otto E. Koegel:

    There —

    Felix Frankfurter:

    — the case for equitable relief, would that have been available in the plenary proof or this would give (Voice Overlap) —

    Otto E. Koegel:

    Off hand, I can’t think of any.

    Felix Frankfurter:

    Pardon me?

    Otto E. Koegel:

    Off hand, I can think of none.

    Felix Frankfurter:

    So, then he claims he had two more years in which to do something.

    It’s pointless to this case.

    Otto E. Koegel:

    Well, it might be pointless in this case.

    Felix Frankfurter:

    Well, if —

    Otto E. Koegel:

    That’s right.

    Felix Frankfurter:

    — but there might — there might be —

    Otto E. Koegel:

    But —

    Felix Frankfurter:

    — a premise whether they’ll (Voice Overlap) —

    Otto E. Koegel:

    Well, it might —

    Felix Frankfurter:

    — or not —

    Otto E. Koegel:

    That would.

    Felix Frankfurter:

    — and therefore you have turned — therefore — now, you could say there was a remedy when there wasn’t.

    Otto E. Koegel:

    Well, I’m not — I’m not at all together sure that had they brought a plenary action here and justiciated this alleged competency that they might not have found another answer to it.

    Felix Frankfurter:

    That — that’s the importance.

    Otto E. Koegel:

    It is.

    It may have been.

    Earl Warren:

    But you don’t believe she could’ve?

    Otto E. Koegel:

    Well, I have to be perfectly candid about it, I doubt it.

    Earl Warren:

    And you don’t believe she could have shown —

    Otto E. Koegel:

    I’ve got a client here.

    I don’t want to concede something I shouldn’t.

    I doubt it.

    Earl Warren:

    And you don’t believe that she could have shown that the officials of the town knew of her incompetency?

    Otto E. Koegel:

    I am so satisfied with that.

    There isn’t any doubt whatever in my mind, yes.

    Felix Frankfurter:

    Satisfied of what?

    Otto E. Koegel:

    To think she couldn’t have foreshown known incompetency on the part of the town officialdom, to an — a degree of proof that would satisfy a tribunal.

    Felix Frankfurter:

    Well, at no time could she have shown that?

    Otto E. Koegel:

    Oh, she could have shown it there of no time anterior to the foreclosure, effective in this, of the foreclosure.

    Felix Frankfurter:

    And at the — during any part of that period —

    Otto E. Koegel:

    That’s my view.

    Felix Frankfurter:

    (Voice Overlap) period —

    Otto E. Koegel:

    That’s my answer.

    Felix Frankfurter:

    (Voice Overlap) to foreclosure.

    Could she have any legal representative who could have made that choice, that affidavit?

    Otto E. Koegel:

    She — yes.

    That’s — I’m awfully glad you asked that.

    I’m going to yield to my esteemed friend, the Assistant Attorney General of New York, he’ll have no time.

    The — she had a Committee appointed and serving during most of this two-year period and all he did was litigate the effect of the denial by the County Court of this motion which County Court had pointed out to him, “You are on the wrong track.

    Get on the right one.”

    Felix Frankfurter:

    Well, I’m — I’m — you confuse me.

    Otto E. Koegel:

    I’m sorry.

    Felix Frankfurter:

    I thought the two-year period is the two-year period we’ve been talking about for the last ten — five minutes?

    Otto E. Koegel:

    Yes, we are.

    Felix Frankfurter:

    And as I understood you to say with — the candor required of counsel, one, to save — not having to protect his client.

    As I understood you to say that if — speaking as a lawyer —

    Otto E. Koegel:

    Yes, sir.

    Felix Frankfurter:

    — you thought that that issue she couldn’t have contested.

    Otto E. Koegel:

    She couldn’t have successfully contested.

    Felix Frankfurter:

    What if you can’t contest with the (Voice Overlap) —

    Otto E. Koegel:

    That’s right.

    Felix Frankfurter:

    — you can’t contest it.

    That’s (Voice Overlap) —

    Otto E. Koegel:

    She wouldn’t be any farther alarmed —

    Felix Frankfurter:

    What I —

    Otto E. Koegel:

    — than she is now.

    Felix Frankfurter:

    — wanted to know — my question to you was (Inaudible)

    Otto E. Koegel:

    I am.

    Felix Frankfurter:

    Well, my question was, was there anytime before the foreclosure because according to your view there was no time thereafter.

    Was there any hearing, anytime when she had legal representative who could have raised this question of knowledge by the town of her incompetence and therefore unfair and they can call it (Voice Overlap) —

    Otto E. Koegel:

    I think I understand your question.

    My answer to that is no.

    Felix Frankfurter:

    It wasn’t at the time?

    Otto E. Koegel:

    No.

    Felix Frankfurter:

    All right.

    Otto E. Koegel:

    May I yield —

    Earl Warren:

    You may.

    Otto E. Koegel:

    (Voice Overlap) —

    Earl Warren:

    Yes, you may.

    Mr. Davison.

    John R. Davison:

    May it please the Court.

    The State of New York is here on defense of its tax statute.

    Now, desired judgment in reading the opinions in this case that the courts of New York have determined that the appellant could not challenge the regularity of this foreclosure proceeding by a motion in the action, in the in rem action, but have to bring a separate action which is specifically provided for by the New York statute.

