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    Devin v. Patchin.
    TJpon an appeal from the decree of a surrogate on an application for letters of administration, the Supreme Court is to review the determination upon the proofs before the surrogate. It cannot receive further evidence or award an issue to be tried by jury at circuit.
    The power of the Supreme Court to award an issue is confined, it seems, to appeals from decisions admitting, or refusing to admit, a will to record or probate.
    The surrogate, in proceedings before him, may award costs to be taxed, but he has no power to make an arbitrary allowance for counsel fees; and such counsel fees as may be taxable are to be allowed to the party, and not to his counsel.

      Henry C. Patchin died in the city of Hew York, on the 17th day of July, 1857, leaving assets in that city. On the Slst of July, '1857, the appellant, -Maria F. Devin, presented . a petition to • the surrogate of the city and county of Hew York, stating that she was the testamentary guardian of George L. Patchin, a half brother of the deceased; that the deceased died intestate, leaving personal property in this State ‘ not exceeding fifteen hundred dollars in value; that he left the said George L. Patchin, .and Edward H. Patchin, Samuel G. Patchin, and Joseph 'A. Patchin, all of whom were infants, his only half brothers, and only next of kin. That said deceased left no parents, brothers or sisters, and was at or immediately previous to his death, an inhabitant of the county of Hew.York; that Mary G. Melvin claims to be the widow of the deceased, and that he left him surviving, a son named Henry 0. And the petitioner prayed that letters of administration be granted on the estate by said surrogate, to H. B. Daban, of said county.
    A .citation was issued and served on Mrs. Patchin, addressed “to Mary G. Melvin, otherwise called Sparks or Patchin, claiming to be the widow of Henry C. Patchin, late of the city of Héw York, deceased.” Mrs. Patchin appeared and contested the right of the petitioner, to letters of administration, claiming to be herself entitled to such letters as the widow of Henry 0. Patchin. There was an appearance, also, in behalf of the public administrator. Ho other parties appeared, and it is not shown that any other citation was issued.
    A very large amount of testimony was taken bearing upon the question of the marriage of Henry C. Patchin with the present respondent. On the 27th of May, 1859, the surrogate made his decree, declaring that the present respondent was not the widow of Henry 0. Patchin, deceased; that the public administrator had accounted for all’ the estate of the deceased, and discharging him from further accounting; and directing the payment, out of the assets to be thereafter realized, of the costs and counsel fees of the several parties. The decree was silent as to letters of administration.
    Mary Gr. Patchin appealed to the Supreme Court from so much of that decree as declared that she was not the widow of Henry 0. Patchin. The Supreme Court in May, 1862, reversed that pari of the surrogate’s decree which adjudged that Mary Grrace Patchin was not the widow of Henry C. Patchin, deceased, and ordered that a jury be impanneled in this action, at the next circuit court, to be held in and for the city and county of Mew York, or at a subsequent circuit court to try .the issue in the action, and to determine, the same, and that the following be the question to be determined by and before said jury, viz.:* “Was Mary Gr. Melvin, or Patchin, the lawful wife, and is she the widow, of Henry Clay Patchin, now deceased?” From this judgment, or order, Mrs. Devin appealed to this court. The case was submitted on the briefs of the counsel.

      Henry M. Hyde, for the appellant.

      Samuel E. Lyon, for the respondent.
   Selden, J.

Upon the merits, this case presents but the single question, whether the respondent was the wife of Henry C. Patchin at the time of his decease; and this depends upon the narrower question, whether said Patchin was the man, calling himself David Sparks, between whom and the respondent, the banns of matrimony were solemnized by the Rev. Wm. H. Norris, pastor of the Forsyth street M. E. church, at his dwelling house in the city of Mew York, in the evening of the 12th of Movember, 1855. The fact of such marriage of the respondent having taken place is undisputed; and after a careful examination of the testimony, I am of opinion that no serious doubt can be entertained, that the marriage was between the respondent and Henry 0. Patchin. [The learned judge here proceeded to examine the evidence at large and proceeded:]

For these reasons I am of opinion that the evidence relied upon by the appellant is wholly insufficient to overcome the positive proof of the marriage of Patehin, or to account for the apparent non-existence of any other man than him to answer to the name of David Sparks, the bridegroom of the wedding • established by that proof. The Supreme Court, therefore, very properly reversed the surrogate’s decree.

A further question arises upon the order of the court directing an issue to be made and tried at the circuit, to determine the question of the marriage. It is insisted, on the part of the appellant, that the Supreme Court was not authorized to award such issue, the case not being within the statute directing an issue on the reversal of a surrogate’s decree. (3 R. S., 5th ed., p. 151, § 73.)

Prior to the adoption of the Revised Statutes of 1830 it was held that the Court of Chancery had power to award feigned issues, in such cases, on the ground that the practice on appeals from the decrees of surrogates’ courts was according to the course of the civil law, by which new allegations and new proofs were allowed to be introduced, in the discretion of the court, in any stage of the proceedings. (Vanderheyden v. Reid, 1 Hopk., 408; Van Wyck v. Alley, id., 552.) The same course was pursued under the Revised Statutes (1 Paige, 550; 8 id., 479), and the correctness of that practice has been, to' some extent, recognized, since the reorganization of the courts, under the Constitution of 1846, and since the adoption of the Code of Procedure. (2 Bradf., 6; 9 Abb., 393.) But in the case of Caujolle v. Ferrié (23 N. Y., 90), which was an appeal from the case in 9 Abb., 393,1 am informed that this Court rejected the additional testimony taken after the appeal to the Supreme Court, holding that the decree of the surrogate could only be reviewed on the evidence produced before him. This position is stated only in the dissenting opinion in that case (p. 119), but the other members of the court are said to have concurred in that part of the opinion. That case was quite similar to the present, and must control it as to the point under consideration. If no further testimony could be received, it was improper to award.an issue which could not be tried without further testimony. Even if the power to award the issue existed, it was not proper to subject the parties to the delay and expense of such trial, in the present case, though probably this court would not attempt to control the discretion of the court below in the exercise of such power. (2 Comst., 269; 11 Wend., 234.)

The judgment of the Supreme Court, so far as it reverses the decree of the surrogate, should be affirmed; the award of an issue to try the question whether the respondent is the widow of Henry Clay Patchin, deceased, should be reversed; and it should be declared that she is such widow, and is entitled to • letters of administration upon his estate.

Balcom, J.

Ho statute has been cited by the respondent's counsel that authorized the Supreme Court to direct that the question be tried by a jury at a circuit court, whether Mary Grace Patchin, or Melvin, was the lawful wife and is the widow of Henry 0. Patchin, deceased, and I have not been able to find any that confers such authority. The only cases in which the Supreme Court is authorized by statute to direct that an issue be made up and tried by a jury at a circuit court, on appeals from the decisions of surrogates, are those by which wills have been admitted to probate or refused to be admitted to record- or probate. (2 R. S., p. 609, § 98; 3 id., 5th ed., p. 906, § 21; Laws of 1848, p. 295.)

Prior to the Revised Statutes the Court of Chancery proceeded on appeals from the decrees of surrogates according to the course of the civil law, and might hear new testimony and call to its aid the verdict of a jury, upon disputed questions of fact. (Van Derheyden v. Reid, 1 Hopk. Ch. R., 408; Scribner v. Williams, 1 Paige, 550.) And without noticing the change in the proceedings in surrogates’ courts and on appeals therefrom, effected by the Revised Statutes, the chancellor entertained a motion in Case v. Towle (8 Paige, 479), to permit the appellant, in an appeal from a surrogate’s decision, to produce further proof, but denied the application for leave to do so. And it appears that the Supreme Court in Caujolle v. Ferrié (9 Abb., 393), held, on an appeal from the decree of the surrogate, by which Ferrie was adjudged to be the legitimate son of the decedent, and entitled to letters of administration, that the appellate court might receive newly discovered evidence in addition to the evidence which was béfore the surrogate. But when the case, was decided by this court, that question was not passed upon. Denio, J., however, remarked (23 N. Y., 119,) as follows: I have not thought it proper to consider the evidence upon this point, contained in the additional testimony produced by the appellant to the Supreme Court, while this cáse was pending there upon appeal, being of opinion that it can only be reviewed upon the proofs which were before the surrogate.”

The case of The New Orleans Gas Light and Banking Company v. Dudley (8 Paige, 452), is cited by the respondent’s counsel to show that the Supreme Court properly directed that the question of fact in this case be tried at a circuit court. But the decision of the chancellor in that case is no authority for that made by the Supreme Court in this. That case was brought before the chancellor by an - appeal from the decision of a vice-chancellor, and he dismissed the appeal, so far as it relates to Mrs. Dudley, but with liberty to her to apply to. the vice-chancellor for an issue to try the question of usury set up in her answer. He acted in that case strictly as an appellate j udge, and did not retain the case and direct an issue to be made up for trial at a circuit court as the Supreme Court did in this.

