text:
    Pack vs. The Mayor, &c. of the City of New-York.
    In an action against the “ mayor, aldermen and commonalty of the city of New-York,” one of the aldermen is a competent witness for the defendants, both at the common law and under the code of procedure.
    In a suit against a municipal corporation, one of the corporators is not a party within the meaning of § 399 of the code, so as to be excluded as a witness.
    That section should not be so construed as to include any one who is not, by name, a party to the action. Per Bronson, C. J.
    At the common law a party could not be sworn as a witness, for himself or a co-plaintiff or defendant; and this was the rule, it seems, although such party had no interest in the suit.
    But a corporator, although an officer of the corporation, was not a party within the meaning of the rule.
    Nor at the common law was a member of a public corporation incompetent as a witness on the ground of interest. The rule was, however, otherwise in re spect to members of private corporations.
    Whether a father, whose minor child has been so injured by the negligence of another that he dies, can recover any higher damages than medical and funeral expenses, quere.

    Appeal from the court of common pleas of the city of New-York, where Pack brought an action on the case against the mayor, aldermen and commonalty of that city. On the trial in May, 1849, it appeared that in 1847 certain persons employed by the city corporation were engaged in excavating and blasting rocks on the Bloomingdale road; that fragments of rock were thrown against and entered the house of the plaintiff, situated on that street, whereby his wife and son, a lad eight years old, were injured, the latter fatally, so that he died in an hour and a half. After the plaintiff had rested, Mr. Jackson, one of the aldermen of the city, was called as a witness for the defendants, but was objected to by the counsel for the plaintiff. The court sustained the objection, and the witness was excluded. In the course of the trial the plaintiff, under objection by the defendants’ counsel, proved that the boy was a healthy, lively and intelligent lad. The court, among other things, charged the jury that the plaintiff could recover only the probable pecuniary profit of the child’s services until he would have become of age. The plaintiff had a verdict for $1000, and after judgment the defendants appealed to this court.

      H. E. Davies, for appellants.

      C. Nagle, for’ respondent.
   Bronson, Ch. J.

This is an action- on the case against the city of New-York, by its corporate name of “the mayor, aider-men and commonalty of the city of New-York;” and on the trial the defendants called Moses W. S. Jackson as a witness, who, for the reason that he was oiie of the aldermen of the city, was rejected by the court as being incompetent. He could not be excluded on the ground of interest, unless he was also a party to the action ; (Code, §§ 398, 399;) and if he was in any sense a party, I think he was not one within the meaning of the code. The action was not brought against the men holding the offices of mayor and aldermen, nor 'against any other individual; but against the corporation of the city. The death or resignation of the mayor and all the aldermen would not work an abatement of the suit; and if the plaintiff recovers, the judgment will not be against any individual, but against the legal entity created by the charter. Although the “ aider-men” are named in, and are an integral part of the corporation, so also are the “ commonalty”; and an alderman is no more a party to the suit, than is every one of the four hundred thousand inhabitants of the city. They are all alike corporators, and are all named as such ; and if one is not a competent witness for the corporation, neither is the other; and the corporation can have no witnesses without going beyond the limits of the city. This is a far reaching question. If the citizens of New-York are excluded from being witnesses for the corporation, then the inhabitants of every town, county, or other civil division in the state, must be rejected when their division is a party and needs their testimony; and the state itself—which is only a larger corporation—can not, when a party to a civil suit, call a citizen as a witness. The principle is the same in all these cases. There is nothing in the language of the code which makes it necessary for us to say, that a corporator is a party to a suit brought by or against the corporation; and I think the word “ party,” as it is used in the 399th section, should not be so construed as to include any one who is not by name a party to the action. It follows, that Jackson was improperly rejected. '

Jackson was also a good witness at the common law. It is a general rule that a party to the record can not be a witness for himself, or for his co-plaintiff or defendant, against the adverse party. Mr. Phillips thinks the rule is founded solely on the ground of interest in the event of the suit. (1 Phil. Ev. 45, Am. ed. of’49.) Mr. Starkie thinks it founded partly upon interest, and partly upon a principle of policy. (2 Stark. Ev. 797, Am. ed. of ’42.) Our cases exclude a party because he is a party; some of them going so far as to exclude him although he has no interest in the event of the suit. (Frear v. Evertson, 20 John. 142; Schermerhorn v. Schermerhorn, 1 Wend. 119 ; Supervisors of Chenango v. Birdsall, 4 id. 153 ; Benjamin v. Tillman, 19 id. 353; Mills v. Lee, 4 Hill, 549; Norton v. Woods, 5 Paige, 249.) But the question still remains, who is a party to the action within the meaning of the rule: and in a suit by or against a corporal on, a corporator, though also an officer, is not such a party. He may be interested in the event of the suit, and be excluded for that reason; but not on the ground that he is a party. There is no difference in this respect between an officer and any other member of the corporation. In Weller v. The Governors of the Foundling Hospital, (Peake’s N. P. Cas. 163,) Lord Kenyon admitted several of the governors as witnesses for the defendants, on the ground that they were sued in their corporate, and not in their natural and individual capacities, and had no interest in the event of the suit. When the proceedings are against the inhabitants of parishes and other districts, relative to settlements of the poor, repairs of highways and bridges, and other questions affecting the rates of the district, the rated inhabitants are, in England, held to be incompetent witnesses; not, however, because they are parties, but because they are interested; but inhabitants who are not in fact rated are admitted as competent witnesses for the district, even though they may have property, and might have been rated. (The King v. Prosser, 4 T. R. 17; The King v. Inhabitants of South Lynn, 5 id. 664; The King v. Inhabitants of Kirdford, 2 East, 559; 1 Phil. Ev. 48.) And in this state, the cases of Van Wormer v. The Mayor, Aider-men and Commonalty of the city of Albany, (15 Wend. 262,) and The Trustees of Watertown v. Cowen, (4 Paige, 410,) are directly in point to show that a corporator, though also an officer of the corporation, is not within the rule which excludes a party to the record. It was held that the mayor in the one case, and a trustee in the other, were competent witnesses for the corporation. Several other cases to the same effect are collected in note 37, by C. & H. to 1 Phil. Ev. 48. It must therefore be regarded as settled, that in a suit by or against a corporation, neither a corporator nor an officer can be rejected as an incompetent witness for the corporation, on the ground that he is a party to the record.

It remains to be considered whether Jackson should have been rejected on the ground of interest. He was a member of a municipal corporation, instituted for the purpose of public government within a certain district of country. Though an officer of the corporation, he was not answerable for either the damages or costs which might be recovered, and had no other or different interest in the event of the suit, than every other corporator or inhabitant of the city. If he was not a competent witness for the city, then no inhabitant or citizen is a competent witness for his town, county, or state, when it is a party to a civil suit. It did not appear that Jackson was either a taxed or taxable inhabitant of the city; and it lies on the party objecting to a witness on the ground of interest, to show how he is interested. Unless Jackson was actually taxed, even though a taxable citizen, he was a competent witness within the English cases already cited. And besides, our cases make no'such distinction as that which prevails in England between a taxed and a taxable inhabitant; but whether taxed or not, the interest of a corporator in a state, county, town, or other public corporation, is considered toó remote and contingent to exclude him from being a witness for the corporation. He will be received, unless he has some personal interest beyond that of corporator. (Falls v. Belknap, 1 John. 486 ; Corwein v. Hames, 11 id. 76 ; Bloodgood v. Overseers Poor of Jamaica, 12 id. 285 ; Matter of Kip, 1 Paige, 601; Trustees of Watertown v. Cowen, 4 id. 510.) Cases in other states to the same effect are collected in Cowen & Hill’s Note 37 to 1 Phil. Ev. 48. The distinction is between public and private corporations; members of the first being competent, while members of the other are incompetent witnesses for the corporation. This distinction has ceased to be one of practical importance with us, as interest alone, however direct and certain, is no longer a ground for excluding a witness. (Code, §§ 398, 399.)

