author: Hubbs, J.

text:
    M. H. Metal Products Corporation, Appellant, v. Abe April, Respondent.

      (Submitted May 2, 1929;
    decided May 28, 1929.)

      John D. Mithertz for appellant.
    The court erred in dismissing the complaint. (Garrison v. McCullough, 28 App. Div. 467; Hoffman House v. Foote, 172 N. Y. 348.) Parol evidence is admissible to show that the defendant consented to modification of the contract. (Mundy v. Stevens, 61 Fed. Rep, 85; 32 Cyc. 159; Brandt on Suretyship [3d ed.], § 423; Heilman v. City Trust Safe Co., 111 App. Div. 879; Heilman v. Farrelly, 132 App. Div. 151; Pelion v. Prescott, 13 Iowa 567; Spier v. McNaught, 121 App. Div. 330; National Radiator v. Hull, 79 App. Div. 109.) The defendant having consented to the modification of the contract, is estopped from claiming release from liability. (Wheeler, Osgood & Co. v. Everett Land Co., 14 Wash. 630; Lenane v. Mayer, 18 Misc. Rep. 454; Adams v. Way, 32 Conn. 160.)

      Arthur B. Hyman and Joseph C. Slaughter for respondent.
    Changes or modifications in a contract or deviations from the terms and provisions thereof discharge the guarantor from liability. (Page v. Krekey, 137 N. Y. 307; Kingsbury v. Westfall, 61 N. Y. 356; City of Middletown v. Ætna Indemnity Co., 97 App. Div. 344; American Rattan & Reed Mfg. Co., Inc., v. Cone, 198 App. Div. 843; Adriance, Platt & Co. v. Kelley, 171 App. Div. 213; Grant v. Smith, 46 N. Y. 93; Imperator Realty Co. v. Tull, 228 N. Y. 447.) The Statute of Frauds forbids oral changes either in the substance of the contract or in the terms and conditions of performance. (Imperator Realty Co. v. Tull, 228 N. Y. 447; Davidson Coal Co. v. Weston, 209 App. Div. 514; 240 N. Y. 705.) The defendant is not liable for damages for any breach of contract. His guaranty was only “ the acceptance of and payment for ” jacks “ manufactured and delivered * * * in accordance with the terms and conditions of the said contract.” The guaranty was not that- the contract would be fulfilled in all its terms. It was simply a guaranty for the acceptance of and payment for jacks manufactured and delivered. (Creamer v. Mitchell, 162 N. Y. 477; Benjamin v. Rogers, 126 N. Y. 60; Miller v. Stewart, 9 Wheat. 680; Matter of Merrill & Baker, 186 Fed. Rep. 312; National Bank of Commerce v. Rockefeller, 174 Fed. Rep. 22; McAfee v. Wyckoff, 89 N. Y. Supp. 996; 112 App. Div. 892; Kelvin Engineering Co. v. Blanco, 210 N. Y. Supp. 10; Beagle v. Cable, 55 App. Div. 155; Alexander v. Kohn, 188 N. Y. Supp. 459; DeLuka v. Goodwin, 142 N. Y. 194.) The dismissal upon the opening was proper. (Barrison v. McCullough, 28 App. Div. 467; Denenfeld v. Baumann, 40 App. Div. 502; Bowman v. Seaman, 152 App. Div. 690; Sweeney v. O’Dwyer, 197 N. Y. 499.)
   Hubbs, J.

The defendant, by an instrument in writing, guaranteed the payment by the Four-In-One Jack Corporation to the plaintiff for twenty thousand jacks at eighty cents each. The guaranty reads as follows: “ I hereby guarantee the acceptance of and payment for the said twenty thousand (20,000) sets of jacks, if manufactured and delivered by you in accordance with the terms and conditions of the said contract.”

Thereafter the plaintiff manufactured and delivered fourteen hundred and seventy-seven jacks, which were accepted and paid for by the purchaser. Three thousand additional jacks were manufactured and the purchaser refused to accept and pay for them. Seven thousand jacks were finished but not assembled. This action is to recover from the defendant guarantor the damage which the plaintiff suffered because of the failure of the purchaser to pay for the jacks manufactured to the amount-of eighty cents each, and for loss of profits. At the trial the complaint was dismissed on the opening, upon the ground that the plaintiff had released the defendant guarantor by entering into an agreement with the purchaser to change the terms of the contract.

The statement of facts herein is as the jury might have found them under the complaint and the opening of counsel if the case had been submitted to it.

The defendant was the treasurer of the purchaser corporation and a short time after the contract of sale was entered into he stated to a representative of the plaintiff: “ The sockets are somewhat weak and need strengthening.” The plaintiff agreed to make the change at defendant’s request. It was also agreed that such change would cost twenty cents for each jack, making the agreed cost of each jack one dollar instead of eighty cents, as provided in the original contract. The defendant, acting for the purchaser, and in the presence of the representative of the plaintiff, ordered a new die, to be used in maldng the jack as altered, at an agreed price of one hundred dollars to be paid to the man who was to get out the die for the purchaser. The representative of the plaintiff said to the defendant: “ Now, Mr. April, this new jack — the strengthening of this new jack will cost, as you know, about twenty cents more. You have guaranteed eighty cents; will you go on the additional guaranty? ” Mr. April said: “ No, I have guaranteed for eighty cents; if you want some one else to go on the guaranty for the additional twenty cents, you may get someone else.” Two other officers of the purchaser then guaranteed in writing the payment of the additional twenty cents.

It may be stated as a general rule that the obligation of a guarantor is strictissimi juris, and that any alteration of the original contract to which his guaranty applies will result in discharging him from his obligation. A contract of guaranty is required to be in writing under the Statute of Frauds. (Personal Property Law [Cons. Laws, ch. 41], § 31.) Contracts which are within the Statute of Frauds cannot be changed or altered except in the manner which the statute requires in the first instance to make them enforceable. The guarantor may, however, by his agreement and conduct place himself in a position where he cannot avail himself of the defense. The statute does not protect one who by his agreement, acts and conduct, has induced another to incur expense and alter his position to his damage. One cannot take advantage of his own wrong.

The defendant induced the plaintiff to change the construction of the jack, consented to the increase in price, and agreed to remain bound by his guaranty to the extent of eighty cents for each jack. He never notified the plaintiff of any change in his attitude, but induced the plaintiff to go on with the contract to manufacture the jacks relying on his guaranty. He cannot now alter his position and avail himself of the Statute of Frauds. The law will not permit him to take advantage of the statute when his unrevoked affirmative act causes the plaintiff to consent to the change in the contract. Parol evidence may be received to establish the fact that the change in the contract was induced by the affirmative act of the defendant. (Imperator Realty Co., v. Tull, 228 N. Y. 447.)