    (Inaudible)

    John R. Davison:

    Pardon me?

    (Inaudible)

    John R. Davison:

    Your Honor, there is no opinion in the Court of Appeals as an official opinion of the Court itself.

    However, there is a memorandum of affirmance which is prepared by the state reporter which is reported in 308 New York 798.

    That memorandum of — of affirmance, while drawn by the reporter, is so drawn as to suggest the counsel the basis of the Court’s — the determination in that action.

    And if you will examine that, I think you will be convinced that the basis of the Court of Appeals’ decision in this case was the third ground raised by the respondent in the Court of Appeals.

    Specifically, that the — the deed delivered pursuant to a judgment in an in rem proceeding may only be set aside in the manner provided by a statute, namely, by an action to set aside the deed and the filing of a notice of pendency thereof in the office of the county clerk.

    (Inaudible)

    John R. Davison:

    Yes, Your Honor.

    It’s 308 New York 798.

    Hugo L. Black:

    You do not —

    John R. Davison:

    Oh, I would add just one thought.

    I am not saying anything out of school when I say this, but those memorandum of affirmance are approved by the Court of Appeals before they are appended.

    Hugo L. Black:

    Is that quoted in your brief?

    John R. Davison:

    The memorandum of affirmance is not quoted in my brief, Your Honor, but it is officially reported in 308 New York at page 798 and it’s cited in my brief.

    Felix Frankfurter:

    And now, will you state —

    Earl Warren:

    (Voice Overlap) —

    Felix Frankfurter:

    I beg you pardon.

    Earl Warren:

    No, go ahead.

    Felix Frankfurter:

    Will you please state what that means assuming we accept your statement that — I mean, we accept your statement without (Inaudible) that the affirmance can be — is attributable to use, the third ground that was urged.

    Now, what does that mean with reference to the Due Process Clause?

    John R. Davison:

    So far as I am concerned, that Statute provides the due process and the due process was not followed here.

    Felix Frankfurter:

    Now, spell that out if you mind.

    John R. Davison:

    The — yes.

    The statute provides that a separate action could be brought.

    Hugo L. Black:

    Is that quoted in your brief?

    John R. Davison:

    Yes.

    The — this statute is quoted in my brief.

    Hugo L. Black:

    Page what?

    John R. Davison:

    At page 6.

    I have in fact quoted the entire statute but the relevant portions are quoted in the paragraph before the statement.

    Hugo L. Black:

    Paragraph where?

    John R. Davison:

    “The — the giving of the deed, avowing the judgement of foreclosure, constitutes presumptive evidence under the statute that all action and proceedings therein almost required by law have been complied with.”

    Then the statute goes on, “The — after two dear years from the date of record of the deed, the presumption becomes conclusive and then it provides no action to set aside such deed may be maintained unless the action is commenced and the notice of pendency of the action is filed in the office of the proper county clerk.”

    Now —

    Hugo L. Black:

    Well, that’s —

    John R. Davison:

    I submit —

    Hugo L. Black:

    That’s an action to set aside the deed?

    John R. Davison:

    That’s — that’s right and that is —

    Hugo L. Black:

    (Voice Overlap) —

    John R. Davison:

    — the specific —

    Hugo L. Black:

    — to say that — where does that say you cannot proceed by the kind of motion that was made here?

    John R. Davison:

    I — I say that under the decision of the County Court here, under the memorandum of affirmance, as you will see it of the Court of Appeals, the — this Court has decided — that Court has decided in this case that the only method of proceeding is by a separate action under this subdivision 7.

    Hugo L. Black:

    What — what ground could she get that set aside on?

    John R. Davison:

    I — I submit that she — if she came in by a separate action and prove that at the time the foreclosure proceeding was brought, the officials who were bringing the proceeding knew that she was incompetent and thus prove that dereliction and duty on their part that she could get all the relief she’s seeking here.

    Felix Frankfurter:

    And now, you speak of course of the Attorney General of the State but in addition to the weight of that properly carried, is there any — is there any ruling in a New York court that you could vouch with that — that statement of law, namely, that the proceeding under Section 7 155-h ruled over the question whether the foreclosure was made in the place of an incompetent, knows to be an incompetent, whereabouts known are they (Inaudible) is there any — have you got any reference wherein a New York case would support your statement in so reading that remedy?

    John R. Davison:

    I have no New York case, but as I read your decision and I believe it was the Ballard case which is — is cited — or cited in our brief.

    In order to have due process, you cannot have a dereliction of duty or the running out of a statute of limitations or as was here by virtue of some fraud on the part of a public official, that wouldn’t be due process of law.

    And as I — I have no case.

    Felix Frankfurter:

    What you’re saying is that if to do what was done by the town people under the claim here made that they foreclosed — for tax the imposed on a piece of property which must broaden the taxes with knowledge that the property was owned by an incompetent, with knowledge of the whereabouts concerning it, that to do so would imply one a due process and therefore the legislation must be read otherwise.

    Is that what you’re arguing that it must — but it must be implied from the relief that such yourself could give that that issue would be over (Voice Overlap) —

    John R. Davison:

    That — yes, sir, exactly.

    Felix Frankfurter:

    That’s what you’re arguing?

    John R. Davison:

    Exactly.

    Thank you.