Whether we go upon the old or the new law, Jackson was a competent witness, and the common pleas erred in rejecting him.

The child died within an hour and a half after the injury; and I have a strong impression that the father could recover nothing on account of the injury to the child beyond the physician’s bill and funeral expenses. (See Reeve’s Dom. Rel. 291, 377; Ford v. Monroe, 20 Wend. 210.) But the word “ only,” in the charge of the judge touching this question, makes it doubtful how the charge ought to be understood; and I shall not, therefore, examine the point.

The judgment must be reversed on the ground that Jackson was improperly excluded as a witness.

Judgment reversed.


source: Caselaw Access Project

author: Hurlbut, J.

license: Public Domain

text:
    Leavitt, president of the American Exchange Bank, vs. Putnam and others.
    The indorsement of a negotiable note is negotiable without words of negotiability, so that a subsequent holder may sqe in his own name, either upon the note oí indorsement.
    And the rule is the same, whether the indorsement, without words of negotiability, is made before or after the note is dishonored.
    A bill or note does not lose its negotiable character by being dishonored, and the indorsement, although made after dishonor, follows the nature of the original contract, and is negotiable unless it contain express words of restriction.
    Appeal from the superior court of the city of New-York, where the action was against Putnam and others, as the indorsers of a promissory note. The plaintiff was nonsuited on the trial, and after judgment he appealed to this court. (See 1 Sandf, Superior Court Rep. 199.)

      J. W. Gerard, for appellant.
    I. The legal effect of a blank indorsement of a note past due, is the same as that of one bm fore maturity, with but one difference, that, as in the former case, the note can not be presented at its maturity, the contract then is to pay on demand of the maker, his failure to pay, and notice to the indorser, within a reasonable time after the transfer, instead of requiring the performance of those conditions at the maturity of the note. (Berry v. Robinson, 9 John. 121 ; Mitford v. Walcot, 1 Ld. Raym. 574; 2 McCord’s S. C. Rep. 398; Story on Prom. Notes, § 180, and cases cited.)

    II. An indorsement not negotiable in its terms, of a negotiable promissory note, is negotiable by the blank indorsement of the payee named in the first indorsement, (Callen v. Lawrence, 3 M. & S. 95 ; Chitty on Bills, 8th Am. ed. 257, 260; Moore v. Manning, Comyn’s Rep. 311; 1 Selwyn’s N. P. 332, 4th ed. n. 46; Edie v. East India Co. 2 Burr. 1216; 1 H. Black. Rep. 295, S. C.; Havens v. Huntington, 1 Cowen, 387; Rice v. Stearns, 3 Mass. Rep. 225; Guild v. Eager, 17 id. 615; Russell v. Ball, 2 John. 50; Wilson v. Codman’s ex’rs, 3 Cranch, 193; 1 Salkeld’s Rep. 133.) And this is equally the case, whether the indorsement be made before or after the maturity of the note. The analogy noticed in some of the decisions, between the indorsement of a note past due and the drawing of a new draft payable on demand, is intended only to illustrate the rule, as to the time of demand and notice in such cases, stated in the first subdivision of this point, and is for the benefit of the holder, and not to his injury. It is said to be equivalent only to the drawing of a new bill, for the purpose of presentment and notice. In regard to the pleading and legal effect, the instrument is to be regarded as a simple indorsement. (Seabury v. Hungerford, 2 Hill, 80; Upham v. Prince, 12 Mass. Rep. 14; Dean v. Hewitt, 5 Wend. 257; Chitty on Bills, 8th Am. ed. 588; Parsons v. Parsons, 5 Cowen, 476; Young v. Wright, 1 Campb. 139 ; Boehm v. Sterling, 7 Term Rep. 419 ; Chitty on Bills, 8th Am. ed. 266, and cases cited in note (2); Williams v. Field, 3 Salk. 68; Henly v. Adamson, 2 Burr. 674.)

      S. Sherwood, for respondents.
    Paper may be indorsed after due, but it then assumes a new' character and is governed oy new rules. It then becomes as between indorser and indorsee a new draft on the maker for the money in his hands, and is m all respects a new contract, and it may be made negotiable or otherwise as the parties choose; it being a new draft, its negotiable quality and time of payment are not affected by tile old note. The indorsement, in the present case, over the names of the defendants, if any thing, is a new draft, payable to A. Thacher alone, and not negotiable. It gave a right of action to Thacher against the maker, because it transferred it to him. But as a new draft, no terms of negotiability are contained in it, and it therefore possesses none. (Haines v. Huntington, 1 Cowen, 387; Gould v. Eager, 17 Mass. Rep. 615; Callow v. Lawrence, 3 M. & S. 95.) It is a new contract limited to Thacher only, and gives the plaintiffs no right of action. (Brown v. Davis, 3 Term R. 80 ; Berry v. Robinson, 9 John.
      121; Prosser v. Luquer, 4 Hill, 420 to 423; Ketchell v. Burns 24 Wend. 456.)
   Hurlbut, J.

On the 29th day of August, 1844, Messrs. J. W. & R. Leavitt made their note for $1570,52, payable to the order of T. Putnam & Co. (the defendants) eight months after date. A few days after the maturity of the note, the defendants indorsed it as follows: “Pay the within to A, Thacher, value received, May 21, 1845. T. Putnam & Co. ” Thacher indorsed without recourse, and delivered the note for a valuable consideration to the American Exchange Bank, in whose behalf this action is brought.

On the trial the defendants urged, among other grounds of objection to the plaintiff’s recovery, that the defendants’ indorsement was in effect a new draft payable to Thacher only, and not negotiable, so that no action could be maintained upon it in the name of the plaintiff. In this they were sustained by the court, and the plaintiff was nonsuited.

The other objections taken by the defendants on their motion for a nonsuit were not considered by the court below, and under the circumstances of the case can not be noticed on this appeal; so that the only thing for us to consider is, whether the indorsement of a note made after due, differs from one made before maturity in respect to its negotiability 1 It was conceded on the argument that no express authority could be found sustaining the distinction upon which the decision of the superior court was based, but it was urged that the defence could be sustained upon the principle that a dishonored note loses its mercantile character, and its indorsement becomes an original contract which must be made expressly negotiable in terms, or it could not be held to possess the character of negotiability. There is unquestionably a difference between the indorsement of a note after due and one while it is running to maturity, but this relates only to a single point arising from the necessity of the case, to wit, the time of payment, which, in the latter indorsement, is fixed at a future day by the express agreement of the parties, while in the former, it is declared by law to be within a reasonable time, upon demand. But in all other respects the ' contract is the same as an indorsement in the usual course of trade; and it is difficult to perceive how the single difference referred to can at all affect the negotiability of the indorsement. A bill or note does not lose its negotiable character by being dishonored. If originally negotiable it may still pass from hand to hand ad infinitum until paid by the drawer. Moreover the indorser after maturity writes in the same form and is bound only upon the same condition of demand upon the drawer and notice of non-payment as any other indorser. Thus the paper preserves its mercantile existence and retains the main attributes of a proper bill or note, and circulates as such in the commercial community. Exceptions to a general rule affecting so important and numerous a class of transactions as the one under consideration must be productive of great inconvenience, and will not be indulged except for urgent reasons; and nothing has been made to appear in the argument or seems to exist in the case, which warrants the court in treating the ordinary indorsement of a dishonored bill or note as without the law merchant and not negotiable. While it was questioned whether such a note was negotiable, and whether the indorser was chargeable except upon the usual condition of demand and notice, there was perhaps reason enough to sustain the decision of the court below. But since both the note and its indorsement, by a long course of decisions, have been treated as within the law merchant in respect to their main attributes, the indorsement ought to be regarded as negotiable to the same extent as an indorsement before maturity. The latter follows the nature of the orignal bill and is equally negotiable. (Edie v. The East India Co. 2 Burr. 1216; Milford v. Walcott, 1 Ld. Raym. 574; Allwood v. Hazelton, 2 Baylies' S. C. R. 457 ; Bishop v. Dexter, 2 Conn. R. 419; Berry v. Robinson, 9 John. 121.)