The guaranty is for the payment for jacks if manufactured and delivered.” Concededly fourteen hundred and seventy-seven have been manufactured, delivered and paid for. The plaintiff seeks to hold the defendant for the payment for jacks which have not been delivered. That was not his contract. He did not contract to pay the damage which the seller might suffer because the purchaser breached its contract. In so far as the action is to recover damages for a breach of the contract and not to recover payment for the jacks delivered, it cannot be maintained. (DeLuka v. Goodwin, 142 N. Y. 194; followed in Beagle v. Cable, 55 App. Div. 155; McAfee v. Wyckoff, 44 Misc. Rep. 380; affd., 112 App. Div. 892; and Whitall-Tatum Co. v. Manix, 61 Misc. Rep. 615.)

The contract between the seller and the purchaser provided: Delivery of said jacks shall be made by the party of the first part [seller] to the second party at the plant of the party of the first part where said jacks shall be manufactured.” The contract also provided that the seller should furnish for the use of the purchaser space in the plant in which to store the jacks manufactured until such time as the purchaser might desire to make deliveries to its customers.

If evidence had been produced which established the fact that the three thousand jacks which were manufactured by the seller had been stored for the purchaser in the space provided and nothing remained to be done by the seller in relation to such jacks, and the purchaser had knowledge of such appropriation of the jacks to its contract and acquiesced therein, the jury might have found, if the question had been submitted to it, that the seller-had made good delivery of the jacks to the purchaser.

The question of whether there has been a delivery of personal property is largely one of intent. Such intent is ascertained from the acts and conduct of the parties. It may develop upon a trial that the jacks had been insured by the purchaser, or it may appear from other circumstances that the three thousand jacks had been conclusively appropriated to the contract by the seller with the assent of the purchaser. (Personal Property Law, §§86 and 100, rule 4; Procter & Gamble Co. v. Peters, White & Co., 233 N. Y. 97; Berkshire Cotton Mfg. Co. v. Cohen, 236 N. Y. 364.)

Upon a trial the evidence may, therefore, present a question of fact as to whether the three thousand jacks had been delivered. If they had been delivered, the guarantor would be liable upon his contract, in the absence of any other defense, to the amount of eighty cents for each of said three thousand jacks. The plaintiff was not permitted to present its evidence upon that question, as the complaint was dismissed on the opening.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur Gaita, Doing Business under the Firm Name of Palm Garage, Respondent, v. Windsor Bank, Appellant.

      (Argued May 1,1929;
    decided May 28, 1929.)

      Walter M. Hinkle and Irving I. Goldsmith for appellant.
    A bank may require and have the protection of a qualified stop payment order. (Usher v. Tucker Co., 217 Mass. 441; American Defense Society v. Sherman National Bank, 225 N. Y. 506; Hiroshima v. Bank of Italy, 248 Pac. Rep. 946; Cohen v. State Bank of Philadelphia, 69 Penn. Super. Ct. Rep. 40; Hahn v. Home Savings Bank of Los Angeles, 32 Banking Law Jour. 783; Elder v. Franklin Nat. Bank, 25 Misc. Rep. 716; Levine v. Bank of the United States, 229 N. Y. Supp. 108; Malatesta v. Saratoga National Bank, 219 App. Div. 752.)

      Henry E. Stohldreier and Gordon Miller for respondent.
    It is well settled by courts of this State that a duty is imposed upon a bank to honor a depositor’s stop payment order, and the bank cannot exact as a condition for the performance of such duty a release from such liability because of its inadvertent failure to comply therewith. (American Defense Society v. Sherman Nat. Bank, 225 N. Y. 506; Elder v. Franklin Nat. Bank of the City of New York, 25 Misc. Rep. 716; Levine v. Bank of the United States, 229 N. Y. Supp. 108; Malatesta v. Saratoga National Bank, 219 App. Div. 752.)
   Hubbs, J.

The plaintiff was a depositor in the defendant bank. He drew and delivered to the payee a check on his account. The next morning, before the check had been presented for payment, he executed and delivered to the teller of the defendant bank a “ stop payment notice,” which reads: “■ Please stop payment on Check No. 220 for $500.00 dated July 1st, drawn by me to the order of Philip Bernstein atty. for E. Schneider & Son Garage Corp. and I hereby agree to indemnify The Windsor Bank against any loss resulting from nonpayment of said check, Should you pay this check through inadvertency, or oversight, it is expressly understood that you will in no way be held responsible.” Five days later the check was paid by the defendant bank and the amount charged against, the plaintiff’s account.

This action is to recover from the defendant bank the amount paid by it and charged against the plaintiff. Thus far the plaintiff has succeeded upon the ground that the check was negligently paid by the bank and that such negligent payment made the bank absolutely liable to its depositor, without regard to the terms of the “ stop payment notice.” The courts below have refused to give any effect to the words: Should you [bank] pay this check through inadvertency, or oversight, it is expressly understood that you will in no way be held responsible.”

Undoubtedly the drawer of a check which has not been certified has a legal right to stop the payment thereof by giving a seasonable stop payment notice to the bank upon which it is drawn, and if the bank thereafter pays such check it is liable to the drawer therefor. That is the bank’s common-law liability. Such liability grows out of the relationship of the parties, which is that of debtor and creditor. After the receipt of an unequivocal notice to stop payment, a bank pays at its peril. (American Defense Society v. Sherman Nat. Bank, 225 N. Y. 506; Florence Mining Co. v. Brown, 124 U. S. 385; Usher v. Tucker Co., 217 Mass. 441.)

The common-law liability of a bank in regard to a specific transaction may be limited provided the limitation has the assent of the depositor. In such a situation the clearly-expressed intention of the parties will prevail and the rule of “ freedom of contract ” will be enforced. (Isler v. National Park Bank, 239 N. Y. 462; Tremont Trust Co. v. Burack, 235 Mass. 398; 27 Columbia Law Review, 294.)

The notice served on the bank by the plaintiff is clear and unambiguous. There can be no mistake in regard to its meaning. The plaintiff, in effect, notified the bank that he had given a check which was valid but that he had changed his mind and did not want the check paid. He said, however, in effect, “ If you [the bank] do pay it through inadvertence, I will not hold you responsible.” He had a legal right to serve such a notice qualifying the bank’s common-law liability, and when the bank paid the check, after receipt of such notice, it did not become legally liable to the drawer in the absence of evidence of willful disregard of the notice.

If a drawer desires to hold a bank to its common-law liability and impose upon it the absolute duty of stopping payment of a check, the notice served on the bank should be positive and unqualified. Then if the bank does not desire to assume the liability imposed by such a notice, it may cancel the account and terminate its relationship with the depositor.