. I am not aware that the question was ever raised before the chancellor, whether the provisions of the Revised Statutes respecting appeals from the decrees of surrogates, had so far changed .the proceedings in such cases as to make his court strictly one of review on such appeals, and divest it of all authority to try such cases de novo. But so far as my knowledge extends, the chancellor was supposed to possess only a strictly appellate jurisdiction in such cases, subsequent to the Revised Statutes, except where a different authority was conferred upon him by the legislature.

The Supreme Court possesses only the same powers and jurisdiction on appeals from the decisions of surrogates that the Court of Chancery had; and the justices of the Supreme ■Court possess only the powers and jurisdiction that the chancellor, vice-chancellors and circuit judges had under the State Constitution of 1821 and the laws prior to the judiciary act ' of 1847. (Laws of 1847, vol. 1., p. 323, § 16; id., p. 324, § 17; 3 R. S., 5th ed., p. 277, § 1; id., p. 906, § 22, &c.)

An appeal in a case like this was never heard by a vice-chancellor; nor is such a one now heard'' by a justice of the Supreme Court, at a special term of that court. Such appeals are now heard at general terms of the Supreme Court, where, according to my.views, only an appellate jurisdiction is possessed, except in certain cases specially provided for by statute. (Laws of 1848, chap. 185, p. 295.) That court cannot sénd a case brought into it by appeal from a Surrogate’s Court, to a Circuit Court, for trial by a jury, unless there is a statute authorizing such a disposition of it, or unless that court proceeds in such cases according to the course of the civil law.

. I have previously said there is no statute conferring such authority on that court; and I am of the opinion proceedings in appeals from the decrees of surrogates are now so much controlled by statute and common law rules, that it cannot be said the Supreme Court proceeds on such appeals according to the course of the civil law.

If these conclusions are correct, the only decision the Supreme. Court had jurisdiction to.make in this case, was one either affirming the decision of the surrogate, or reversing it and directing him to make an order that Mary Grace Patchin was the lawful wife of Henry C. Patchin, deceased, and is his widow, or reversing it and directing him to rehear the case ; and that their order directing the question, whether Mary Grace Patchin, or Melvin, was the lawful wife and is the widow of the deceased, was erroneous.

I am of the opinion the evidence justified the Supreme Court, in reversing the order made by the surrogate, declaring that Mary Grace Patchin, or Melvin, was not the wife and is not the widow of Henry C. Patohin, deceased, and that this Court ought not to disturb the- decision of the Supreme Court, so far as it reverses that order. The evidence convinces me that Mary Grace Patohin was lawfully married to the deceased, and is his widow, and if my brethren concur in this conclusion, this Court will so hold

It is proper that we should notice the orders of the surrogate, in regard to the costs' of the proceedings before him. He directed that the administrator “to be appointed ” should pay out of the assets of the deceased, the gross sum of $500, to one of the counsel of Mary Grace Patchin, and the further gross sum of $150 to another of her counsel; and the gross sum of $500 to one of the counsel of Maria F. Devin, and the further gross sum of $500 to another of her counsel, besides $160.75 costs-"of the surrogate. These sums amount to $1,810.75, and the entire value of the personal estate of the deceased, as sworn to in the petition for letters of administration thereon, was only $1,500.

Where the surrogate found authority for making these orders respecting costs, is an inquiry more easily made than answered. But it ought to be made, though neither party has appealed from either of them. The counsel of each party being similarly situated in respect to the question of costs, that is to say, each having an order for a large fee to be paid out of the same fund, probably did not advise that such orders should be appealed from. But a proper regard fo^the due administration of the laws of the land requires that this Court should not permit such orders to go unnoticed. It is true that the surrogate, in contests before him, may award costs to the party in his judgment entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of the controversy. (2 R. S., 223, § 10; 3 id., 5th ed., 367, § 25.) But in all cases where he is authorized to award costs, he must tax the same at the same rates allowed for similar services in the Court of Common Pleas, in the year 1837. (3 R. S., 5th ed., p. 367, § 23; Western v. Romaine, 1 Brad., 37; Willcox v. Smith, 26 Barb., 316.) He has no authority to make an arbitrary allowance to counsel in lieu thereof. (Burtis v. Dodge, 1 Barb. Ch. R., 91; 26 Barb., 316.) Previous to the Revised Statutes, surrogates had no authority to award costs in any cáse. (5 Cow., 719; Shultz v. Pulver, 3 Paige, 182; S. C., 11 Wend., 363.) The Code confers no such authority on surrogates or surrogates’ courts. The Code is only applicable to cases arising in surrogates’ courts, after appeals have been taken to the Supreme Court. (Code, § 318; id., § 471.) .

The costs awarded in this case were directed to be paid to the counsel instead of the parties, which was erroneous (26 Barb., 316); and the sums greatly exceed (probably tenfold) any amounts .that could have been awarded, if taxed as required by statute; and it is a little singular that the surrogate should have required- the administrator of the estate of the deceased to pay the counsel of Mary G. Patchin, after he had decided she was an impostor, and not the widow of the deceased.

But I have said enough in regard to the decision of the surrogate, on the question of costs, except that neither of the counsel in the case in this Court was counsel in it before the surrogate. I hope I have shown that surrogates cannot lawfully act as almoners of the estates of deceased persons.

My conclusions are that that part of the order of the Supreme Court which directs that the question be tried by a jury, whether Mary Grace Melvin, or Patchin, was the wife and is the widow of Harvey C. Patchin, deceased, should be reversed, and that the order of the Supreme Court, so far as it reverses the decree of the surrogate, should be affirmed; and that Mary Grace Patchin should be declared to have been the wife, and now (o be the widow, of the deceased, and entitled to letters of administration on his estate; and that the Supreme Court should be directed to alter its decision, so as to conform to these conclusions, and then remit the record and proceedings in this case to the surrogate, with directions to carry such decision into effect, and that neither party should recover costs of the other, in this Court.

All the judges concurring,

Ordered accordingly.


source: Caselaw Access Project

author: Balcom, J. Selden, J.

license: Public Domain

text:
    McBride v. The Farmers’ Bank of Salem, Ohio.
    A bank, receiving from another notes for collection, obtains no better title to them, or the proceeds, than the remitting bank had, unless it becomes ■ a purchaser for value without notice of any defect of title.
    It is not a purchaser for value by reason of its having a balance against the remitting bank, for which it had refrained from drawing, and from having discounted notes for the latter upon its indorsement, in reliance upon a ' course of dealings between thé banks to collect notes for each other, each keeping an open account of such collections, treating all the paper sent for collection as the property of the other, and drawing for balances, at pleasure.
    The remitting .bank, having demanded the notes before maturity and the ' proceeds afterwards, and both of them being foreign corporations, assigned its demand to the plaintiff. No new demand was necessary to enable him to sustain an action, nor is it an objection that his assignor, as a foreign corporation, could not .have sued out an attachment against another foreign corporation on a cause of action not arising in this State.
    The cause of action is assignable, notwithstanding any personal disability of the assignor or the assignee to maintain an action in this State.
    It is no fraud against our statute or the defendant to assign the cause of action to a resident, to obviate the objection to an attachment by a nonresident. If it were, it lies with the defendant to prove the fraud, by showing the assignor’s knowledge that the plaintiff was a resident; and it seems that the objection is waived by a full appearance to the action.
    The Farmers’ and Mechanics’ Bank, of Hartford, Connecticut, in October, 1854, holding two notes against Paul & Pritchard of Ohio, amounting to $1,585, payable at the defendant’s Bank, on the 18th of November, 1854, sent them to the Canal Bank at Cleveland, Ohio, for collection, which bank on the 11th October, forwarded them to the defendant for collection, with a request, when paid, to remit exchange. The de-. fendant had no information that the Canal Bank was not the owner of the notes. Those banks had been accustomed to collect notes for each other: each kept an open account of such collections : each treated all the paper sent for collection as the property of the other; 'and each drew for balances whenever they chose to do so. There was no arrangement on the subject. On the 9th of November, the Canal Bank failed, and on the 13th the cashier of that Bank gave to the cashier of the Farmers’ and Mechanics’ Bank, an order on the defendant’s cashier for the two notes,', which was presented to the defendant’s cashier at the bank and the notes demanded. He replied to the demand that he would have to see Paul & Pritchard before giving an answer. On the 16th the order was again presented, and the cashier said he was not ready to give an answer. On that day the notes were paid to the defendant. On the 17th they were again demanded and the order presented, when the cashier said the notes were paid, but that the Canal Bank was indebted to the defendant, that he had passed the proceeds to the credit of the Canal Bank, and that he would not deliver up the notes. On the 8th of January, 1855, the Farmers’ and Mechanics’ Bank wrote to the defendant, claiming those notes, and the letter was received by the defendant on the 12th day of January; the order was again presented at the' defendant’s bank on the 15th of January, and the notes demanded, and the same answer given by the cashier as before. It was shown that at the time when the order was first presented to the defendant, the Canal Bank was indebted to the defendant in the sum of $1,051.42, balance standing on the books of the defendant to the debit of the Canal Bank. When and how this balance arose did not appear. At the same time the defendant held a draft for $2,5.00, on which the Canal Bank .was indorser, which had been discounted by the defendant for the Canal Bank on the 15th of the previous September. This draft became due prior to the 15th of January, when the last demand was made, and was duly protested for non-payment and the Canal Bank duly charged as indorser.
    On the 28th of July, 1855, the Farmers’" and Mechanics’ Bank assigned their demand against the defendant to the present plaintiff, who commenced this action shortly thereafter. The defendant appeared by attorney, and answered the complaint. The case did not show where the plaintiff resided at the time the action was commenced, nor how it was commenced.