The note in the present case was upon its face transferable, and its character in respect to negotiability could only have been changed by an indorsement containing express words of restriction. The defendants’ indorsement was a full one, containing the name of the person in whose favor it was made, but omitting the words “or order” the legal effect of which was, nevertheless, to make the note payable to him or his order, and his indorsement therefore was effectual to transfer the note to the plaintiff. (Chitty on Bills, 136; Story on Prom. Notes § 139.)

I am of opinion that the judgment of the superior court should be reversed, and a new trial awarded.

Judgment reversed.


author: Harris, J.

text:
    Minturn vs. The Farmers’ Loan and Trust Company.
    Usury does not of itself constitute a ground of jurisdiction in a court of equity.
    And the act of 1837, to prevent usury, does not enlarge the powers of courts of equity in this respect.
    Where an action at law was commenced to recover upon a contract alledged to be usurious, apd the defendant in the action filed a bill in chancery praying for an injunction to restrain the proceedings, but alledging no defect in the means of establishing his defence at law, held, that the bill could not be sustained.
    And where it is not shown that the defence is unavailable without the aid of a . court of equity, a bill in chancery can not be sustained for the purpose of restraining an action at law" on the ground that the note or demand in suit was received by the plaintiffs, a corporation, without authority under their charter, or in violation of the restraining act.
    In November, 1842, Minturn filed the bill in this cause against the Farmers’ Loan and Trust Company, praying for an injunction to stay the proceedings in an actiou at law which the company had instituted against the complainant to recover the sum of $5405,51, due from the latter upon a note or promise in writing. The vice chancellor of the first circuit, after hearing the cause on pleadings and proofs, dismissed the bill with costs, and his decision was affirmed by the supreme court on appeal. The plaintiff appealed to this court. The questions in the case are stated in the opinion delivered by Harris, J.

      D. D. Field, for appellant.

      W. Curtis Noyes, for respondents.
   Harris, J.

The most general description of a court of equity is, that it is a court having jurisdiction in cases where a plain, adequate and complete remedy can not be had, at law. . There are exceptions and limitations to this general proposition, but none, I think, which can give such a court jurisdiction of this case. The plaintiff filed his bill to arrest a trial at law, and transfer the litigation to the court of chancery. He asks for no discoveiy, and alledges no defect in the means of establishing his defence at law. The defendants, in their answer, object to the jurisdiction of the court on the ground that the remedy at law is perfect. The objection was in time, and, unless there is something in the grounds upon which the plaintiff has sought the interposition of a court of equity, which gives it concurrent jurisdiction with a court of law, the objection must prevail.

Assuming that the transactions between the parties are correctly stated by the plaintiff, and that they make out a case of usury, yet, before he can transfer the litigation from the court of law in which it had been commenced to a court of equity, it must appear that he will be deprived of some legal or equitable right if the action at law is suffered to proceed. The mere allegation of usury has never been regarded as a ground of equity jurisdiction. No instance can be found in which a court of equity has interfered upon that ground alone.

It seems to. have been supposed by the plaintiff’s counsel that the statute of 1837 (Sess. L. 1837, p. 486, §§ 4, 5) enlarged the jurisdiction of the court of chancery so as to embrace such a case. But such has never been the construction of that statute. This precise question was before the chancellor in Perrine v. Striker, (7 Paige, 598,) where it was held that the act referred to did not authorize a borrower to file his bill in chancery for discovery or relief against an usurious contract, when he had a perfect defence at law. The same view of the statute is expressed in Morse v. Hovey, (9 Paige, 197.) In that case the chancellor says, “the objection, that there is nothing in the bill to show that the complainant has not a perfect defence at law, is an objection which goes to the jurisdiction of the court. Such an objection, when taken in this stage of the suit, is fatal to the complainant’s right to sue here.” The object of the act of 1837, undoubtedly was, to enable a borrower, when for any reason he found himself unable to make his defence at law, and was therefore obliged to resort to a court of equity for discovery or relief, to do so, without the former pre-requisite of paying or tendering the sum actually borrowed. The act did not enlarge the class of cases in which a bill in chancery might be filed, but merely changed the terms, upon which the borrower might obtain relief in that court. When the bill is properly filed, on the ground of the borrower’s inability to obtain perfect relief at law, then, by the 5th section of the act, it is made the duty of the court of chancery, if the usury is admitted, or proved, to proceed to declare the security void, &c. There is nothing in the act which indicates an intention to extend the jurisdiction of the court of chancery beyond the cases which were before cognizable in that court.

Another ground upon which the plaintiff seeks to sustain the jurisdiction of the court of chancery in this case is, that as between him and Murray, the relation of principal and surety existed, and the transactions between the defendants and Murray were such, as to discharge him from his liability to the defendants. If the plaintiff had been a mere surety for Murray, and, without his consent, an arrangement had been made between the defendants and Murray to extend the time for payment, the plaintiff would, undoubtedly, have been discharged from his liability. Such a defence was, originally, available, only in a court of equity, but now, whatever will operate in equity to discharge a surety, on a simple contract, will have the same effect as a defence in an action at law. But the general rule that a court of equity has no jurisdiction where the plaintiff has an adequate remedy at law does not apply to such cases. Having had exclusive jurisdiction originally, that jurisdiction will not ho surrendered because the same defence may now be available at law. (Sailly v. Elmore, 2 Paige, 497.)

But the difficulty in the plaintiff’s case is, that it does not present a state of facts to which this principle is applicable. The transaction in January, 1839, was between the plaintiff and the defendants. Murray was in no way connected with it, and throughout all the subsequent transactions, I think the plaintiff, at least as between him and the defendants, is to be regarded as a principal and not as a surety. He made the original loan, on his own account, and his relation to the defendants was not subsequently changed. The agency of Murray in the transaction seems to have been rather because he was 0 the plaintiff’s debtor, than because the plaintiff was his surety. If, therefore, the transactions between Murray and the defendants can be made available at all, for the protection of the- plaintiff, it must be upon the ground that they amounted to a payment of the defendants’ demand, and not because any thing had been done to discharge him as a surety.

The other grounds of defence upon which the plaintiff relies are, that the defendants had no authority by their charter to receive such a note, and that the transaction was a violation of the restraining act. It is not claimed that either of these is the subject of equitable jurisdiction. I concur, therefore, in the conclusion of the supreme court, that the plaintiff’s bill should be dismissed with costs, but without prejudice to his right to avail himself of any ground of defence set up in the bill upon the trial at law.

The decree improperly omits to provide that the plaintiff may have the benefit of the grounds of defence upon which he relies, upon the trial at law. In this respect it is not in accordance with the decision of the court. Nor did the subsequent amendment of the decree, by consent of the defendants’ counsel, make it what it ought to have been. It is true, the vice chancellor had come to the conclusion that there was no usury in the transaction, but there is nothing which shows that the supreme court were of the same opinion. On the contrary, that court put its decision upon the distinct ground, that no .circumstances are stated in the bill, which require a court of equity to take jurisdiction of the cause. “If,” says Mr. Justice Willard, “-the note or obligation in question is void for usury, or if it has been paid, or if it is void by reason of its being taken in violation of the defendants’ charter, or the restraining act, in either case, the matter is available as a defence to the action now pending at law, on the note, and in that form the cause ought to be heard.”

The proper disposition of this case, in my judgment, is, so to modify the decree of the supreme court, as to dismiss the plaintiff’s bill with costs, upon the sole ground that it is not a case of equitable jurisdiction, and declare that the plaintiff is to be at liberty to avail himself of the grounds of defence, stated in the bill, upon the trial at law, to the same extent as if the bill had not been filed. Neither party should have costs upon this appeal.