On the other hand, if the drawer serves a qualified or limited notice like the one in question, the obligation of the bank is thereby limited, and it will not be liable to the drawer if the check is inadvertently paid.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


author: Lehman, J.

text:
    The People of the State of New York ex rel. Henry Hirschberg, Appellant, v. The Board of Supervisors of the County of Orange, Respondent.

      (Argued April 15, 1929;
    decided May 28, 1929.)

      Henry Hirschberg, appellant in person.
    Neither the decision of Commissioner Lee nor the Governor on the trial of the charges against the District Attorney were res adjudicóla preventing relator on the audit of his claim producing evidence to establish the truth of such charges on the issues of probable cause and good faith

      and the Board committed reversible error in ruling that such decisions were res adjudicada preventing relator producing such evidence. (Reiss v. Levy, 165 App. Div. 1; Diad v. Shibley, 49 Misc. Rep. 315; Palmer v. Palmer, 8 App. Div. 331; Vanderbilt v. Mathis, 5 Duer, 304; Scott v. Simpson, 1 Sandf. 601; Brownstein v. Sahlein, 65 Hun, 365; Young v. Lyall, 25 J. & S. 39; Stewart v. Sonneborn, 98 U. S. 187; Lewis v. Goldman, 136 N. E. Rep. 67; Burlingame v. Burlingame, 8 Cow. 141.) It was reversible error to refuse to permit relator to introduce testimony of grand jurors and other witnesses in rebuttal of evidence received. (Matter of Osborn, 62 Misc. Rep. 575; Atty.Gen. v. Tufts, 239 Mass. 458; Atty.-Gen. v. Pelletier, 240 Mass. 264.) The reasonable costs and expenses including counsel fees incurred in prosecuting charges against a District Attorney, pursuant to the method directed in this case by the Governor, are legal county charges by virtue of subdivision 16 of section 240 of the County Law. (People ex rel. Hirschberg v. Supervisors, 192 App. Div. 914; People ex rel. Benedict v. Supervisors, 24 Hun, 413; People ex rel. Benner v. Supervisors, 39 Hun, 442; People ex rel. Smart v. Supervisors, 66 App. Div. 66; People ex rel. Nash v. Supervisors, 164 App. Div. 89; People ex rel. Gagan v. Purdy, 173 App. Div. 350; Garvin v. Supervisors, 221 N. Y. 222; Matter of Kane v. McClellan, 110 App. Div. 44; Matter of Duel v. Gaynor, 141 App. Div. 630.) Relator has the right to a judicial trial of his claim against Orange county and at such trial to present any legal evidence in support of the claim and to cross-examine the witnesses against him. He is entitled to a hearing in accordance with due process of law. The most extensive permission heretofore given Boards of Audit by the courts to violate the law of evidence, has not permitted such Boards to deny a claimant the right of producing evidence or cross-examining the witnesses against him. (Bliss v. Supervisors, 39 N. Y. S. R. 313.) There is not one scintilla of legal evidence before this court upon which the finding that relator did not have probable cause for the charges against this District Attorney can be based. The evidence in this record establishes probable cause as ■ matter of law. (Rawson v. Leggett, 184 N. Y. 504; Williard v. Holmes, Booth & Haydens, 142 N. Y. 492; Galley v. Brennan, 156 App. Div. 443; Davenport v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 432; Kutner v. Fargo, 34 App. Div. 317; Burt v. Smith, 181 N. Y. 1; McCarthy v. Barrett, 144 App. Div. 727; Frances v. Tilyou, 26 App. Div. 340; Giesner v. Healy, 86 Misc. Rep. 16.) Probable cause existing as matter of law, no malice or bad faith upon relator’s part, granting for argument’s sake such malice or bad faith existed in making the charges to the Governor, can be considered. (People ex rel. Nash v. Supervisors, 164 App. Div. 89; Conner v. Wetmore, 110 App. Div. 440; Besson v. Southard, 10 N. Y. 236; Bankell v. Weinarch, 99 App. Div. 316; Thompson v. Lumley, 1 Abb. [N. C.] 254; 64 N. Y. 631; Jennings v. Davidson, 13 Hun, 393; Muller v. Mulligan, 48 Barb. 30; Tower v. Dunnegan, 30 Hun, 465; Hill v. Suydam, 6 Barb. 83; Murray v. Long, 1 Wend. 140; Atty.-Gen. v. Pelletier. 240 Mass. 264; Atty.-Gen. v. Tufts, 239 Mass. 458.)

      Percy V. D. Gott and Joseph W. Gott for respondent.
    The Board of Supervisors, acting as a Board of Audit, was not bound by strict common-law rules of evidence. Its determination should not be reversed for error in the exclusion or admission of evidence, if there was sufficient competent evidence to sustain the determination. (Matter of White v. Supervisors, 20 N. Y. 273; Matter of Cochran v. Town Auditors, 74 Hun, 83; Matter of Oppenheimer v. Colwell, 81 Hun, 383; Matter of Morey v. Town Board, 80 App. Div. 280; Matter of Sutliff v. Supervisors, 74 Hun, 251; Matter of Burby v. Common Council, 85 Hun, 601; Matter of O’Shea v. Lantry, 44 App. Div. 392; Matter of McHenry, 140 App. Div. 761; Matter of Delaware
      v. State, 184 App. Div. 691; Matter of Folk v. Board, 69 N. Y. 408; Matter of Clark v. Roosevelt, 168 N. Y. 488; Matter of Greenbaum v. Bingham, 201 N. Y. 343.)
   Lehman, J.

In April, 1919, the relator' preferred charges of serious derelictions against Jonathan D. Wilson, District Attorney of Orange county, and applied to the Governor of the State for his removal. The Governor appointed a commissioner to examine witnesses and take evidence as to the truth of the charges, and to report the evidence and his findings and conclusions. After a hearing the commissioner rendered his report to the Governor in which he stated: “ I recommend and report that the charges have not been sustained and that said charges should be dismissed.” Thereupon the Governor entered a formal order dismissing the charges.

It is provided by section 240 of the County Law (Cons. Laws, ch. 11) that “ The reasonable costs and expenses in proceedings before the governor for the removal of any county officer upon charges preferred against him” are county charges. The relator presented to the Board of Supervisors of the county a claim for his costs and expenses. The Supervisors refused to audit the claim. Upon the application of the relator, an order of mandamus was made at Special Term, directing the Board of Supervisors to audit the claim on the merits. The Appellate Division modified the order by striking out the words on the merits.” Then the Board of Supervisors through a committee heard the relator in support of his claim and after the hearing rejected it.