      The cause was tried before Mr. Justice Clerke, at the New York Circuit, in November, 1856. At the close of the trial, on which the foregoing facts appeared, the defendant claimed that the complaint should be dismissed, on the following grounds:
    1. That the assignee of the plaintiff not having capacity to sue the defendant in the courts of this state, on the claim set out in the complaint, the defendant could not maintain the action.
    2. That the alleged assignment of the claim was colorable merely, and a fraud upon the statutes of New York.
    3. That there was no privity between the Farmers’ and Mechanics’ Bank and the defendant.
    4. That there was no proof of demand by the plaintiff of the defendant before suit brought.
    5. That the defendant was entitled to treat the notes as the property of the Canal Bank, and so treating them there was a balance due to the defendant.
    6. That, the plaintiffs’ title was defective, because, by the laws of Ohio, all assets of the Canal Bank, became vested, on its failure, in a receiver.
    The court denied the motion, and directed a verdict for the plaintiff, for $1,804.64, subject to the opinion of the court at general term on the exception, to be heard there in the first instance, the entry of judgment being in the meantime suspended.
    The court at general term made up, from the evidence which was detailed in the case, a statement of facts found by the court, substantially in accordance with the foregoing, and decided that the plaintiff was entitled to judgment on the verdict. Judgment was entered accordingly, and from that judgment the defendant brought this appeal.
    There was but a single exception taken on the part of the defendant, and that was to a decision of the judge, on the trial overruling the defendants’ objection to the introduction of the assignment from the Farmers’ and Mechanics’ Bank to the plaintiff, on the ground that as that Bank, being a foreign corporation could not maintain an action on the claim assigned in the courts of this state, against the defendant, also á foreign corporation, it could not confer upon the plaintiff a right of action on that claim.
    The cause was submitted on briefs, by

      Edwards Pierrepont, for the appellant.

      E. Terry, for the respondent.
   Balcom, J.

The most favorable view that can be taken of this case for the defendants, is that the notes against Paul & Pritchard, when received by the defendants, appeared by the indorsements thereon, to be the property of The Canal Bank of Cleveland, and that the defendants supposed the notes belonged to that bank when they received the money thereon and gave that bank credit therefor; and that the defendants had not previously drawn on the Canal Bank for the balance of $1,051.42 due them from that bank, because they expected to receive negotiable paper from such bank to collect and to credit the avails thereof to it, in satisfaction of such balance; and that the defendants did not afterwards draw on the Canal Bank for that balance, for the reason that they believed the notes against Paul & Pritchard were the property of that bank, and that they had the right so to treat them, and retain the money received thereon, and place it to the credit of such bank, in satisfaction of the aforesaid balance, and hold the residue as security for the payment of the draft of S. S. Stone, which the Canal Bank had indorsed and for whom the defendants had discounted the same. This view of the case must be adopted in determining it, for the reason that the court directed the jury to find for the plaintiffs; and the defendants have the right to say, if the jury had been permitted to exercise their own judgments upon the evidence, they might have found that this view of the case was the correct one.

It must be conceded that according to the decisions of the Supreme Court of the United States, in The Bank of the Me tropolis v. The New England Bank (1 How., 284; S. C., 6 id., 212), the defendants acquired a lien on the notes against Paul . & Pritchard and the money received thereon, which enabled them to retain the same in satisfaction of the balance of account that the Oanal Bank owed them. But the rule laid down by the Federal Court in that case, has never been adopted in this State; and it is inconsistent with decisions of our courts which have been regarded as correct expositions of the law for more than forty years.

The decisions of our courts have been uniform from the time Coddington v. Bay (20 Johns., 637), was determined, that before the holder of a note can acquire a better title to it than the person had from whom he received it, he must pay a present valuable consideration therefor; and that receiving it in payment of, or as security for, an antecedent debt is not such a consideration. (Rosa v. Brotherson, 10 Wend., 86; Stalker v. McDonald, 6 Hill, 93; Youngs v. Lee, 2 Kern., 551.) And we must follow these decisions although they are in conflict with that of the Federal Court in Swift v. Tyson (16 Peters, 1).

The case is not altered materially by a. long course of dealing between the parties, by which the holder of the note has been in the habit of receiving payment of balances due him in notes, or because he has omitted to collect a balance due him, by reason of an expectation or promise of payment of it in notes, or in consequence of his omission to collect it after taking such a note in payment of it. He has not in either case parted with or paid any present valuable consideration for the note; and if he fails to collect it or hold it, he is in no worse situation legally, than he was before receiving it. He has only been disappointed by not obtaining payment of an antecedent debt; and that consideration is insufficient to prevent the true owner of the note from claiming the same or its avails, or the maker or indorser • from setting up a defence to it existing in his favor as against the payee of a former holder. The defendants never parted with anything or gave any credit, or relinquished any security, or assumed any burden or responsibility on the faith of the notes against Paul & Pritchard, and in commercial language, were not bona fide holders thereof or of the money received thereon, for value.

According to the decisions of the courts of this State, Paul & Pritchard could have set up any defence to their notes, in the hands of the defendants, that existed in their favor as against the Canal Bank or the Farmers’ and Mechanics’ Bank; and the defendants had no title- to the notes that enable them to retain the money they received thereon as against the true owner.

These views are not inconsistent with the opinions in the following cases. (Clark v. The Merchants' Bank, 2 Comst., 380; The Commercial Bank v. The Union Bank, 1 Kern., 203; Warner v. Lee, 2 Seld, 144; Scott v. The Ocean Bank, 23 N. Y., 289.) It may be remarked that the evidence would have justified the jury (if the case had been submitted to them to determine), in finding that the defendants had sufficient notice before they received the money on the notes or gave the Canal Bank credit therefor, to have put them upon inquiry as to whether that bank owned the notes; and thus brought the case clearly within the decision of Mr. Justice Hand in Van Amee v. The Bank of Troy (8 Barb., 312).

And I am satisfied the defendants were not justified by the facts in coming to the conclusion that the Canal Bank owned the notes at the time they received the money on them and gave that bank credit .therefor. But we cannot so hold by reason of the manner the cause was disposed of at the circuit.

The action must have been commenced by attachment, because the defendants are a foreign corporation. But we must presume the plaintiff is a resident of this State; for there is nothing in the case to show the contrary; and if he was not a resident of the State when the action was commenced, the defendants should have moved on affidavits and notice to set aside the proceedings in it, instead of answering the complaint.

The position taken by the defendants’ counsel that the plaintiff could not maintain the action because his assignors were a foreign corporation and could not commence an action by attachment against the defendants in the Supreme Court of this State is clearly untenable. Besides this question was not within the issues tried; and it should have been raised by motion founded on affidavits.

The point raised by the defendants’ counsel, that the plaintiff should have demanded the money in question of the defendants before bringing the action, is answered by the fact that The Farmers’ and Mechanics’ Bank had demanded the notes of them, and they had refused to deliver them up, and had appropriated the money they received thereon, to their own use before that bank assigned their claim-for the money to the plaintiff, and he took that bank’s right of action for the money by the assignment, as well as its title to the money itself. (McKee v. Judd, 2 Kern., 622.) But no demand-of the money was necessary after they had appropriated it to their own use and had notice that it belonged to the Farmers’ and Mechanics’ Bank. It then became the duty of the defendants to remit it to that bank, and as they did not do so thé plaintiff, as "assignee of that bank, rightfully brought this action. (Stacy v. Graham, 4 Kern., 492; 19 N. Y., 267.)

There is no other question in the case worthy of notice. The judgment of the Supreme Court should be affirmed, with costs.