Ordered accordingly.


author: Bronson, Ch. J.

text:
    Esterly vs. Cole.
    Although the law does not, in general, give interest upon an open running account for goods sold, yet it may be recovered where there was a stipulated term of credit which.has expired, or where there is an agreement express or implied to pay interest.
    And an agreement to pay interest may be inferred from the course of dealing between the parties, as where it has been charged and allowed under like circumstances.
    So it may be inferred from a uniform practice of the creditor to charge interest, known to the customer at the time o f the dealing.
    So also where there is a general usage in any particular trade or branch of business, to charge and allow interest, parties having knowledge of the usage are 'deemed to contract with reference to it.
    This court, on appeal from a judgment of the supreme court, rendered on a report . of referees, can not review a mere question of fact. The conclusions of fact must be found by the referees or the court of original jurisdiction, and stated in the record, so as to leave for this court nothing to pass upon except pure questions of law.

      This was an action of assumpsit in the supreme court, brought by M. and P. Esterly against Cole, to recover the balance of an account for goods sold, &c. The plaintiffs were merchants at Medina, Ulster county, and the defendant, who resided in the vicinity, was their customer from 1837 to 1840. It was the practice of the plaintiffs to charge interest after six months on goods sold by them, and the referees, before whom the cause was heard, found from the evidence that this fact was known to the defendant. It was also proved that it was the general usage among merchants in that neighborhood to charge interest after six months on their accounts. The proof of this fact was objected to, but the objection was overruled. The referees reported in favor of the plaintiffs for the sum of $1144,03, including over $400 for interest. The supreme court refused to set aside the report, and the defendant appealed to this court. A statement of the facts was entered in the record.

      R. W. Peckham, for appellant

      M. Schoonmaker, for respondent.
   Bronson, Ch. J.

The plaintiffs are merchants, and have recovered interest after six months on an open running account for goods sold and delivered. The law does not give interest in such a case; and it can only be recovered where there was either a stipulated term of credit, which has expired; (Van Rensselaer v. Jewett, 2 Comst. 135;) or an agreement, express or implied, to pay interest.

An agreement for interest may be inferred from the course of dealing between the parties; as where interest has before been charged and allowed under the like circumstances. Also where the creditor has a uniform practice of charging interest, which was known to the customer at the time of the dealing. And where there is a general usage in any particular trade or branch of business to charge and allow interest, parties having knowledge of the usage are presumed to contract in reference to it; and if the usage does not conflict with the terms of the contract, it will be deemed to enter into and constitute a part of it. Knowledge of the usage may be established by presumptive, as well as by direct evidence. It may be presumed from the fact that both parties are engaged in the particular trade or branch of business to which the usage relates; and also from other facts, as the uniformity, long continuance and notoriety of the usage.

The facts found and stated in this case touching the question of interest, are, that it was the practice of the plaintiffs, and the general custom [usage] of merchants in the neighborhood to charge interest after "six months; and that the defendant knew of the plaintiffs’ custom [practice] to charge interest. This means, I presume, that he knew at the time of the dealing; and if he dealt with the plaintiffs, knowing their practice to charge interest, he must be deemed to have assented to the terms, and agreed to pay interest.

But it is said that there was not sufficient evidence from which to find the fact of knowledge. That is a question with which we, as an appellate court, have nothing to do. The court of original jurisdiction may set aside a report of referees when it is either against the weight of evidence, or without sufficient evidence to support it. But an appellate court has no such power. Where the trial was before referees, error can only be brought on a case containing a statement of facts—not evidence—prepared.and inserted in the record by the court of original jurisdiction. The case is in the nature of a special verdict, which leaves nothing for a court of- review but the questions of law arising out of the facts thus stated. We can not inquire whether the court below in the one case, or the jury in the other, has drawn the proper conclusions of fact from the evidence. The first instance of a review in an appellate court, where the trial was before referees, was Reid v. The Rensselaer Glass Factory, (3 Cowen, 387, and 5 id. 587;) and it will be seen that the review was not had on the evidence before the referees, but on a statement of .facts drawn up under the direction- of the court below, and incorporated in the judgment record. I will barely mention a few other cases touching the point of practice. (Feeter v. Heath, 11 Wend. 477; Kauffman v. Copous, 16 id. 478 ; Melvin v. Leaycraft, 17 id. 169 ; The People v. The Superior Court of N. Y. 20 id. 663; McPherson v. Cheadell, 24 id 15.) Several things are established by these authorities: First, that for the purpose of a review in an appellate court, a case containing a statement of facts—not the evidence before the referees, but the conclusions of fact drawn from that evidence by the court of original jurisdiction—must be settled by that court, so as to leave nothing for the appellate court but questions of law arising out of established facts : Second, this case must be inserted in the judgment record, with proper entries to show that the court below was moved to set aside the report of the referees; that the motion was denied, and judgment rendered against the complaining party: Third, if mere evidence is inserted in the case, the appellate court will not pass upon it: and Fourth, the appellate court has no authority to review, in any way, the settlement of the case in the court below ; but must take the facts to be truly stated.

An objection to the admission of evidence remains to be considered. The plaintiffs, in addition to showing their own practice, proved that it was the general usage of merchants in that neighborhood to charge interest after six months. If this had been followed up with sufficient proof that the defendant knew of the usage at the time he dealt with the plaintiffs, it would have made out a case for charging him with interest. As the. usage might form a link in a chain of evidence going to charge the defendant, it was proper to hear it; and the decision of the referees in admitting it did not become improper because the plaintiffs failed to produce the further evidence which was necessary to give effect to the usage.

I understand the word “ neighborhood,” as used in the case, to mean the same town or place where the plaintiffs carried on business, and not a different town or place.

Although I should not be able to concur with the supreme court in finding from the evidence the fact that the defendant knew of the plaintiffs’ practice to charge interest, yet as that fact is stated in the case, which we are bound to regard as prop-, erly settled, I see no error in point of law, and am of opinion that the judgment should be affirmed.

Judgment affirmed.


author: Jewett, J.

text:
    Ely vs. Ehle.
    Where a chattel is tortiotisly taken from the actual or constructive possession of the owner, he may at his election bring trespass de bmis asportatis, or replevin in the cepit.

    And the owner is in the constructive possession of the goods within this rule, although a bailee may, at the time of the tortious taking, have the actual possession.
    If goods be delivered by a carrier or other bailee to a stranger, trespass will not lie by the owner against the person to whom they are delivered.
    But where goods are fraudulently sold by a carrier, and the purchaser takes them without delivery, it seems that trespass or replevin in the cepit will lie by the owner against the purchaser, although he bought the goods in good faith.
    In replevin the plea of non-cepit only puts in issue the taking of the goods, and the place where they were taken, if that is material. Any matter of justification or excuse must be specially pleaded.
    Appeal from a judgment of the supreme court. The case is stated in the opinion of Jewett, J.

      N. Hill, Jr. for appellant.

      L. H. Morgan, for respondent.
   Jewett, J.

This was an action, of replevin in the cepit, for taking twenty-five barrels of flour of the plaintiff from the canal boat J. D. Hawks, in August, 1846, at the village of Canajoharie, being in the custody of one Hays as a common carrier and captain of the boat. The plea was non-cepit, under which the defendant gave a notice that he would give in evidence on the trial—1st. That the flour was his property. 2d. That the flour was the property of Hays; and 3d. That the legal and exclusive possession and right of possession of the flour was in Hays.