The determination of the Board of Supervisors has been brought before the courts for review by certiorari proceedings. Concededly, upon the hearing, the rulings in regard to the admission and exclusion of evidence did not conform to the technical rules which ordinarily control judicial officers. The courts have never held that these rules must be strictly applied also by administrative boards when they exercise quasi-judicial functions. (People ex rel. Cochran v. Town Auditors, 74 Hun, 83; People ex rel. Sutliff v. Supervisors, 74 Hun, 251.) Decision is intrusted to men who cannot be presumed to be learned in technical rules of law; common sense dictates the conclusion that they may not be required to apply rules which lie beyond what they may be presumed to know. Their decisions must, of course, be based upon a consideration of the relevant facts and a fair opportunity must be afforded to present to them such facts as should properly enter into their decisions. Even where an officer may be removed only for “ ' some legal cause, to be ascertained and adjudged as matter of fact upon a hearing,’ ” we have said that “ some latitude is allowed as to rules of evidence, methods of examination and the like, but no essential element of a fair trial can be dispensed with unless waived, and no vital safeguard violated without rendering the judgment of conviction subject to reversal upon review.” (Matter of Greenebaum v. Bingham, 201 N. Y. 343.) The traditional yardstick which courts must apply may not prove a suitable instrument for unpracticed hands. Administrative boards, though acting in a quasi-judicial capacity, may employ a yardstick devised by the use of reason and fairness to meet their particular problems. In the review of their determinations, the courts must apply a similar measure.

Here the respondent was called upon to establish that the costs and expenses which he incurred in the proceedings before the Governor for the removal of the District Attorney of Orange county were reasonable ” within the meaning of section 240 of the County Law. If they were reasonable ” the statute made them a county charge, and the Supervisors were bound to audit the claim. True, in the proceedings before the Governor, the charges against the District Attorney were dismissed, but the Legislature has not in terms limited the application of the statute to costs and expenses incurred in proceedings which result in the removal of a public officer. In People ex rel. Benner v. Supervisors of Queens County (39 Hun, 442) and People ex rel. Smart v. Board of Supervisors (66 App. Div. 66) the courts found indications in the history of the statutory provisions that the Legislature intended that unexpressed limitations should not be implied. In the present case no such question is really before us. The hearing was held under an order of mandamus to audit the claim. A board of supervisors may not be compelled by mandamus to audit claims which are not county charges. (People ex rel. Mygatt v. Supervisors of Chenango County, 11 N. Y. 563; People ex rel. Vaughn v. Supervisors of Rensselaer County, 52 Hun, 446; affd., 119 N. Y. 636.) Therefore, the order of mandamus to audit the charges is an adjudication that the respondent’s expenses constitute a charge against the county, if they were reasonable. (See Ashton v. City of Rochester, 133 N. Y. 187; Williamsburgh Savings Bank v. Town of Solon, 136 N. Y. 465, at p. 477.)

At the opening of the hearing the Supervisors announced that they would 11 take testimony as to the reasonableness of the claims and as to the good faith of the claimant Hirschberg in bringing the proceedings.” Doubtless the proceedings brought in 1919 for the removal of the District Attorney of the county had been discussed by the general public and the officials of the county. The claimant Hirschberg had himself been District Attorney of the county from 1916 to 1918. He had been a candidate for re-election in the autumn of 1918. The campaign was bitter. On the face of the returns the claimant Hirschberg was defeated by a small plurality. He charged fraud in the election and after his opponent had been inducted in office he made charges against his opponent before the Governor. All these matters were certainly known to the Supervisors even before they took any testimony. They heard the claimant in support of his claim. Then they rejected it, holding in effect that the charges were brought without probable cause and in “ bad faith.”

It seems to us quite clear that the Supervisors might determine not only whether the charges incurred by the claimant in the proceeding to remove the District Attorney were reasonable in amount, but also whether the proceedings before the Governor were based upon sufficient cause to justify reasonably this claimant in incurring any costs and expenses. Where there is probable cause for believing a public officer guilty of misconduct, the public interest may require a proper presentation of charges, though at the hearing the officer is able to establish his innocence. The Legislature, recognizing this public interest, may provide that the reasonable costs and expenses incurred in the presentation of such charges in proceedings to remove a public officer shall be a county charge. Charges presented without probable cause, for a purpose other than the removal of a delinquent public officer, work harm not only to the officer but to the public. It would be unreasonable to construe the statute in a manner that would make the costs and expenses, incurred in such a proceeding by a malicious defamer of character, a public charge. The language of the statute does not require such construction. The Board of Supervisors were called upon to decide, after a fair hearing of the relevant and material evidence, whether this claimant brought proceedings against the District Attorney in good faith, for the purpose of securing his removal upon - charges which he had reasonable grounds to believe were true.

|,- Here the claimant, defeated at the election for the office from which he sought to have his successful opponent removed, may have been actuated in bringing these proceedings by personal hostile feelings as well as by a desire to serve the public. Indeed, he admitted frankly in his testimony that his motives may have been mixed.

He may have hoped that if his opponent were removed, he would be appointed in his place. None the less, if he believed the charges he made were true, and if he had reasonable ground for his belief, the public interest might be served by a proper presentation of the charges of misconduct. An action for malicious prosecution cannot be sustained if there was probable cause for the criminal prosecution, although it was maliciously commenced. (Besson v. Southard, 10 N. Y. 236; Thompson v. Lumley, 1 Abbott’s N. C. 254; affd., 64 N. Y. 631.) Neither criminal prosecutions nor proceedings to remove a public officer are ordinarily instituted by friends of the accused. Analogy points the way to the conclusion that the Legislature intended that the county should be charged with the reasonable costs and expenses of a citizen who institutes a proceeding for the removal of a public officer in all cases where such proceedings are brought in good faith in the belief, founded upon probable cause, that the officer is guilty and should be removed, though malice may have furnished the motive for bringing the proceedings.

Upon the present record there is no basis for any inference that, whatever motives may have caused the claimant to present charges to the Governor, he did not believe the charges to be true and did not in good faith seek to have the District Attorney removed. The return itself shows beyond question that the contrary finding of the Board of Supervisors is founded upon a misconception of the meaning of the term “ good faith.” That error might, however, be unimportant, if the finding of the Board that the proceedings were not based on probable cause can be sustained. We must examine the record to determine whether that finding is based upon sufficient evidence after a fair trial.