Selden, J.

All the questions presented in the briefs of counsel have been examined, although strictly, there is nothing in the case for this court to review, beyond an exception taken to the admission of the assignment of the claim against the defendants, from the Farmers’ and Mechanics’ Bank to the plaintiff in evidence on the trial, on the ground -that as the bank being a foreign corporation could not maintain an action on said claim in this State against the defendant, another foreign corporation, it could not, by an assignment to the plaintiff, confer upon him a right of action. (22 N. Y., 425.) No exception was taken to the denial of the motion for a dismissal of the complaint, nor to the ordering of a verdict for the " plaintiff, subject to the opinion of the court, nor to the direction of the general term that judgment should be entered on the verdict.

The defendant, however, has lost nothing by failing to except. The undisputed facts show that there was no defence to the plaintiff’s claim. The notes belonged to the Hartford Bank. The Canal Bank had no claim to them except as the agent of the Hartford Bank. The defendant could get no right to them through any act of the Canal Bank, according to our law, unless such right was obtained as a bona fide purchaser for value, and there is no. pretense that the defendant parted with anything, or gave any credit on account of them. Short of doing one Of those things, it could not, in this State, be regarded as a bona fide purchaser or holder, so as to exclude the legal or equitable claims of other parties. The rule in the United States courts is known to be more favorable to the person receiving such paper, but not, I think, sufficiently so, to furnish to the defendant any defence on the facts of this case. The law of Ohio would probably govern the case if it were before the court, but that not having been proved, the presumption is that the law there corresponds with ours; or the court in the absence of allegations and proof of the for eign law will apply our own law to the case. (1 Cow., 103; 2 Hill, 202, and note, a; 1 Seld., 347; id., 447; 1 Pick., 417, and note, 1).

It was not necessary for the plaintiff to demand the notes or the money after the assignment to him. The right of action was complete by the demand made by the bank, and that perfect right of action passed to the plaintiff on the assignment to him.

Nor is there any doubt that the bank had a right to assign the demand. A chose in action against a foreign corporation is not rendered unassignable by any provision of the statutes of this State. Probably an action against a foreign corporation, could not properly be brought in our courts by a non-resident of the State, unless the cause of action arose or the subject of the action, were situated within the State. (Code, § 427; 4 Abb., 72; S. C., 13 How., 316.) The inability to maintain an action does not, however, create an inability to assign the demand either to a resident or non-resident of this State, and, such assignment in either case would transfer the entire cause of action. In the former case the assignee could maintain an action in our courts, on the demand, in the latter he could not.. It is insisted, on the part of the appellant, that “ the plaintiff being the assignee of a foreign corporation, can stand in no better position than his assignor.” This is true, so far as relates to the cause of action. The assignee takes the cause of action which the assignor had, and no other. If the assignor had no cause of action against the defendant, the assignee acquires none. The defence, however, which is here urged does not touch' the cause of action, but only the right of the party to prosecute in our courts a conceded cause of action. That right, depending upon the residencé of the plaintiff, and not upon the right of action, the plaintiff, being a resident, can maintain the action when his assignor could not. There was no proof in regard to the plaintiff’s residence at the time of the commencement of the action, but if his non-residence was relied upon as a defence, the burden of proof, on that subject, rested on the defendant.

It is insisted that the assignment was merely colorable, and a fraud upon the statutes of Hew York. There is nothing in the case to show that when the assignment to the plaintiff was made, he was a resident of Hew York, or if he was, that the assignor was informed of that fact. In the absence of either of those facts, it is clear that no fraud upon the statutes referred to could have been intended. Fraud is not to be presumed, and if there was any evidence from which it could be inferred, the defendant should have asked to have that question submitted to the jury. This objection to the recovery rests upon the position that fraud was conclusively shown. Clearly, it was not so shown, or even presumptively.

But if it had appeared that the object of the transfer of the cause of action was to obviate this objection to the person of the plaintiff, it would not have been a fraud, either against the statute or the defendant. All that the statute requires is that the plaintiff shall be “ a resident of this State ” (Code, § 427), and if he has a valid cause of action against the defendant, his motives in obtaining it cannot be inquired into.

I am inclined to the opinion that the objection came too late and was waived by full appearance in the action, but it is not necessary to decide that question. (27 Barb., 337; 4 How. Pr., 275; 7 id., 238; id., 516.)

It is further objected that there has been a mis-trial, because the case was not one in which the court was authorized to direct a verdict, subject to the opinion of the court at general term. The language of the statute is: “ When, upon the trial, the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at the general term.” (Code, § 265.) The defendants’ counsel claims that “ such direction is proper only when the facts are uncontroverted. Whether they are so or not must depend upon the parties or their counsel. They are not uncontroverted if the parties choose to controvert them. Hence such course can only be taken by consent.” This is not the true construction of the statute. Whether the case “presents only questions of law” does not depend on the choice of the parties or their counsel, but upon the -evidence. Whenever the facts constituting a cause of action, or defence, are so clearly proved by either party as to justify the judge in directing a verdict absolutely in favor of such party, he may, if the legal questions involved are of sufficient importance and difficulty to justify that course, direct a verdict subject to the opinion of the general term, although counsel may controvert such facts. Of course this cannot properly be done where any essential fact is left in actual doubt by the evidence. I do not think this point, even in such a case, would be available where no objection was made to the direction. (18 N. Y., 392; id., 558.)

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Emott, J.

text:
    Sheldon et al. v. The Atlantic Fire and Marine Insurance Company.
    The acknowledgment in a fire policy of the receipt of the premium does not, it seems, estop the insurer from showing that it has not been paid-It is evidence, but not conclusive.
    The cases relating to marine insurance by brokers, who kept open accounts with the underwriters and assured, and credited the one, and were allowed by the other for the premium as paid, discriminated, by Émott, J. A general agent of the insurer may waive a condition in the policy that no insurance should be considered as binding until actual payment of the premium.
    Where the agent sent a policy by mail to an applicant for insurance, with a statement that the premium charged was higher than usual, and saying, “ Should you decline the policy, please return it by mail; if you retain it, please send me the premium”—Held, that this was a waiver of prepayment, and that the policy became effectual upon the insured retaining and thereby accepting it, or, at all events, ‘that the question should have been submitted to the jury.
    A nonsuit in such case will be set aside on exceptions, though the plaintiff did not expressly ask that the evidence be submitted to the jury.
    Appeal from the Supreme Court. Action on a policy of insurance against loss by fire. The plaintiffs sued as assignees of one Godfrey, by a transfer made after the loss had occurred. Upon the trial these facts appeared:
    Godfrey who resided in Oswego county, and owned the property insured, applied at the office of Lewis, an agent of the defendant, at Rome in Oneida county, on the 6th of August, 1855, for insurance. Lewis not being in his office at the time, Godfrey left his application with a person named Snow, who was employed or did business in the same office, and acted in some respects for Lewis in case of his absence, being also an insurance agent for other companies. Godfrey offered to pay the premium to Snow, but he declined to receive .it, stating that Godfrey might bring it at some future time, or they would send for it. On the 10th of August, Lewis inclosed the policy in question, with another, to Godfrey. Accompanying them was a letter, in which Godfrey was informed that by instructions from the company the rate of insurance in the policy in question was advanced from what had been usual in such cases, and from what no doubt Godfrey had expected, that is the premium was changed from one per cent to one and a quarter per cent. The letter concluded, “ Should you decline the policies, please return them by return mail; if you retain them, please send me the amount, $29.50.” One of the conditions annexed and referred to in each of the policies was this; “No insurance, whether original or continued, shall be considered as binding until the actual payment of the premium.” Godfrey retained the policies but did not send the premium. Two other letters from Lewis to him in October and November were introduced, calling for payment of the premium upon the policy which accompanied that now in suit. The last letter threatened to cancel the policy, unless it were paid. But these two letters were after the destruction of the property described in the policy of the defendant. This property was burned on the 8th and 9th September, 1855. Nothing else occurred before the fire which was material to the present question, and the case turned upon the effect of the letter of Lewis and the subsequent conduct of Godfrey. The defendant insisted at the trial that it appeared that payment of the premium had not been waived, nor. had credit been given to .Godfrey for such premium, and hence that no contract of . insurance was proven. The judge took this view of the case and nonsuited the plaintiffs, to which they excepted. There was no request by either party to submit any question to the jury. The judgment in favor of the defendant was, on appeal, reversed at general term in the sixth district and a new trial ordered. The defendant appealed to this court stipulating for judgment absolute against it if the order should be affirmed.

      John H. Reynolds, for the appellants.

      James Edwards, for the respondent.
   Emott, J.