On the trial it was proved, that on the day and at the place mentioned in the declaration, the defendant took twenty-five barrels of superfine wheat flour and removed them to his store in Canajoharie, and sold them out to his customers in the Usual course of business. On cross-examination of the witness by whom the taking was proved, he testified that he was a clerk of the defendant at the time; that the defendant purchased the flour in good faith and for a fair price, of Henry Hays, captain of the canal boat in question, who declared at the time that he i-p/i i i-i/ri-it pp!1 And havipp- given evidence tending to ae and place mentionéd, defendant then offered to he purchased the flour in n, and in good faith from [awks, navigating the Erie vidence was objected to as /- ' nd also as immaterial, unhat Hays had authority to at under the plea of non-r was not put in issue, but >re under the pleadings, the f jcondly, it was immaterial, / w that Hays had authority ;. The supreme court sit-grant a new trial, and the dgment. as the evidence offered matortious or unlawful taking another, actual or constructiction, have trespass de bonis ----í . . (Pangburn v. Patridge, 7 John. 140; Thompson v. Button, 14 id. 87; Mills v. Martin, 19 id. 31; Clark v. Skinner, 20 id. 465; Rogers v. Arnold, 12 Wend. 30 ; Barrett v. Warren, 3 Hill, 348; Pierce v. Van Dyke, 6 id. 613.) And it has been held that replevin in the detinet without a demand would also lie. (Cummings v. Vorce, 3 id. 282.) The plaintiff was the owner and had possession constructively, of the flour, although the common'carrier bad a qualified possession. In Barrett v. Warren, it was held- to be a general rule that trespass will not lie against one who comes to the possession of the goods by delivery and without fault on his part, although it should turn out that the person who made the' delivery had no title and was a wrongdoer. And for this rule was cited Marshall v. Davis, (1 Wend. 109 ;) Nash v. Mosher, (19 id. 431;) Wilson v. Barker, (4 B. & Ad. 614;) Viner, Trespass M. pl. 11, 12; Bac. Abr. Trespass E. 2, citing Bro. Abr. Trespass, pl. 48.

In Marshall v. Davis, and Nash v. Mosher, the right to the action was put on the non-consent of the bailee. And it was said if the 'goods be delivered by the bailee, trespass "lies’ not, against the person to whom they are delivered. But if sold or taken without delivery, trespass would lie for the taking; and such is the- distinction which follows from these cases and the cases cited by the court and the original dicta on which they-res t. In Viner, Trespass M. pl. 11, it is laid down that “ If I bail goods to a; man, who gives or sells them to a stranger, and the stranger takes them without delivery, I shall have trespass ; for by the gift or sale, the property is not changed, but by the taking; but if the bailee delivers them to the stranger; I shall not-have trespass.” The like distinction is made in respect to a gift or sale of goods by an infant; if he deliver them trespass does not lie, but if taken without delivery it does. (Viner, Trespass M. pl. 12.) The rule seems to be, that if an infant give' or sell his goods and delivers them with his own hands, the act is voidable only; but if he give or sell goods, and the donee or vendee take them, by force of the gift dr sale, the act is void and the infant may bring trespass. (Fonda v. Van Horn, 15 Wend. 631; 1 Mod. 137; Bac. Abr. Infancy & Age, 1, pl. 3; Roof v. Stafford, 7 Cowen, 179.)

Conceding that this distinction exists and is sound, ’ the evidence offered was clearly not material. For it had been proved, that on making the purchase of the twenty-five barrels of flour, the defendant took and removed them to his store. There is no evidence that Hays did any other act in respect to the flour, than to contract with the defendant to sell it to him; he did not deliver it to him; or at least, there is no evidence that he did. From the evidence of his acts, and the acts of the defendant, the plain inference is, that the latter took the flour by force of the contract of sale, without any actual delivery being made to him by Hays; and according to this well settled distinction, the defendant, by taking and removing the flour to his store, became a trespasser, Hays having no authority to sell. It is enough for the plaintiff to show his title, and the original tortious taking. (Barrett v. Warren, Pierce v. Van Dyke, supra.) The plea admitted the title of the plaintiff; and the proof showed an unlawful and fraudulent sale of the flour by Hays. Under the provisions of 2 R. S. 679, §§ 62, by making such sale he was guilty of a larceny, and if he may be deemed to have broken bulk, (and I think he may,) it was a larceny at common law, (2 Russ. on Crimes, 59, 60, 61,) and either involved a trespass. By selling, Hays put an end to the privity of contract between him and the plaintiff, and trespass or replevin would lie against him ; and it being a rule well settled, that if the defendant took the flour without a delivery by Hays, although .lie purchased in good faith and for a valuable consideration, he stands in no better situation: he is to be deemed as having taken the flour tortiously; and therefore trespass or replevin in the cepit lies against him at the election of the plaintiff.

Having proved the original tortious taking, the cases referred to assert the principle, that it then lies on the purchaser or bailee, in order to protect himself from liability as a trespasser, to shoxv that he came to the possession of the property for a lawful purpose and in perfect good faith, by delivery from the wrongdoer. That being proved, and that he had been guilty of no fault, he would be protected against a liability, as a tortious taker of the property, although, even in that caso, he would be answerable to the owner for the property, in trover or replevin in the detinet, after demand and refusal to deliver ; for he could not acquire any title to the property by his purchase. Hays being a wrongdoer, if he had not only sold, but had delivered the flour to the defendant, the latter would not have acquired any title to it as against the plaintiff thereby, for the obvious reason that Hays did not acquire any himself, by his tort. The evidence offered and rejected was clearly immaterial, so long as it was not proposed to show that Hays was authorized to sell, or to controvert the fact proved, that the defendant took and removed the flour to his store, without any delivery thereof to him by Hays.

The remaining question in the case is, was the evidence offered, if material, admissible under the plea 1 It was not offered as pertinent to establish either branch of the defence, contained in the notice subjoined to the plea. The general issue in replevin in the cepit is non-cepit. It applies to the case where the defendant has not, in fact, taken the goods, or when- he did not take them, or have them in the place mentioned in the declaration. For it may be observed, that the declaration alledges, that the defendant took certain goods of the plaintiff in a certain place,” &c. and the plea states that he did not take the said goods “ in manner and form as alledged.” This at common law involved a denial, both of the taking and of the place in which the taking was alledged to have been, and nothing more. (Bemus v. Beekman, 3 Wend. 667; Smith v. Snyder, 15 id. 324; Bloomer v. Juhel, 8 id. 448 ; The People v. Niagara C. P. 4 id. 216 ; 1 Chit. Pl. 159, 408.) And the same effect is given to this plea by the 2 revised statutes, (528, § 39,) which provides that such plea, when the wrongful taking of the property described in the declaration is complained of, shall put in issue not only the taking of such goods and chattels, but such taking in the place stated, when the place is material; and it is well settled that this plea applies to no other defence. (Stephens' Pl. 161; 1 Chit. 157, 490; 1 Saund. 347, n. 1.). In Wildman v. Norton, (1 Vent. 249,) it was held, if the plea be noiicepit, property can not be given in evidence. The plea in a word admits every fact necessary to maintain the action but one; that is, an actual taking of the property in question by the defendant. That fact being proved, the plaintiff maintains that issue.

I think the rule in an action of trespass de bonis asportatis, when the general issue is pleaded, applies in replevin when noncepit is pleaded; that if the defendant has cause of justification or excuse, he must plead it, and can not give it in evidence under the general issue. The reason for the rule applies as forcibly in replevin as in trespass; it being necessary to prevent surprise, and to enable the parties to go to trial on equal terms, with respect to evidence and proof of facts. (Demick v. Chapman, 11 John. 132.)

My conclusion therefore is, that the evidence offered, if material, was not admissible under the plea. The judgment should be affirmed.

Judgment affirmed.


text:
    Embury and others vs. Conner and another.
    A statute, it seems, which authorizes the transfer of one man’s property to another, without the consent ofthe owner, is unconstitutional and void, although compensation is made.
    But a party may renounce a constitutional provision made for his benefit, and a law therefore, which provides for the transfer of property from one individual to another with the consent of the owner, is not unconstitutional.
    And where such a law does not require the consent to be in writing, it may be manifested by parol acts and declarations so as to effect a transfer of the title to real estate, notwithstanding the statute of frauds.
    The provision in the act relating to the city of New-York, (2 R. L. 416, § 179,) which authorizes the commissioners of estimate and assessment to include in their assessment, the whole of a lot when part only is required for the use of a street, and vesting the title to the whole in the corporation, should, it seems, be so read and construed as to require the consent ofthe owner to the appropriation of the part not required for the public use, and therefore is not unconstitutional.
    And where, under that act, proceedings are taken with the consent of the owner of lands, and are duly confirmed by the supreme court, and the damages paid pursuant to the statute, such proceedings operate as a conveyance and vest the title to the corporation.