The record is too long and the facts are too complicated to permit an adequate statement and analysis of the facts within the reasonable limits of a judicial opinion. We refer only in barest outline to the facts shown by this record. It appears that before the election the claimant as District Attorney employed at the public expense a detective agency from New York city to obtain evidence of election frauds. Probably he hoped to obtain such evidence against his political opponents. He received reports from the detectives that there was widespread fraud and criminal misconduct in the election. Many residents of the county, of standing and prominence, including two members of the Board of Supervisors, were implicated. He presented some of the evidence to the United States Attorney, and some of the accused were indicted by the Federal grand jury, though none were convicted. He made formal charges of criminal misconduct, before a magistrate, against those accused in the detectives’ reports. Almost all waived examination and were held to answer the charges. Until this time the successful candidate was not implicated in the alleged frauds and misconduct in connection with the election, but he did appear as counsel for one of the accused before the magistrate. Then the detectives reported to the claimant as District Attorney that his successful opponent was endeavoring to induce prospective witnesses before the grand jury to withhold testimony. The claimant made a formal charge, before a magistrate, against the District Attorney-elect of attempted subornation of perjury. A hearing was held. The detectives testified against the accused. The accused presented testimony of several witnesses in contradiction. The magistrate thereupon discharged the accused, either because he did not believe the witnesses against the accused, or because he held that their testimony did not show that a crime had been committed.

•The claimant as District Attorney presented to the December grand jury the evidence against a number of the accused who had waived examination. The grand jury refused to find a true bill against any of them. The claimant then refrained from presenting to the December grand jury the evidence against the others, though he had opportunity to do so. On Decémber 31st, 1919, his term of office expired. He took with him some of the papers which should have remained in the public files. Perhaps they were necessary for the presentation to the Grand Jury of the charges not, passed upon by the December grand jury. The January grand jury on January 3d, 1919, dismissed all charges not previously dismissed against the accused who had waived examination.

The claimant Hirschberg asked the Governor to order an investigation through the Attorney-General before a special grand jury of alleged misconduct of officers of Orange county. He was advised to present formal charges.. He did so and the' Governor appointed a commissioner to hear them. The appointment of the commissioner by the Governor, of course, constituted no adjudication that the charges were based on probable cause. Neither did the dismissal of the charges by the commissioner and the Governor constitute an adjudication that probable cause was lacking.

At the hearing before the Supervisors, now under review, the Supervisors received in evidence the entire record, including the testimony of witnesses and the opinion of the commissioner appointed by the Governor, upon the hearing held before him. They also received in evidence the records of the hearing before the magistrate upon the charge of attempted subornation of perjury made against Wilson, the successful candidate for District Attorney; also the record of a hearing before the Supervisors of a claim for payment for services rendered by the detective agency employed by the claimant Hirschberg as District Attorney. They based their finding of want of probable cause largely upon the testimony given at these hearings.

We find no reversible error in the admission of these records. True, the claimant was not bound either by the testimony produced, or the decision rendered, in proceedings to which he was not technically a party; but in all these proceedings he took an active part in the presentation of the case and from all the circumstances the inference might reasonably be drawn that if other relevant testimony had been available, it would have been produced at these hearings. If the testimony produced upon these hearings showed no probable cause for the claimant’s charges of misconduct against the District Attorney, that fact would itself be significant. That fact might be explained or supplemented by other testimony. The claimant might show that testimony produced at these hearings was false or incomplete, but quite regardless of any technical rules of evidence, it cannot be said that the content of these records was without probative force and that the claimant could not be called upon to show, at least, that he had other relevant evidence which he did not produce upon these hearings. The error of the Board of Supervisors which cannot be overlooked is .that it precluded the claimant from producing such evidence.

The charges the claimant made against the District Attorney were, in effect, that he wrongfully protected accused whom it was his duty to prosecute. Undoubtedly he did appear as counsel for one of the accused at the magistrate’s hearing after his election as District Attorney. The commissioner who heard the charges held that.this constituted merely an indiscretion which was not serious in itself. That may well be true, yet it is a circumstance which must be weighed in determining whether the claimant had probable cause for his charges to the Governor. All complaints against those accused of criminal misconduct which had not been presented to the grand jury before the new District Attorney took office were presented by him and dismissed by the January grand jury in the first few days of his term of office. Such speed may show a commendable zeal on the part of the new District Attorney, yet such speed is unusual. Fault may not be imputed to the new District Attorney merely because he proceeded with unusual speed or because the grand jury failed to find a true bill against any of the accused. No inference of probable cause for the charges against the new District Attorney may be drawn from such facts alone. If probable cause nevertheless existed it must be shown by other evidence.

It is said that the refusal of the December grand jury to indict the accused against whom the claimant as District Attorney presented evidence and the failure thereafter of the claimant to present to the same grand jury the evidence in his possession against the other accused who had waived examination by the magistrate, indicate that there can be no basis for any charge against the new District Attorney that he did not honestly seek indictments against wrongdoers. It is further said that if the District Attorney failed to present to the January grand jury all the evidence that existed against the accused, the claimant himself is at fault because he did not hand over to his successor the evidence he had gathered.

Such circumstances are by no means conclusive upon the issue of lack of probable cause, if indeed they have, in this case, any probative force. It may be that the evidence presented to the December grand jury against some of the accused was so strong that its failure to indict may have justified the claimant in believing that it was not acting impartially or honestly, and that no other indictments should be sought from it. Perhaps the claimant had other information which justified his failure to present all his evidence to that jury. Upon such matters the record furnishes no fight. Then, too, we are not informed as to the evidence which the new District Attorney presented to the jury or as to the steps which he took to obtain an indictment. If the new District Attorney was handicapped by the removal of some official papers by the claimant from the public files, then his haste in presenting to the grand jury an incompíete case against the accused on the third day of his term of office might well be regarded as, at least, unseemly.

The charges which the claimant made against his successor in office were, it must be conceded, not sustained by the evidence presented at the hearing before the commissioner. The commissioner might well hold that the clear preponderance of the evidence received by him lay with the accused. Neither the supervisors nor this court have any reason to doubt his innocence. No such issue is now presented. Not the truth of the charges, but the probable cause for bringing the proceedings against the accused, concerns us. The claimant in making the charges knew that he had evidence in his possession of criminal wrong against influential residents of the county; that one of the persons accused was represented by the District Attorney-elect; that others waived examination and that thereafter the grand jury refused to indict; and that all complaints which had not been passed upon by the December grand jury were submitted to and dismissed by the January grand jury within three days after the new District Attorney took office. What else the claimant knew about the action of the grand jury or the proceeding taken either by himself or his successor before the grand jury, he was not permitted to show, either at the hearing before the commissioner or at the hearing now under review.