I am not prepared to assent to the proposition stated by the learned judge who delivered the opinion in the court below, that the defendants are estopped by the acknowledgment in the policy, from denying the receipt of the premium. The mere possession, by the insured, of a policy con- . taining such an acknowledgmént, under such circumstances as were proved in this case, did not furnish conclusive evidence that the premium had been paid. If, indeed, the production of such a receipt for the premium should have that effect, it would dispose of the whole case, in favor of the plaintiffs, instead of presenting, as the Supreme Court held, a question to go to the jury. Ho case in the courts of this State was cited which binds us to go to such a length in respect to these instruments. In the New York Central Insurance Company v. National Protection Insurance Company (20 Barb., 475), the remark is made, that the acknowledgment in the policy, that the premium had been received, seems, upon the authorities, conclusive upon the company. But the case was decided upon the delivery of the policy by the insurers to the insured, and the waiver of prepayment of the premium. Goit v. The National Protection Insurance Company (25 Barb., 189), was a case of a clear waiver of the previous payment of the premium by the agent of the insurers, in which it was not necessary to invoke the doctrine I am questioning, although it was stated by Judge Allen, in delivering the opinion of the Court. Barnum v. Childs (1 Sand. S. C., 58), which was cited in the opinion, in the court below, presented a question of the effect of the non-payment of a nominal consideration for a sealed instrument, which was stated therein to have been “ in hand paid,” in the usual form. On the other hand, in The Insurance Company of Pennsylvania v. Smith (3 Whart., 520), the Supreme Court of Pennsylvania held that an insurance policy did not differ from any other contract in this respect, and that a receipt which it contained might be inquired into and contra-dieted. Chancellor Kent, it is true, states the rule in very broad terms, in his Commentaries (vol. 3, 260), but he is treating of marine insurances, and while citing several English cases of that description, to the rule, he does not allude to the difference in the manner of transacting the business of insurance against fire, and that against marine perils, especially in England. Insurances on vessels are often, if not ordinarily, effected by brokers, for and on account of the owners; and these brokers have accounts and a course of dealing, both with the underwriters and with the assured. In Dalgell v. Moir, (1 Campb.,. 532), the defendant had underwritten a policy effected by one Eeid, a broker, on account of the plaintiff. The plaintiff received the policy, thus underwritten, in payment of a debt due him from Eeid, and without advancing any money for it. Eeid had a running account with the defendant, and had not paid him any of the premium. The action was for a return of the premium. Lord Ellenbobough said at the trial: “If a man acknowledges that he has received a sum of money from a broker, referring to the receipt in the policy, and accredits him with his principal, to that amount, he shall not afterwards, as between himself and the principal, be .allowed to say that the broker never paid him.” That rests upon the law of principal and agent and the effect of the dealings with the agent. Fry v. Bell (3 Taunt., 493), and Mavor v. Simeon (id., 497), were also cases growing out of transactions with brokers. The latter case was compromised and not decided, but the former was taken out of the general rule, by fraud perpetrated or attempted by the insured through the broker upon the insurers. De Gaminde v. Pigon (4 Taunt., 246), was a case which shows the special circumstances upon which the rule is founded, and to which it is applicable. That was an action on a marine policy for a- loss on one vessel, and for return premium on another. The plaintiff, who lived at Alicante, was not known to the defendant as being concerned in the insurance, which was effected by the plaintiff’s factors in London. They obtained the insurance of one Wagstaff, an insurance broker, who debited the plaintiff’s correspondents in account, and they in like manner debited him. Wagstaff then credited the defendant in his accounts, but no money had passed between any of these parties, and both plaintiffs, London agents, and Wagstaff had failed. The court held that as between the plaintiff and defendant, the premium was paid, and the defendant must look to the broker, Wagstaff. Heath, J., said: “When the assured is admitted to have paid the premiums, it is, as between the assured and the underwriters, actually paid. The admission of the receipt of the premium is an admission that it shall be allowed by the underwriter in account, and how that account stands between these parties we do not know, for it is not stated in this case, but it must be allowed in account by the broker to the underwriter.” It will be seen that all these cases turn on a different principle from that which they are sometimes invoked to sustain. When the contract is made by the insured, in his own name, directly with the underwriters or insurance company, through their agent or officer, I am unable to see why an acknowledgment of the receipt of the premian contained in the policy or contract of insurance is governed by any different rule from other receipts. If the insurance, company have been credited with it in account by their agent, or if it has, in fact, been paid.to him, no doubt it is a sufficient payment to them. In any case the delivery and possession of a policy containing a receipt for the premium affords evidence of its payment, or of a waiver of its prepayment, but it is not conclusive, nor does it operate as an estoppel either in favor or against the insurers.

[The learned judge, after stating the evidence and the conclusion of the judge at circuit, that it did not establish a waiver of the condition annexed to the policy for. the payment of the premium before any liability should attach, nor show that any credit had been given therefor, proceeded:]

If the judge was wrong in this conclusion, if the evidence led necessarily to an opposite result, or if there was a question of fact to be determined, the nonsuit was erroneous and was properly set aside upon the exception to it by the general term. The case states that the defendants insisted, .that a valid contract of insurance was proven, and that the defendants were shown to have waived the payment of the premium, and to have given credit for its amount to Godfrey. The defendants’ counsel contends that if the plaintiffs wished to dispute the facts alleged by the defendants, and assumed by the court upon the-motion for a nonsuit, they should not only have resisted the motion, and excepted to its being granted, but should in addition have expressly requested to have the question whether such were the facts submitted to the jury. 1 do not so understand the rule or the cases. Barnes v, Perine (2 Kern., 18), which is supposed to contain such a rule, will be found to be a case in which there was evidently no dispute about facts, and granting a nonsuit, or giving judgment for the plaintiff, would necessarily be the result of a decision one way or the other upon the question of law presented. It is the. duty of a court to nonsuit whenever the facts of a case are undisputed, and the law arising upon them is adverse to the plaintiff, and also when, although there may be a disputed question of fact in the case, its determination in favor of the plaintiff would nevertheless not entitle him to recover. When a nonsuit is granted an exception to that ruling brings up the question whether the nonsuit was correctly granted upon either ground,“and the nonsuit must be set aside upon such an exception, both when the plaintiff is entitled to judgment as matter of law upon the close of his case, and when he would be entitled to judgment if the jury should find in his favor upon any disputed issue of fact, as to which there is evidence for their consideration.

There can be no dispute that Lewis could waive the actual prepayment of the premium. He was a general agent of this company, and whatever may have been his secret instructions, the insurer had a right to rely upon his act. His principals were bound as well by a waiver on his part of the condition of prepayment of the premium, as by his contracts of insurance. Lewis’s letter was a proposal to Godfrey, to make the insurance by the delivery and retention of the policy. It involved a waiver of the prepayment of the premium, and some credit for it more or less. If his proposition was accepted, the insurance became effected at once, and the premium was to be paid afterwards. The terms of his proposal were that if the insurance was declined, the policy was to be returned by the next mail. If not so returned it was accepted, and then Godfrey was requested to send or pay the premium. This however is not required by the next mail, or with the same promptness as is demanded in his answer to the proposal for insurance. It will be found in the evidence of Godfrey that he testified that when'he first applied at Lewis’s office in his absence, and offered to pay the premium, he was told by Snow that he could pay for it the next time he came to Borne, or if they wanted it sooner they would send for it. Lewis testified that he had occasionally issued policies without demanding the premium, or sent them as he did this one. There was nothing in the conduct of Lewis to indicate that he did not suppose after Godfrey retained the policy, that the contract of insurance was made, and the premium due whenever he chose to call for it. If the company had sued Godfrey for the premium, his retention of the policy would have been strong and probably conclusive evidence of his acceptance of the proposal of their agent, and neither the receipt contained in the policy, nor his omission to reply to the letter of Lewis would have prevented their recovery. My conclusion upon the whole” transaction is that there was a full waiver 'of the previous payment of the insurance premium by the defendant’s- agent, and -that there was needed only the acceptance or consent of the party desiring insurance to make the contract of insurance complete. The evidence which has- been adverted to, if not conclusive to show such a consent or acceptance, at all events was sufficient to carry that question to the jury. My own opinion is that the proof of Godfrey’s acceptance of Lewis’s proposal was conclusive. But- either way the nonsuit granted at the trial was wrong. The order setting it aside should be affirmed, with costs, and the plaintiff must have judgment under the stipulation.

Denio, Ch. J., and Balcom, J., thought the nonsuit was properly granted: that Lewis called upon Godfrey to send the policy by return mail or remit the premium; this was a mere proposal to insure, which he did not accept. Martin, J., expressed no opinion.