      In an action of ejectment where the question is whether the corporation of the city of New-York has acquired title to lands by virtue of proceedings taken under the charter for the purpose of widening a street, the papers used on the application to the supreme court for a confirmation of the report of the commissioners of estimate and assessment and filed in that court, are competent evidence for the purpose of sustaining the proceedings, and may be used to show that the party assailing the proceedings consented to relinquish to the corporation the residue of a lot where the whole is not taken for the public use.
    Where, under such proceedings, the commissioners of estimate and assessment have assessed damages for the residue of a lot as well as the part actually taken for widening a street, the receipt of such damages by the owner is evidence, it seems, that he assented to the proceedings.
    The judgment of a court of competent jurisdiction is final and conclusive upon the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated in the cause and might have had determined. Per Jewett, J.
    A fact put in issue by the record and found by the judgment of a court possessing the requisite jurisdiction, can not be again litigated by the parties or their privies.
    The supreme court exercises the powers conferred upon it by the New-York street laws as a comí and not as commissioners appointed by the legislature. But those powers are wholly derived from the statutes and do not belong to it as a court of general jurisdiction.
    And under those statutes nothing is submitted to the supreme court except the appointment of commissioners and the confirmation of their report, and this involves only t&S fitness of the persons named as commissioners, the regularity of the proceedings of the corporation and of the commissioners, and the justice of the assessment made and reported to the court. Per Jewett, J.
    The order of the supreme court therefore confirming the report of the commissioners is conclusive only in respect to the regularity of the proceedings, and not as to their effect in transferring a title. Per Jewett, J.
    The title in such cases passes to the corporation by force of the statute, and not by virtue of the adjudication of the supreme court. Per Jewett, J.
    Peter Embury, Hannah Ay mar, and Margaret Jacot, brought ejectment in the superior court of the city of New-Yorle, against James Conner and William C. Conner, to recover a lot of land situate at the corner of Ann and Nassau streets in said city. In June, 1791, and until his death in 1815, Daniel Ay-mar was seised of the premises in fee, together with some other lands contiguous thereto, which, in 1829, were taken by the corporation of the city in widening Ann-street. In 1821, the heirs at law of Daniel Aymar, together with the executors of his last will, united in a conveyance of the whole premises of which he so died seised, to Philip Embury, who, in the same year, conveyed them as follows: Two undivided fifth parts to Peter Embury ; two undivided fifth parts to Hannah Aymar; and the residue, being one undivided fifth part, to Margaret Jacot. These persons have continued to be the owners of the premises in question as tenants in common in fee simple, unless they have been divested of their estate therein under the proceedings taken by the corporation of the city of New-York for the widening of Ann-street, and the confirmation thereof by the supreme court.
    On the 22d day of December, 1828, the common council of New-York resolved to widen Ann-street, according to a plan which would take all of the land of which the plaintiffs were so the owners, except the premises in question, and directed their counsel to take the proper steps to carry the resolution into effect. Accordingly, in February, 1829, the mayor, aldermen and commonalty of New-York presented their petition to the supreme court, praying that said court would, in pursuance of the act entitled “ an act to reduce the several laws relating particularly to the city of New-York into one act,” passed the 9th of April, 1813, and also in pursuance of the act entitled “ an act authorizing the mayor, aldermen and commonalty of the city of New-York to close streets and roads,” passed 20th of April, 1818, appoint three commissioners to exercise the powers conferred by those statutes. On the 14th of March, 1829, a rule was granted by the supreme court appointing John Slidell, Cornelius Harsen, and Thomas K Smith commissioners. On the 8th of July, 1829, the commissioners made their report, in which they described the same parcel of land which had been described in said petition, and which did not include the premises in question, as being required for the purpose of widening Ann-street; and they also reported that the devisees of Daniel Aymar were seised in fee of the parcel so described. They further reported that said parcel was part only of a lot of land of the whole of which the said devisees of Aymar were seised in fee, and that they, the said commissioners, deemed it expedient and proper to include and comprise in their estimate and assessment the whole of the residue of said lot of land, in like manner as if such residue was also required for widening the street. The residue mentioned in the report was particularly described therein, and is the premises in question in this suit. The . commissioners further reported that they had assessed the damages to the devisees of Aymar by and in consequence of relinquishing their interest in said parcel of land, including such residue, at the sum of $11,220.
    A copy of said report having been deposited in the clerk’s office of New-York, and notice given, and objections having been made to it, the commissioners, on the 31st day of July, 1829, re-considered it and made an additional report, in which they increased their assessment of loss and damage to $11,370. On the 22d of August, 1829, the supreme court confirmed the report of the commissioners after hearing the objections thereto. On the 27th day of March,. 1830, the corporation conveyed the premises in question to James Conner, for the sum of $4700; and on the 23d day of August in the same year paid said $11,370 to the said Peter Embury, Hannah Aymar and David Jacot, (who was the husband of Margaret Jacot,) and who executed receipts therefor.'
    James Conner, on the 31st day of July, 1835, sold and conveyed the premises to E. Dunkin for $5500. This suit was commenced on the 9th day of March, 1847, the defendants being jn possession. During this time Hannah Aymar remained a single woman, and Margaret Jacot had been a widow from seven to ten years, before this suit was commenced.
    On the trial in December, 1847, Sandford, J. ruled that no title to the premises in question had been acquired under the proceedings for widening Ann-street; and that the receipt by the plaintiffs of the moneys awarded to them as their damages, did not constitute an estoppel in pais, which could be set up in bar of the action. The plaintiffs accordingly had a verdict which the superior court refused to set aside, and after judgment the defendants appealed to this court.

      W. Kent, for appellants.

      E. Sandford, for respondents.
   Jewett, J.

On the part of the defendants, it is claimed, that the facts show that the corporation of New-York acquired the title to the premises in question, and legally conveyed them to James Conner, thereby showing an outstanding title adverse and paramount to that set up by the plaintiffs. On the other hand it is contended that the corporation of New-York did not, by said proceedings, acquire any title to the premises in question, on the ground that section 179 of the act of April 9, 1813, entitled “ an act to reduce the several laws relating particularly to the city of New-York, into one act,” (2 R. L, 416,) contains the only authority attempted to be conferred by law, upon the commissioners of estimate and assessment to include parts of lots not required to be taken for widening or opening streets in their estimate and assessment, and to vest the title thereto in the corporation of the city of New-York, in fee, and that this section of the statute is void, because the legislature assumed to confer a power to take the property of one, without his consent, and apply it to the use of another.

By that section it is enacted that it shall be lawful for the commissioners, so to be appointed by the court, for any of the purposes aforesaid, in all cases where part only of any lot or lots, parcel or parcels of land, or of any other tenements, hereditaments or premises, shall be required for any the aforesaid purposes, leaving a residue of such lot or lots, parcel or parcels of land or other premises belonging to the same owner or owners or parties in interest, to whom the said part thereof so required for such purpose, shall belong, and they the said commissioners shall deem it expedient and proper so to do, to include and comprise in their said estimate and assessment, the whole or any part of such said residue of such lot or lots, or parcel or parcels of land or other premises along with the part of the same so required for the said purpose of the said intended operation and improvement, in like manner as if the said residue, or the part thereof so to be included in the said estimate and assessment, was required for the purpose of making the said operation and improvement so to be made, and all the said part and residue of the said lot or lots, parcel or parcels of land or other premises so included in the said estimate and assessment, and not required for the purpose of making such said operation and improvement, shall,.on the confirmation by the said court of the said report of the commissioners, or such further report as may be made in the premises, become, and be vested in the said mayor, aider-men and commonalty of the city of New-York, and their successors, in fee simple, who may appropriate the same, or any part thereof, to public uses, and shall and may sell and dispose of the residue thereof, or the whole in case of no appropriation of any part thereof for public uses; and in case of the sale of the same, or any part thereof, the proceeds shall be disposed of in the manner and for the purposes as provided for by the next section.