The claimant was told by the Supervisors that he must show reasonable cause for his charges and his own good faith. Without testimony of what transpired in the grand jury room he could prove neither. Except, perhaps, as to the charge of attempted subornation of perjury, the record does not show that the charges were without probable cause or that the claimant did not in good faith believe them, unless inference to that effect may be drawn from the evidence that the grand jury refused to indict those accused of criminal wrong, and the Governor, upon the report of his commissioner, dismissed the charges against the public prosecutor. The refusal of the Supervisors to take testimony as to the proceedings of the grand jury, in effect was a denial to the claimant of the right to prove the validity of his claim.

That refusal was based upon the ground that the secrecy of the proceedings of the grand jury must remain inviolate. Public policy has dictated that proceedings before the grand jury must be secret. There are sound reasons for the rule, but where these reasons have ceased to operate, it is the better opinion, contrary perhaps to some cases, but maintained in most, that any revelations of the grand jury’s doings which justice demands, may be made ” (Bishop, New Grim. Proc. 857); Wigmore in his treatise on Evidence (§ 2362) states, after a critical examination of the relevant judicial decisions, that “ This is, in effect, the law as generally accepted to-day.” Undoubtedly The tendency of modern authorities has been to' hold that when the reasons for secrecy no longer exist the ancient rules with reference thereto do not apply, and, in all cases where justice or the rights of the public require it, the facts should be disclosed.” (Stale v. Campbell, 73 Kansas, 688. See, also, decisions collated in the opinion in that case and in notes to Wigmore on Evidence, §§ 2360-2363.)

Where a District Attorney is charged with official misconduct, the reasons for refusal to apply the rule of secrecy are peculiarly strong. “ He cannot seek shelter behind that rule of secrecy to prevent inquiry into his malfeasance or misfeasance in office. When the reason for the rule of secrecy ceases, the rule itself becomes inoperative. Any other principle would permit a dishonest, corrupt and vicious district attorney to use the great power of his office and his influence with the grand jury as an engine of oppression and be entirely safe from inquiry under a seal of secrecy which would prevent investigation. That is not the. law. That would be perversion and not enforcement of the rule.” (Attorney-General v. Pelletier, 240 Mass. 264.)

In New York, as in most jurisdictions, the general rule is safeguarded by statutory prohibitions. (Code Crim. Pro. §§ 265, 266 and 952; Penal Law, §§ 1783 and 1784.) We are not in this case called upon to determine the circumstances under which the court may require production of the stenographer’s minutes of the grand jury proceedings. We pass only upon the competency of the jurors as witnesses to proceedings of the grand jury.

The statute makes one express exception to the secrecy which the grand jury must maintain. (Code Crim. Pro. § 266.) The expression of one exception does not indicate that the general rule applies even when the reason for the rule fails. The statutes are partly declaratory of the rule previously applied by the courts. They should not be construed as intended to interfere with the established practice as to the limitation of the application of the rules. (Murphy v. State, 124 Wisconsin, 635; Jenkins v. State, 35 Florida, 737; State v. Campbell, supra.) For these reasons we hold that the Supervisors erred in refusing to take the testimony of the grand jurors. Without such testimony there was no basis for any determination of the question whether the proceedings to remove the new District Attorney were based upon probable cause.

We have not discussed the question of whether the Board of Supervisors erroneously rejected also other evidence which the claimant wished to present. Perhaps the offer of such testimony was too indefinite to raise any question of law. Certainly where the claimant can show that there is reasonable probability that any witnesses could give testimony supplementing or changing the testimony embodied in the records, which the supervisors received in evidence, such evidence should ordinarily be received. At the original hearing the question of the admission of such testimony may have been complicated by the possibility that some witnesses if compelled to testify might thereafter claim immunity .from prosecution for a crime. Lapse of time has removed that possibility. We do not now determine its effect at the time of the hearing under review.

We express no opinion about the merits of the claim of Mr. Hirschberg. We are constrained to reverse the determination of the Board of Supervisors because the Board has found that his charges to the Governor were made without probable cause and in bad faith, though the evidence does not affirmatively sustain the findings and the claimant was not permitted to prove his case. Rejection of a claim must be preceded by a fair opportunity to the claimant to prove its merits. In the eyes of the law there is no hearing unless such opportunity is afforded. Though technical legal rules of evidence and procedure may be disregarded by administrative boards, when they act in a quasi-judicial capacity, yet they must preserve the rights of those appearing before them to an adequate and fair hearing, and must act upon evidence which has some probative force. Our system of justice makes that an essential.

It is fair to say that the record does not in our opinion demonstrate that the Supervisors did not intend to act fairly towards this claimant. The ground for their rulings and decision appears in their own return. They misconceived the scope of the statute and the questions of fact upon which their decision must be based. The statute does not intend that a claimant may recover from the county his expenses in proceedings to remove a public officer where the claimant has brought the proceedings without probable cause, or without honest belief that the proceedings should result in the dismissal of a faithless public servant. Unless it appears that the claimant so acted in this case, his costs and expenses reasonably incurred are a county charge. The claimant is entitled to a fair and full hearing upon that issue, and his claim must be audited on the merits unless the evidence received justifies a finding against him.

The order of. the Appellate Division should be reversed and the determination of the Board of Supervisors annulled, and a new hearing ordered, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Order reversed, etc.


text:
    Alfred Ekelman, Respondent, v. Gerardo Marano et al., Defendants, and G. Marano Realty Corporation, Appellant.
    (Argued April 19, 1929;
    decided May 28, 1929.)

      A. J. Oishei Hoschek for appellant.
    The trial court committed reversible error in permitting the plaintiff to testify regarding his services, and the reasonable value thereof, in two actions in which he had merely interposed answers containing no counterclaims, and in accordance with section 475 of the Judiciary Law no lien arose in his favor. (National Exhibition Co. v. Crane, 167 N. Y. 505; Fromme v. Union Surety Co., 39 Misc. Rep. 105; Matter of Rowland, 55 App. Div. 292; Horn v. Horn, 115 App. Div. 292; Crossman v. Smith, 116 App. Div. 791.)

      Walter P. Vining for respondent.
   Lehman, J.

The plaintiff was employed by Maria Maraño to represent her as attorney in two actions brought against her by her husband, Gerardo Maraño, to divest her of all right, title and interest in two pieces of real property which stood in their joint name. Mrs. Maraño signed the following written retainer:

I hereby retain Alfred Ekelman to determine my rights in certain lots known as lots 65 and 66, South Marlboro, Brooklyn, and in premises 6918 Fort Hamilton Avenue, Brooklyn, held jointly by me with my husband, Gerardo; and in the event that a cash settlement is procured I agree to pay him a reasonable counsel fee over and above any allowance by the court; and in the event that he cannot get a cash settlement I agree to give him one-third of my one-half when I get it.
“ MARIA MARAÑO.”