Judgment affirmed, judgment absolute for the plain-. . - tiff, and cause remitted to the Supreme Court with directions to assess damages.


text:
    Bank of Chenango v. Brown.
    The legislative power, in this State, is absolute and unlimited, except by the restrictions of the Constitution.
    The provisions in the Constitution of 1846 (art. 8, §§ 1,9), that corporations may be formed under general laws, and that the legislature shall provide for the organization of cities and incorporated villages, are merely directions' for the exercis.e of an authority which had been restricted by former Constitutions, and not grants of power.
    The act (ch. 426 of 1847, § 92,) authorizing the electors of an incorporated village to determine what sections of the general act for the incorporation of -villages shall apply to their village, is valid and constitutional. It is not the delegation of legislative power, but a tender to these municipalities of such specified amendments to their respective charters as they may elect to accept.
    It seems that the duty of issuing warrants for the collection of taxes under this statute is imposed upon the trustees as a body, and the power may be exercised by the vote of a quorum at any regular meeting duly convened. It is not the act of the individual officers; and the warrant is valid without the signature of all.
    The renewal of a warrant being authorized as a part of the general act which had been adopted by a village, such a renewal is not invalid because the warrant professes on its face to be in pursuance of a special act of the legislature for that purpose which may be unconstitutional.
    Appeal from the Supreme Court. Action for taking and carrying away a parcel of bank bills. The defendant justified as a trustee of the village of Norwich. Upon the trial it appeared that the defendant directed the collector of. taxes of said village to enforce a warrant for the collection of certain taxes for the levy of which the action was brought. The validity of the assessment and of the collector’s warrant depended upon facts, which are sufficiently stated in the following opinion. The trial was before a judge without a jury (which was waived), and the judgment for the defendant entered by his direction, having been affirmed at a general term in the sixth district, the plaintiff appealed to this court. The cause was submitted upon printed arguments.

      Rexford & Kingsley, for the appellants,

      Sherwood S. Merritt, for the respondent.
   Emott, J.

The village of Norwich was chartered by an act of the- legislature, passed April 17th, 1816. (Laws of N. Y., vol. 4, p. 148.) On the' 7th of December, 1847, after the adoption of-the present constitution, the legislature passed a general act to provide for the incorporation of villages. (Laws of 1847, vol. 2, p. 432.) The ninety-second section of this act authorizes the electors of any village then incorporated to declare by resolution, at their annual meeting, that any of the sections of the act specified in such resolution, should apply to such village, and provides that from and after twenty days from the adoption of any such resolution, the sections of said act which should be therein declared to apply to such village should apply to the same, and all laws inconsistent with the sections so adopted should have no force or effect in respect to such village. At the annual meeting of the electors of the village of Norwich, held on the first Monday in May, 1852, certain sections of the act of December 7, 1847, were adopted in the manner pointed out in said act, and all the steps were taken which were requisite according to the act to make these sections part of the charter of the village of Norwich, and in force therein. The tax for the collection of which the defendant and others directed the taking of the property of the plaintiffs, was levied by the trustees of the village, pursuant to a vote of the qualified electors taken on the first Monday of May, 1854. It is not denied that the purposes for which the tax was levied, and the amounts which it embraced, were within the powers and purposes enumerated in the sections of the act of 1847, which were specified in the resolution passed at the village meeting in 1852. The defendant and others, as trustees of the village, on the thirtieth of August, 1854, issued a warrant directing the collection of this tax. The tax had been previously assessed in conformity with section thirty-three of the act of 1847, which was one of the sections specified in the resolutions passed at the village meeting of 1852. The warrant issued in August, 1854, was returned by the collector on the 17th of March, 1855, and the tax assessed upon the plaintiff, among others, was returned unpaid. The warrant of such collector was thereupon renewed for the collection of such unpaid taxes on the 17th of March, 1855, and under this warrant the plaintiff’s property was seized. The provisions of the law of 1847 which were adopted by the vote of 1852, also authorized the renewal of such a warrant by the trustees of the village...

The question is presented by the plaintiffs, whether the action of the village of Norwich, at the annual meeting in May, 1852, was valid and effectual. If it is found to have been so, and to have made the various provisions of law which the electors of the village specified in the resolution adopted by them a part of their charter, this will dispose of nearly the whole of this case.

This is a question of legislative power. It is not denied that the statute itself was pursued, but it is claimed that the-legislature had no power to authorize an existing village to adopt by a vote of its electors provisions contained in the general law for the incorporation of future' villages, or any other existing provisions of law, and that such provisions could not in this way be made a part of the charter of such a corporation.

The legislature of this state possess the whole legislative power of the people, except so far as they are limited by the constitution. In a juridical sense, and so far as courts are' concerned with its application and construction, their authority is absolute and unlimited, except by the express restrictions of the fundamental law. The power to- pass a. general act for the incorporation of villages does not result from the directions contained in the constitution, that the legislature “ shall pro-; vide for the organization of cities and incorporated villages or that “ corporations may be formed under general laws but from the general authority of the legislative body. The new constitution intended to introduce a system of general and not special legislation. To this end any barriers which existed in or under the former constitution in the way of such general legislation in respect to corporations were abolished, and the legislative power was left free to act by general enactments upon this class of subjects. But the power to pass such laws resulted from the grant of the legislative power of the people to the legislature, and not from the provisions which either indicated the general system which the constitution was intended to favor, and in some cases to direct, or from the removal of the restrictions in former constitutions in the way of such legislation. Such provisions were merely directions for the exercise of an existing authority, and not its creation; and the removal of restrictions upon it indicated that but for such restrictions it might even before have been exercised. It is not necessary to find in the constitution any express authority for such legislation as is here challenged. The meaning and intention of the legislature in the ninety-second section of the act of 1847 is unequivocal, and it is sufficient that there is nothing in the constitution to forbid- their providing by general laws for the alteration or amendment as well as the formation of corporations.

It is contended that this portion of the act in question is invalid under the decision of this court in the case of what is known as the Free School law. (Barto v. Himrod, 4 Seld., 483.) The argument is that these provisions of the act now in question in effect submitted the passage of the law to a popular vote, and were in conflict with the constitution as interpreted in that case. In Barto v. Himrod it was decided that a law which was general in its scope and applicable to the whole state, and which provided that the electors of the whole state should determine, at the ensuing general election whether it should or should not become a law, and that in case at such election a majority of all the votes in the state should be cast against the law, it should be null and void, but if in favor of it, then it should become a law and should take effect, was unconstitutional. On the other hand in the Bank of Rome v. The Village of Rome (18 N. Y., 38), there was an act authorizing a subscription by the village of Borne to a certain railroad, and an issue of bonds to provide for the payment of such subscription. The act contained a section to the effect that the trustees of the village should have no power to make any such subscription, or create any liability under the act, until it should have been approved by two-thirds of the taxpayers, at an election to be held in a manner provided therein. If it appeared from the result of the election that the act was approved, the president of the'village was to make the subscription and issue bonds, but if otherwise these acts were not to be done. It was held that this law was constitutional, arid the bonds issued in pursuance of it were valid. In Starin v. The Town of Genoa and Gould v. The Town of Sterling (23 N. Y., 439, 456), acts had been passed authorizing these towns, respectively, to borrow money and execute bonds therefor, and to pay over the money to a railroad company named in the , act; but it was provided that the town officers should have no power to do any of the acts authorized thereby, until they should procure and file in the county clerk’s office the written assent of two-thirds of the taxpayers of the said towns. It was held that these laws were constitutional and valid. In' the case of Grant v. Courter (24 Barb., 232), an act to authorize any town in the counties of Schenectady, Schoharie, &c., to subscribe to the Albany and Susquehanna railroad, containing similar provisions for the assent of the taxpayers with the' acts last referred to, was sustained by the Supreme Court, the question being carefully discussed by Mr. Justice Weight in the opinion of the court. In Clark v. The City of Rochester (id., 446), a law authorizing the city of Bochester to borrow money for a specified purpose, but declaring that the sections of the act conferring this power should not take effect until they were submitted to the electors of the city, and approved by a vote of two-thirds of such electors, was held to be constitutional. These cases arose under laws passed since the adoption of the present constitution. In Corning v. Greene (23 Barb., 33), a similar question was presented under the Albany Pier Law, passed in 1823. The twelfth and last section of that act provided that the corporation of the city of Albany should file their consent to the bill within sixty- days after its passage, or the same should be void. An objection to this act, on the ground that it was an unconstitutional delegation of legislative authority was considered and overruled in this case.