It needs no argument to show that the end and design of this section was not to take private property for the use of the public. It manifestly goes upon the ground that the property so authorized to be taken is not wanted for the. purpose of forming or improving a street, the object in view for which the proceedings are instituted. In the Matter of Albany-street, (11 Wend. 148,) the constitutionality of this enactment came directly under the consideration of the supreme court, on application to confirm the report of the commissioners in that matter. The court then held that if that provision was intended merely to give to the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of it, there could be no objection to it. But if it was to be taken literally, that the commissioners might, against the consent of the owner, take the whole lot, when only a part was required for public use, and the residue to be applied to private use, it assumed a power which the legislature did not possess. This decision went mainly upon the implication contained in the last member of the clause of section seven of article seven of the constitution of 1821, that No person shall be deprived of life, liberty, or prop erty, without due process of law: nor shall private property be taken for public use without just compensation.” Chief Justice Savage said, “ The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the private use of another.” In Bloodgood v. The Mohawk and Hudson Railroad Co. (18 Wend. 59,) Mr. Senator Tracy said the words should be construed as equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.” Bronson, J. in Taylor v. Porter, (4 Hill, 147,) in reference to this question, said, that although he felt no disposition to question the soundness of these views, yet that it seemed to him that the case stood stronger upon the first member of the clause, No person shall be deprived of life, liberty or property, without due process of law.” That the words due process of law” in that place could not mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.

The same doctrine was held in the Matter of John and Cherry streets, (19 Wend. 659,) and by the chancellor in Varick v. Smith, 5 Paige, 137,) and was admitted by all the members of the court for the correction of errors, whose opinions have been reported in the case referred to of Bloodgood v. The Mohawk and Hudson Railroad Company.

I think these decisions should be regarded as having settled the point that a statute is unconstitutional and void which authorizes the transfer of one man’s property to another- without the consent of the owner, although compensation is made. The late Chancellor Kent, in reference to the decision in Taylor v. Porter, says, I apprehend that the decision of the court was founded on just principles, and that taking private property for private uses without the consent of the owner, is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law. (2 Kent's Com. 5th ed. note c, 340.)

But it is insisted that as the enactment is only held to be void on the ground that it takes private property for private uses against the owner’s consent, if the consent be given, all objection on the ground of unconstitutionality is removed. The decisions to which I have referred proceed "upon that principle ; and Mr. Justice Bronson, in Taylor v. Porter, in terms concedes that the objection has no application when the owner consents. If we read the statute in question with a proviso that the owner consent, and I think we should, that consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.

But it is said that even then the statute of frauds (2 R. S. 134, § 6) creates an insuperable difficulty in the way of the defendants, on the ground that such consent not being in writing, the title would still be void under it. But I think not. If the principles held in the case of Baker v. Braman, (6 Hill, 47,) are sound—• and I think that they are—they may be properly applied in this case. It was there held that the owner’s consent took away all objection to the statute in relation to private roads; although the road was an incorporeal hereditament and could not therefore be granted even at common law without a deed, as it was competent for -the legislature to create an exception both to the common law rule and the statute of frauds; and that the legislature had done so by the statute then in question. The action in that case was brought to recover the damages assessed by a jury, for a private road, which the commissioners of highways had laid out through the plaintiff’s lands pursuant to 1 R. S. 517, §§ 77, 78. It was there held that a person might renounce a constitutional provision made for his benefit, and that if a private road be laid out pursuant to the statute, with the consent of the owner of the land, the proceeding was valid, and that such consent need not be in writing; that a parol consent was sufficient; and that the bringing of an action after the road was so laid out and his damages had been assessed, was a sufficient manifestation of consent, and an adoption of the machinery provided by the statute for effectuating the grant. Lee v. Tillotson, (24 Wend. 337,) and The People v. Murray, (5 Hill, 472,) are cases to show that a party may waive a constitutiona. as well as a statute provision made for his own benefit.

As it respects the evidence to show the consent of the owners of the premises in question, to the taking thereof by the commissioners, under § 179, we have in proof their report and additional report, in each of which that fact in substance is asserted. In the report it is as follows : “ We have estimated and assessed the loss and damage to the said devisees of Daniel Aymar, from the said widening and improving of Ann-street, by and in consequence of their relinquishing their interest in the last described piece or parcel of land, which is required for that purpose, and also in the said residue so included and comprised as aforesaid, and in the buildings situated on said two pieces of land, to amount to the sum of eleven thousand two hundred and twenty dollars.” This report was made and signed by the commissioners on the 8th day of July, 1829. And having deposited a copy thereof, and given the notice required by law, for bringing in written objections, and that the same would be presented to the court for confirmation; the commissioners, on the 31st day of July, 1829, made an additional report, in which, after reciting the making of their report, the fact of depositing a copy thereof in the clerk’s office and of giving said notice, they further reported that the objections, papers and documents thereunto annexed, and none others, had been presented to them against their said assessment and estimate in the premises. That after the receipt thereof they reconsidered their estimate, <fcc. in the premises, and were of opinion that the same required correction, and that they did accordingly correct the same by increasing the said sum of $11,220 to $11,370. These reports, pursuant to the notice, were presented to the supreme court for confirmation, annexed to which were several affidavits showing the due publication of the notice, of the signing of the reports by the commissioners, the notice, the written objections of Peter Embury, bearing date the 13th day of July, 1829, and several affidavits showing the value of the premises taken by the commissioners, and an affidavit of J. Slidell, one of the commissioners, made on the 1st day of August, 1829, showing that when the commissi oners first met in reference to the matter of widening and improving Ann-street, Peter Embury appeared before them in behalf of the devisees of Daniel Ay mar, and stated that as the house and lot was undivided among the heirs, it would be better for the commissioners to take the whole lot and not leave the gore of land remaining which would belong, in undivided shares, to said heirs; that the commissioners endeavored to persuade Mr. Embury to retain the gore, but that he persisted, and the commissioners finally concluded that under all the circumstances it was expedient to include and comprise the whole lot in the assessment.

Upon the presentation of these papers and after hearing counsel on both sides, the court confirmed the report of the commissioners. The authority to do so is contained in §178, (2 R. L. 409,) and declares that such report when so confirmed by the said court shall be final and conclusive upon all persons and parties whatsoever. Upon the confirmation being made, the papers on which the application was founded were filed, and became'records of the court in that matter, and as such it was competent to read in evidence on the trial, certified copies of any and each of them. The judge on the trial therefore erred, in refusing to permit the reading in evidence on the trial, Embury’s objections presented to the commissioners, and the affidavit of Slidell. I know of no principle that will shut out, as incompetent evidence on the trial, documents which were competent to be used and were used in the proceedings and on the application for confirmation before the supreme court, and were placed on the files and records of the court, as part of the proceedings, &c. in that matter. All the necessary or proper documents and papers used in summary proceedings in a matter pending before a court of record, although not' proceeding according to the course of the common law, in that particular matter, unless otherwise declared by law, are competent as evidence in an action where the validity of such proceedings is questioned, and they become material to sustain the adjudication in such matter.