The plaintiff, as attorney, interposed answers in these two actions and served notices of trial. Then the plaintiff, as attorney, brought an action in behalf of Mrs. Maraño aga nst her husband for an accounting of the rents, issues, and profits arising from one of the pieces of real property held in the joint names of husband and wife. In that action a receiver of the rents, issues and profits was appointed, but it does not appear that he ever received any moneys or property. When that action was called for trial, an attorney for the husband answered “ Settled.” Upon a search of the title to the two properties which had been held in the joint names of husband and wife, the plaintiff discovered that, while he was acting as attorney for the wife, she had joined with her husband in a transfer of the properties to the defendant G. Maraño Realty Corporation. The defendant Gerardo Maraño is a stockholder and director of the corporation. His wife, Maria Maraño, has failed to pay any compensation to the plaintiff for his services as attorney and has removed from the State.

The plaintiff has brought this action, praying “ that his hen by reason of the aforesaid services as attorney for the defendant Maria Maraño be ascertained and foreclosed against the defendants and each of them.” At the trial the court fixed the value of his services in the three actions at the sum of $1,000. Judgment in his favor was thereupon entered, adjudicating that the plaintiff has a lien against the real property transferred to the corporate defendant for the value of such services and for plaintiff’s disbursements in the three actions in which plaintiff acted as the attorney for Maria Maraño, and decreeing that the property, or such part thereof as shall be sufficient to discharge such lien, should be sold at public auction.

An attorney who appears for a party has a hen upon his chent’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his chent’s favor, and the proceeds thereof in whosoever hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment or final order.” (Judiciary Law [Cons. Laws, ch. 30], § 475.) In the two actions brought against the plaintiff’s client by her husband, the plaintiff had no lien which could attach to any judgment or the proceeds thereof, for the answer contained no counterclaim. (National Exhibition Co. v. Crane, 167 N. Y. 505.) Attack in those actions was made upon the title of the wife. Even a judgment in her favor would give to the plaintiff’s client no money or property which she did not possess before the attack was made and repulsed. The attorney’s services would not bring into existence any fund, and for the services rendered in meeting the attack the attorney had no charging lien at common law and the statute has created no lien. (Matter of Heinsheimer, 214 N. Y. 361.) Any hen which the plaintiff may have would be confined to the value of his services in the action for an accounting of the rents. There is no evidence or finding as to the value of the plaintiff’s separate services in that action.

Moreover, plaintiff’s lien in that action could not attach to the premises transferred to the corporate defendant. The complaint in that action rested upon the claim that the wife was a tenant by the entirety. Even if the action had been terminated by judgment in the wife’s favor, the decree could award to her only one-half of the rents, issues and profits received from the property. The parties to the action could at any time have joined in a conveyance of title to the property, and such a conveyance would not itself have defeated, or even affected, the wife’s right to a decree for an accounting of the rent. No lien could attach to the property itself, for the property could never become the proceeds of a judgment. Here there was no decree in the wife’s favor, and there is no evidence that, upon the settlement of the action, any property or money was paid to the wife. It does not appear that there is any fund now in existence upon which the plaintiff’s hen would attach. The plaintiff’s lien as attorney, therefore, is confined to the wife’s cause of action against her husband. The statute expressly declares that his hen cannot be affected by any settlement of the parties. The action has never been formally discontinued. The husband has not been discharged by a collusive or fraudulent settlement. (Matter of Heinsheimer, supra.) In such case the plaintiff may still proceed and enforce his hen upon the wife’s cause of action. (Hart v. Mayor, etc., of New York, 69 Hun, 237; affd., 139 N. Y. 610.)

In this action the allegations of the complaint and the proof upon the trial are insufficient to permit the court to grant any rehef. The judgment of the Appellate Division and that of the Special Term should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Found, Crane, Kellogg. O’Brien and Hubbs, JJ., concur.

Judgments reversed, etc.


text:
    Clara M. Cramer, Respondent, v. Melanchthon W. Perine, Appellant.

      (Argued April 29, 1929;
    decided May 28, 1929.)

      J. Neil Mahoney for appellant.
    The division of lands as made is contrary to law and inequitable to the defendant. (Townsend v. Hoyt, 51 N. Y. 656; Jackson v. Diefendorf, 1 Caines, 483; Mann v. Pearson, 2 Johns. 37; Voorhees v. Burkhard, 55 N. Y. 98; Jeffries v. East Omaha Land Co., 134 U. S. 178; Tarbell v. West, 86 N. Y. 280; Murray v. Ballou, 1 Johns. Ch. 565; Jackson v. Post, 15 Wend. 588; Thompson v. Simpson, 128 N. Y. 270; Sage v. Cartwright, 9 N. Y. 49; Thayer v. Finton, 108 N. Y. 394.) The general rule for division of accretions is not of rigid application and should be applied or modified according to the circumstances of the case. (Glover v. Shields, 32 Barb. 324; Hastings v. McDonough, 43 N. Y. Supp. 628; Jackson v. Freer, 17 Johns. 29.) The intent of the common grantor Dow as expressed in the respective conveyances of 1904 is controlling and the express language as set forth in both conveyances sustains the defendant’s claim of title. (Matter of New York, 212 N. Y. 325; Halsey v. McCormack, 92 N. Y. 463; Starr v. Child, 5 Denio, 599; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27; Kingman v. Sparrow, 12 Barb. 201; Child v. Starr, 4 Hill, 369; Thompson v. Simpson, 128 N. Y. 270; Sparrow v. Kingman, 1 N. Y. 242; Perkins v. Storrs, 114 App. Div. 322; Stoddart v. Weston, 53 Hun, 634.)

      Elijah W. Holt for respondent.
    The decision of the trial court is a just and correct determination of the division of the accreted lands. (Calkins v. Hart, 219 N. Y. 145; People v. Woodruff, 30 App. Div. 43; Mulray v.
      Norton, 100 N. Y. 459; Knickerbocker Co. v. Schultz, 116 N. Y. 388.)
   Lehman, J.

In 1888 one William A. Umlauf was the owner of land in the city of Buffalo in a block bounded by Yale Place, Seneca Street, Princeton Place and Cazenovia Creek. He plotted these lands, and a map thereof was made in 1888 and filed in March, 1889, in the office of the county clerk of Erie County. Yale Place and Princeton Place are parallel streets, and all the lots, as plotted, front on one of these streets and extend to the middle line of the block, parallel to these streets. On February 3d, 1896, Umlauf conveyed to William Law all that tract or parcel of land situate in the City of Buffalo, County of Erie and State of New York * * * being subdivision lots numbers 86 and 87 of a tract of W. A. Umlauf according to a map and survey on file in the Erie County Clerk’s Office under Cover 330.” An examination of the map referred to in the deed shows that these lots fronted on Yale Place and extended to the middle of the block. Their northwest boundary was Cazenovia Creek. Thereafter, by deed dated March 27th, 1896, Umlauf conveyed to Peter Klas the lots fronting on Princeton Place which extend to Cazenovia Creek. Prior to 1904 William Law and Peter Klas respectively conveyed to John L. Dow the premises owned by each. Through these conveyances John L. Dow became the owner of all the lots between Yale Place and Princeton Place which lie along Cazenovia Creek.