The case of Barto v. Himrod decided that the legislature does not possess the power to submit to the people of the State the question whether an act shall or shall not become a law; or to pass an act to take effect upon the happening of a future event unless they determine for themselves the expediency or inexpediency of the law in the supposed event. They cannot delegate to the people the power to vote on the precise question which the constitution makes it their own duty to decide, that is, the expediency of a given law. In other words, an act cannot be passed to - take effect, if the people of the state' shall vote that they think it ought to do so. In the cases of the village of Borne and the towns of Sterling and Genoa (18 N. Y., 23; 23 id., 439) the laws in question were sustained on the ground that'their effect was only to remove certain disabilities-and confer certain powers upon the village and the towns in question, and that what was left to the vote of these municipal bodies was to determine whether they would avail themselves of the powers and privileges thus conferred. Judge Selden remarks in his' opinion in Gould v. The Town of Sterling, that the legislature, in the statute then in question, had done absolutely and finally all which was essential for them to do, and that it was not submitted to the people of the town to determine whether the act, or any part of it, should take effect, but only the prudential question whether they would avail themselves of the power conferred upon them. He adds that it was upon this distinction, and not upon the idea that the act was submitted to the people of a village, and not to the people of the whole State, that he assented to the judgment in the case of the Bank of Rome v. The Village of Rome. Such a distinction is undoubtedly most material under the authorities in the decision of such cases. It may be shadowy and difficult to find in some cases, but it must be pursued and applied to the best of our ability. I must observe, however, that it is not immaterial, upon this very question, whether a law is submitted to the acceptance of the people of the whole State, or to those of a particular locality. The mere form of submission, or the precise question submitted to the vote of the electors, is not decisive of the question whether the law is really enacted by the legislature, or submitted to the people. It is substantially the same thing whether a constituency vote that a law shall take effect, or that they will accept it or act under it. If the Free School law had provided that the electors of the State should vote that they would or would not accept its provisions, instead of voting that it should or should not become a law, the case and the judgment of the court upon it would not probably have been different. And in the case of local statutes it is not very material whether the local constituency signify their consent to the exercise of powers conferred by a law, or their consent that it shall take effect. As such a law is confined to the localities in question, it does not take effect except by the exercise of the powers conferred upon the local bodies, corporate or municipal. Their acceptance of those powers is the same thing as giving effect to the law. A similar law, complete in its provisions and conferring new or additional powers and privileges upon the people at large, or upon certain of their officers, as school officers or the like, if framed and submitted to their acceptance, could not be sustained under the case of Barto v. Himrod. It is a material distinction, however, between the cases, that the people of a particular municipality or local body are not the constituents of the legislature. They are not the people of the State of Hew York, who have irrevocably committed their power of legislation to the legislature, by a delegation which does not permit that legislature to remand any legislative question to their constituency. A city or a town or a village is a separate recognized local body, which, without exercising legislative power, may signify, if permitted, its assent or dissent to any grant or withdrawal of powers or privileges. The vote of the whole people of the State upon a question of the expediency of a general statute may be essentially an act of legislation. The vote of a local constituency is an assent or dissent to an act of grant or deprivation done by the legislature, but affecting themselves. Upon these principles the legislature has, in numerous instances, submitted charters of incorporation, or acts amending them to a vote of the inhabitants affected thereby. A very cursory examination of the statute books shows many such acts. I may cite a few, (Charter of Syracuse, Laws of 1847, p. 652; Charter of Brooklyn, Laws of 1849, p. 57; act amending the Charter of New York, id., p. 278; act to establish free schools in the village of Poughkeepsie, Laws of 1843, p. 279.)

In the present case the legislature passed a statute conferring certain powers, and imposing certain duties upon the corporations of villages and their officers. The act was complete in itself, and was effectual for the purpose of providing for the incorporation of new villages, independent of any such action as is contemplated by the 92d section. I do not, however, attach any importance to this fact. If the legislature had passed an act containing simply the sections specified in the resolution of the village meeting of Horwich, and providing that their provisions might be accepted by any village in the State, or by the village of Horwich, and become part of the charter thereof, provided the electors of such village signified their acceptance of the same, I can perceive no constitutional or other objection to such a law. This was precisely the effect of the portion of the law of 1847 now under-consideration, as to this particular case. The legislature in effect enacted certain amendments to the charter of the village of Norwich, but provided that the electors of that village should be allowed and required to signify their consent and acceptance of such amendments before they should take effect. This was simply authorizing the members or electors of a corporation to signify whether they would accept a grant of additional powers or submit to new restrictions. It was not necessary to have the corporate consent to such an act, but such consent certainly did not invalidate it. It would disturb a vast amount of the past legislation of the State, if such a statute were declared void or ineffectual. I perceive no difference whether the statute submits an entirely new charter, or amendments to an existing one, to the constituency to be affected. Either way the legislative action is complete and final, and the vote. of the municipality is simply a determination of the expediency of their accepting the result of that _ action. I am of opinion that by the vote of the village meeting of Norwich in May, 1852, the sections of the general act specified in the resolutions of that meeting, became a part of the charter of said village, and that under such amended charter the trustees thereof had power to levy and collect such a tax as that imposed upon the plaintiffs.'

This conclusion renders it unnecessary to examine the constitutionality of the act of 1855, or the powers of the trustees ' under the original charter, and I express no opinion on these questions. There remain, however, one or two objections to the manner of proceeding of the trustees which must be considered.

The warrant for the collection of the tax in question was signed by only four of the five, trustees of the village. It does not appear whether the fifth was present when it was issued, or was notified to attend for that purpose. It is contended that the warrant must be signed by all these officers. It would be a sufficient answer to the objection here to say. that it was not taken at the trial specifically, so as to enable the defendants to meet and to obviate it, as they might have done. But I am of opinion that this duty of issuing a warrant is imposed by the statute upon the board of trustees as a body, and may be exercised like any other power given by the statute to the officers of a corporate body by a proper vote of a legal quorum at any regular meeting duly convened. It is the act of the board, and not of the individual officers, and it requires to its validity only what is required for any other corporate act authorized by the charter.

The only other objection requiring notice is to the form of the warrant. In 1855 an act was passed by the legislature amending the charter of this village. (Laws of 1855, ch. 63.) This act contained, among other things, two sections declaring the proceedings which had been previously had, to levy this tax to be valid, and directing the trustees to proceed to collect it. The plaintiffs contend that this act is unconstitutional and void, and they object that the warrant issued by the trustees cannot be sustained except under this act of 1855, because it refers to the provisions of that act, and recites that it is issued in pursuance of the same. This is a merely formal objection and is not difficult to overcome. The original warrant to collect the tax was issued in August, 1854, and was in the form required by the charter of the village, as amended by the provisions of the general law which had been adopted. The warrant issued March 17th, 1855, was not a new warrant, or to collect a new tax, nor was it a warrant specially or only authorized by the statute of 1855. Its whole efficacy is contained in the words “ we do hereby renew the said warrant.” The amendments to the charter adopted from the general law conferred the power to renew such a warrant, and this was an exercise of that power and a substantial compliance with the act. It would be an unreasonable technicality to permit such an exercise of a valid authority to be vitiated by a mere reference to, or recital of, a questionable or even an invalid source. It is sufficient that the power exists, and that it was duly exercised. It- will not be defeated because the officers exerting it incorrectly state that it proceeds from a wrong source.

I am of opinion that the judgment of the Supreme Court was right for the reasons I have given, and should be affirmed.

Balcom, J., expressed no opinion; all the other judges concurring,

Judgment affirmed.

       That decision was affirmed by this court at March term, 1864.—Reporter.

       Also affirmed in this court, hut upon another ground, without considering the objection here stated.—Reporter.


author: Balcom, J. Emott, J., (dissenting.)

text:
    McConochie v. The Sun Mutual Insurance Company.
    A notice of abandonment to the underwriters of a marine policy will not support a claim for a constructive total loss, unless it states, in such terms as to render the inference clear, that the damages exceed half the value of the subject insured.
    A notice held insufficient which stated that a vessel containing the sugar insured had put into port in distress with several feet of water in her hold: that on landing the cargo it was found very seriously damaged; and that the insured abandoned the sugar and claimed a total loss.
    Appeal from the Superior Court of the city of New York. Action upon an open policy of insurance, brought to recover a constructive total loss of goods which were damaged on board the bark M. L. Frank, belonging to the plaintiff, while on her voyage from Matanzas to New York. The vessel put into the port of Savannah in distress. The cause was heard upon the issue formed by a demurrer to the complaint, and the demurrer was sustained.
    The plaintiff appealed to the court at general term, where the order was reversed and judgment rendered for'the plaintiffs. The defendants appealed to this court.

      John E. Parsons, for the plaintiffs.