These papers, if they had been admitted in evidence, would have shown, satisfactorily, as I think, that Peter Embury at least consented and was desirous that the commissioners should take the premises in question under the authority conferred by § 179, believing that the interests of the owners would be thereby promoted; and if it be shown that he was authorized to represent Hannah Aymar, and David Jacot and Margaret his wife, before the commissioners in that matter, it seems to me that it would be enough to show their consent also; especially when connected with the fact that he, together with Hannah Aymar and David Jacot, subsequently received from the corporation the full amount of the estimated loss and damage, ($11,370,) knowing that it included the whole estimated loss and damage for both pieces of land, which the commissioners took. It is quite as clear a manifestation of the consent of the three to the taking the premises in question, by them, and an adoption of the statute machinery for effectuating the grant of that land, as the manifestation of the consent was held to be in Baker v. Braman, by bringing an action for the recovery of the damages assessed. These proceedings being taken with the consent of the owners and duly confirmed by the court, and the damages paid pursuant to the statute, operate as a conveyance of the land by the owner, and vest the title in the corporation. (Arnot v. McClure, 4 Deuio, 45.)

Should it be objected that Margaret Jacot being a feme covert at the time, was legally incompetent to give consent; the answer is, the legislature had power to remove that disability, and that it has done so, if we read the statute as containing the proviso or condition upon which the commissioners might take such lands, that the owners consent, without making any exception. The evidence in this case was not sufficient to show that Mrs. Jacot ever gave her consent; there is nothing, in fact, beyond the assertion in the reports of the commissioners that the owners relinquished, (fee. There is no evidence that she authorized Peter Embury to represent her before the commissioners, or that she ever received any portion of the money awarded as the loss and damage sustained by the owners, by the taking of the premises in question. She owned the fee of the one-fifth part thereof subject to the life estate of David Jacot, her husband therein. It was as necessary to the transfer of her estate to the corporation, that she should have consented, as it was that her husband should consent to effect a transfer of his interest therein.

But the defendants have made another point. It is insisted that the proceedings for widening Ann-street by the corporation, and their confirmation, after discussion, by the judgment of the supreme court, are conclusive upon the plaintiffs, as an adjudication in respect to their title to the premises taken by the corporation under these proceedings, pursuant to the provisions of the statutes referred to, not having been reversed on certiorari or writ of error; and that they are estopped, by such proceedings and judgment, from claiming title to any portion of the said premises, upon the groitnd that the title to the premises has been adjudged to be in the corporation, the grantor of the defendants, by a court having jurisdiction to adjudicate in a proceeding between the corporation and the plaintiffs, in which the question as to which had or was entitled to the title to the premises, was directly put in issue and determined.

That the judgment or decree of a court possessing competent jurisdiction, is, as a general rule, final not only as to the subject matter thereby actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided, can admit of no doubt. (Voorhees v. The Bank of the U. S. 10 Pet. 449; Le Guen v. Gouverneur, 1 John. Cas. 436; 2 ed. note A, p. 492 ; 2 Smith’s L. Cas. tit. Estoppel, p. 455, note; Outram v. Morewood, 3 East, 346; Etheridge v. Osborn, 12 Wend. 399; Duchess of Kingston’s case, 11 S. T. 261; 1 Phil. Ev. 223.)

The general rule is, that an allegation on record, upon which issue has been once taken and found, and a judgment has been rendered, is, between the parties taking it and their privies, conclusive, according to the finding thereof, so.as to estop the parties respectively from again litigating that fact once so tried and found ; whether it is plead in bar, or given in evidence; when it is proper to be given in evidence. (2 Cowen & Hill’s Notes to Phil. Ev. 804 to 810, 971; Gardner v. Buckbee, 3 Cowen 120 ; Burt v. Sternbergh, 4 id. 559 ; Wood v. Jackson, 8 Wend. 1; Young v. Black, 7 Cranch, 565; Wright v. Butler, 6 Wend. 284; Lawrence v. Hunt, 10 id. 80 ; Eastman v. Cooper, 15 Pick. 276.)

That the supreme court under the provisions of the New-York street law exercises its powers as a court and not as commissioners appointed by the legislature, and that its decisions in such matters are judgments of that court, and ás such, subject to review in the appellate Court, must be regarded as settled. (Striker v. Kelly, 7 Hill, 9 ) S. C. in error, 2 Denio, 323.) But as its powers in such matters are wholly derived from the statutes, and do not belong to it, as a court of general jurisdiction, and its decisions, must be treated like those of a court of special and limited jurisdiction.. (2 Cowen & Hill’s Notes, 946.)

It is, however, of no consequence, in determining the question under consideration, to decide whether the supreme court, in such cases, is to be regarded as acting as a court of general or of limited jurisdiction. For a judgment, whether rendered by a court possessing one or the other jurisdiction, if acting within the scope of its lawful authority, duly observing all the prescribed modes of proceeding, is equally conclusive, not only against future litigation of the same matters, but in all other respects.

To determine the question involved by this point, it becomes necessary to see what matters are referred to the supreme court, in street cases under the laws, for its adjudication, and what are the issues between the parties, because, ordinarily, the parties or their privies are only concluded by a judgment of a court upon such matters as are in issue between them in the cause or proceeding referred to it for determination, and such as they might litigate in the cause and might have had decided.

Under these statutes, there is nothing submitted to the supreme court for its consideration, but the appointment of the commissioners and the confirmation of their report, when presented. This involves only the question of the fitness of the persons named for the appointment as commissioners, and the regularity of the proceedings of the corporation and commissioners, and the justness of the estimate and assessment, made and reported by the commissioners. The question whether the statute (the proceedings being regular and a proper estimate and assessment having been made, reported, and a rule or order entered of confirmation by the court) has the legal effect to transfer to the corporation, the legal title of the owner of the lands proposed to be taken for the purpose of opening, &c. or laying out, &c. or as a residue, <fcc. under sections 178 and 179, is not made, and can not, from the nature of the case as presented for the consideration of the court, be determined. The corporation when it takes these proceedings assumes, that when completed, the title of the owner of the lands will be thereby transferred from the owner and become vested in the corporation ; but if questioned by the owner, it remains, as it seems to me, to be made whenever the corporation or its grantee undertake to assert a right of possession to the premises so taken. Although the statute declares that such report when so confirmed by the said court shall be final and conclusive, as well upon the mayor, aldermen and commonalty of the city of New-York, as upon the owners, lessees, persons and parties interested in and entitled unto the lands, tenements, hereditaments, and premises mentioned in the said report; and also upon all other persons whomsoever ; and on such final confirmation of such report by the said court, the said mayor, aldermen and commonalty of the city of New-York shall become and be seised in fee of all the said lands, tenements, hereditaments and premises in the said report mentioned, that shall or may be so required, for the purpose of opening,” &c. and (as in § 179) all the said part and residue of the said lot or lots, &c. so included in the said estimate and assessment, and not required for the purpose of making such said operation and impro vement, shall on confirmation by the said court of the said report of the commissioners, or such further report as, may be made in the premises, become and be vested in the said mayor, aldermen and commonalty of the city of New-York and their successors, in fee simple;” yet it seems to me, that if the corporation, in the one case, becomes seised, and in the other becomes vested, in fee simple of the lands mentioned, it is by force of the statute, (its provisions being complied with,) and not by the confirmation of the report of the commissioners, by the court, as an adjudication, upon that question. The whole proceeding is but a mode adopted by the state to exercise its right of eminent domain, though a power confided to the corporation of the city of New-York or its officers. The confirmation of the proceedings taken under the statute, in no sense can be deemed an adjudication upon the effect of these proceedings. The order of confirmation has the effect merely to conclude the parties in respect to the regularity of the proceedings taken preliminarily, in order to transfer the title of the owner of the lands proposed to be taken, to the corporation, and does not, as I have before remarked, conclude either party in respect to the question as to the effect. Whether the statute which provides for divesting the title of the owners of the premises in question, and transferring it to the corporation, is or not, constitutional and valid, has not been, and could not properly have been determined by the court, so as to estop the owners from making the question in the action brought for the recovery of the possession of them.

The judgment of the superior court should be reversed, and a new trial had, costs to abide the event.

Ordered accordingly.