      H. P. Fessenden, for the defendants.
   Balcom, J.

The complaint shows that the assured had received $17,587.98 of the defendants, which satisfied their claim if they were only entitled to recover for a partial loss of the goods; but that $2,198.86 was still due them from the defendants, with interest from July 11, 1856, provided they were entitled to recover for a constructive total loss of the goods. It is alleged in the complaint that the bark M. L. Frank was laden with sugar; that she encountered stormy and tempestuous weather, causing her to labor badly and to make a good deal of water, so that she had large quantities of sea water in her hold, and was compelled to put into the port of Savannah. That the sugar, by reason of the sea water in the hold of the vessel and the perils and dangers of the seas, was damaged to the amount of more than seventy-two per cent of the value thereof. That the assured received intelligence of the damage to the sugar oh the 5th day of April, 1856; and thereupon, on that day, served a notice on the defendants dated that day, and addressed to their president in these words, viz.:

“Dear Sir: Understanding that the bark M. L. Frank, on her voyage from Matanzas to New York, has been compelled to seek the port of Savannah, in distress, where she arrived, we hear, with'several feet of water in her hold, the cargo was landed and found very seriously damaged; we, therefore, hereby abandon to you two hundred and eighty hogsheads sugar, valued at $85 per hhd. insured by you under our open policy, No. 29,179 for $28,800, and shall claim for a total loss.
(Signed) “ Alex. McCohochie & Co.” ■

The reason assigned by the defendants in. their demurrer, for insisting that the complaint does not state facts sufficient to constitute a cause of action, is, that there is no averment therein of an actual total loss of the sugar, or of an abandonment sufficient to warrant the assured in claiming as for a constructive total loss; whilé it shows that the defendants have paid the assured all that was due them by reason of any partial loss upon the sugar.

It is conceded that if the notice served on the defendants was sufficient, the plaintiffs were entitled to recover for a constructive total loss of the sugar.

Phillips correctly says: “ It is a general rule in the United States that if the ship or goods insured are damaged to more than half of the value, by any peril insured against, or more than half of the freight is lost, the assured may abandon and recover for a total loss.” (2 Phillips on Ins., 4th ed., p. 274, § 1535.)

A valid abandonment cannot be made unless there be a sufficient cause for it; that is to say, the ship or goods must have been actually damaged to more than half the value; and the notice of abandonment to the insurance company or underwriters, must state the true cause thereof. They must be informed of the grounds of the abandonment, so they may determine whether to accept. (2 Phillips on Ins., 4th ed., p. 388, § 1684.) Livingston, J., in Suydam v. The Marine Insurance Company (1 Johns., 190), remarked, “ It will hardly be said that to constitute a valid abandonment, it is necessary to state the true cause. Though no form be prescribed for this act, yet care should be taken that it be unconditional, explicit, and on sufficient ground; and, particularly, that the accident occasioning it be described with certainty so as to enable an underwriter to determine whether he is bound to accept.” (Dickey v. The N. Y. Ins. Co., 4 Cow., 244.) Washington, J., in King v. The Delaware Insurance Company (2 Wash. C. C., 309), held that it is incumbent on the insured to state to the underwriter a, sufficient reason for the offer to abandon, so that the latter will have an opportunity of judging'whether he is bound to accept the offer or not. In Hazard v. The N. E. Marine Insurance Company (1 Sumner, 221), Story, J., said: “Nor do I well see, how an abandonment can be made without stating a case justifying the act.”

In Bosley v. The Chesapeake Insurance Company (3 Grill & Johns., 450), the notice to the Insurance Company was as follows:

“ I observe by the Boston newspaper of the 29th of January, that ship General Smith, insured in your office per policy No. 7661, was driven ashore in a heavy gale of wind the 6th of December, and by a Charleston paper of the 26th of January, that on the 13th she was not got off. In so dangerous a situation as Helvoet roads, it is to be feared that a total loss has ensued. I, therefore, as a measure of precaution, for both your interest and my own, do hereby abandon to you, and claim a total loss.
(Signed) “ James Bosley.”

And the Court of Appeals of Maryland held that the notice did not state a sufficient reason for the offer to abandon. There is no conflict between this decision and that in Macy v. The Whaling Insurance Company (9 Metc., 354;) for the notice in the latter case was this:

“ Having received such information as leaves no doubt of the loss of our ship Orbit, on the 7th day of 6th month, 1842, on the coast of Peru, we hereby tender to said company our abandonment of the interest in the cargo of said ship so far as it has been insured to us by a policy issued by said company as Mo. 574, and claim as for a total loss.”

And the court held that the loss of the cargo might well have been inferred from the loss of the ship; and the court might have said the notice was tantamount to saying “ our ship was lost on the 7th day of June, 1842, and the cargo with it” The case of Peirce v. The Ocean Insurance Company (18 Pick., 83), decides nothing adverse to the cases above cited; and I have not seen any that conflicts with the principle held in them.

The rule to be deduced from the above mentioned authorities, is that the notice of abandonment to enable the assured to recover for a total loss where it is less, must truly state, not only the grounds-for the abandonment, but with such particularity as to enable the underwriter to determine whether he is bound to accept the offer or not; and if it does not further state in terms, that the ship or goods insured are damaged to more than half the value, its language must be such as to render the inference therefrom clear, that the damages exceed half the value of the ship or cargo. In other words, the grounds of abandonment set forth in the notice, must be such, admitting them to be true, that the right of the assured to' recover for a total loss, is a necessary consequence. If the notice comes short of this, it is insufficient.

Applying this rule to this case it seems to me the notice of abandonment was insufficient. The facts that the ship had been compelled to seek the port of Savannah in distress, where, as the assured had heard, she arrived with several feet of water in her hold, and the cargo was landed and found very seriously damaged, do not show whether the damage to the eighty hogsheads of sugar which composed her cargo, was more than half the value; nor is the inference from those facts clear, or even highly probable, that the sugar was damaged to that extent. Indeed the notice does not show, except inferentially, that the sugar was wet at all. The statement of a witness that the sugar was “ very seriously damaged,” would hardly justify a jury in finding the damage exceeded half its value.

If these views are correct, the complaint does not state facts sufficient to constitute a cause of action, for a total loss of the sugar in question; and as it is not claimed that any other cause of action is set out in- the complaint, the demurrer thereto was well taken.

It follows that the judgment of the general term * of the Superior Court should be reversed, and the order of the special term of that court affirmed, with costs.

Davies, Selden, Harvest and Rosekrans, Js., concurred.

Emott, J., (dissenting.)

The demurrer in this case admits that the facts stated in the complaint, show a constructive total loss at the time of the abandonment, and the question is whether the notice of abandonment was sufficient. The insurance was upon the cargo, and the right to abandon in such a case, exists only when the goods have been damaged by some of the perils insured against, to an amount equal to one half their value. The letter of abandonment in the present case stated that the vessel had put into port in distress, with several feet of water in her hold, and that the cargo was very seriously damaged. The argument for the appellants is, that the insured should have stated in the words of the rule of law, that it was damaged to the extent of half its value. I do not so understand the principles or the authorities controlling such cases. There is no form prescribed or required for the act or notification of abandonment; but it is necessary that the accident occasioning it should be described with certainty, so that the underwriters may judge, whether they ought to accept or not. The assured must inform the insurer whether the damage has been occasioned by stranding or shipwreck, or capture, or as in this case by stress of weather at sea. But it would be a merely formal statement to add that the extent of the damage was one half the value of the goods. It is the rule of law that there must be damage to that extent, or the assured cannot claim a constructively total loss of cargo and, by abandoning, turn that into a total loss which would otherwise and in fact be partial. Both parties are presumed to know the rule, and to act with reference to it. That which must be stated clearly and truly in the notice of abandonment, is the cause of the injury to the cargo, and not the extent of that injury, or the fact that it was sufficiently great to come within the rule. (Suydam v. Marine Insurance Company, 1 Johns., 181.) It could not be contended that a notice would be sufficient which should merely state that the cargo was damaged to the extent of half its value without stating how or by what cause. The information which the insurer needs is the cause of the injury, in order that he may judge whether the loss will probably be as great as the law requires to entitle the assured to abandon the property, and determine whether he should accept the abandonment, or deny the right to make it. To this end it is material that he should be informed of the circumstances which have produced the damage, but it would not aid his judgment to be told expressly what he may be presumed to know as matter of law, that the loss was claimed to be as much as one-half the value of the goods.

The appellants have failed to produce any authority which sustains the' doctrine for which they contend, while the fact that such a point has not been taken in several cases where it might have been, shows that the rule has not been so understood by counsel or the courts. (Dickey v. N. Y. Ins. Co., 4 Cow., 222; Macy v. Whaling Ins. Co., 9 Metc., 354; Bradley v. Maryland Ins. Co., 12 Peters, 378; Southgate v. Patapsco Ins. Co., 6 id., 604.)

The judgment appealed from was correct, and should be affirmed, with costs.

Wright, J., also dissented; Denio, Ch. J., expressed no opinion.

Judgment reversed and judgment at special term affirmed.