Both the plaintiff and the defendants derive title to any lands which they may own from John L. Dow through mesne conveyances. By deed dated and recorded on January 22d, 1904, he conveyed to James J. Chown, the defendant’s predecessor in title, Subdivision lots numbers 86 and 87 of a tract of W. A. Umlauf according to a map and survey on file in the Erie County Clerk’s Office under cover 330.” The same description had been used in the prior conveyances of the lots fronting on Yale Place and extending to Cazenovia Creek, in the deeds from TJmlauf to Law and from Law to John L. Dow. It appears, however, that during the period between 1888, when the map and survey referred to in the deed was made, and January, 1904, when John L. Dow conveyed the lots to James J. Chown, the line of Cazenovia Creek had gradually changed, and considerable land had been added by accretion to the lots fronting on Cazenovia Creek. These accretions, of course, were not within the limits of lots 86 and 87 as defined on the map. The deed to Chown expressly provided that the lots were conveyed together with all the right, title and interest that the party of the first part has in and to the Cazenovia Creek abutting on or adjoining the above described premises.”

By deed dated and filed February 18th, 1904, Dow conveyed to Isidor Weber, plaintiff's predecessor in title, the lots along Cazenovia Creek fronting on Princeton Place and extending to the middle line of the block: “ Beginning at a point in the westerly fine of Princeton Place at a distance of eight hundred forty feet south of its intersection with the southerly line of Seneca Street, running thence southerly along said Princeton Place to the point of intersection of said Westerly fine of Princeton Place and the waters of Cazenovia Creek, thence westerly and northwesterly down the stream of Cazenovia Creek and along the bank thereof to a point where a line intersecting the point of beginning at right angles would intersect said bank of Cazenovia Creek, thence easterly on a fine at right angles with Princeton Place to the point of beginning.”

Dow drew the description of the deed to plaintiff’s predecessor in title, like the description of the deed to defendant’s predecessor, from the deeds made by TJmlauf and the deeds from his grantees to Dow. On the map filed by TJmlauf in 1888, from which the description was undoubtedly originally taken, the point on the bank of Cazenovia Creek where a line intersecting the point of beginning at right angles would intersect said bank of Cazenovia Creek ” is exactly at the middle line of the block between Yale Place and Princeton Place. The bank of the creek north of the middle line of the block was the boundary of the lots fronting on Yale Place, now owned by the defendant. The bank of the creek south of that line was the boundary of the lots fronting on Princeton Place, now owned by the plaintiff. In 1904 the accretions to the lots fronting on Cazenovia Creek had resulted in pushing the shore line of Cazenovia Creek a considerable distance to the west. Then the point on Cazenovia Creek where a line intersecting the point of beginning at right angles would intersect said bank of Cazenovia Creek lay north, not only of the middle fine of the block, but north of the whole block. The description of the lots conveyed to the plaintiff’s predecessor in title, as contained in that deed and as applied to the conditions existing at that time, would make the bank of Cazenovia Creek the boundary of the lots conveyed for its entire course through or alongside of the block between Princeton Place and Yale Place, if both were extended in a straight line. It would include land even outside of that block and it would completely exclude the grantee of the lots fronting on Yale Place from any access to the creek within that block though “ adjoining or abutting ” upon the lots previously conveyed to him.

The description in the deed made in February, 1904, by Dow, which was derived from the map made and filed many years before, does not fit conditions created by accretions during the years which had elapsed since the map was filed. The deed to defendant’s predecessor in title was made before the deed to plaintiff’s predecessor in title. The prior deed, as we have already pointed out, conveyed Dow’s right, title and interest in and to the Cazenovia Creek abutting on or adjoining ” the lots describbd in the deed. The title of the grantee under that deed has passed to the defendant. The grantor, Dow, could not change the effect óf his conveyance by any subsequent grant to the plaintiff’s predecessor in title. The only title which the subsequent grantee could acquire from Dow in land abutting on the creek or in the creek itself, was the title remaining in Dow after he had parted with all his title “ in and to the Cazenovia Creek abutting on or adjoining ” the lots north of the middle line of the block and extending to Yale Place, as shown on the filed map.

The defendant, who owns the lots on Yale Place, construing these words in the deed as intended to convey the grantor’s title to the bank of the creek lying between Yale Place and the middle fine of the block, has occupied all the land between his lots and the creek within those lines. The plaintiff, who has acquired title to the lands fronting on Princeton Place, has brought this action in ejectment to recover possession of that part of the lands occupied by the defendant which is included within the language of the description of the land conveyed by Dow to her predecessor in title.

It has been said that in this state and in most of other jurisdictions where the common-law rule obtains, the rule has been established that as between adjoining owners on non-navigable streams and rivers, each owner takes title ad medium filium aquce, in proportion to his line on the margin in front of his upland according to straight lines drawn at right angles between the side lines of his land on the shore and the center line of the stream.” (Calkins v. Hart, 219 N. Y. 145.) Division of land formed by accretions along the bank in front of the premises of several adjoining proprietors has in many jurisdictions been made by the application of an analogous rule, in the absence of special circumstances which would make the application of such a rule inequitable. Under that rule, new land has been divided by drawing straight lines from the division points on the old front at right angles to the bank or thread of the stream. (See Tiffany on Real Property [2d ed.], § 543; Farnham on Waters and Water Rights, § 841, and cases cited in these works.)

In this case the Appellate Division has divided the land in dispute by the application of a similar rule. In effect that court has held that when, in 1904, Dow conveyed to the defendant’s predecessor in title lots numbers 86 and 87 of a tract of W. A. Umlauf according to a map and survey on file in the Erie County Clerk’s office under cover 330 * * * together with all the right, title and interest that the party of the first part has in and to the Cazenovia Creek abutting on or adjoining the above-described premises,” the grantor intended to convey the lots shown on the map together with the subsequent accretions which would have adhered to those lots if they had been held in separate ownership. Accordingly, the court fixed as the boundary of the lots conveyed in 1904 to defendant’s predecessor in title a line drawn at right angles from the bank of Cazenovia Creek, as shown on the filed map, at the point where the fine of lots 86 and 87 intersected the bank of the creek, to the bank' of the creek as it existed in 1904, when Dow conveyed the premises. The court held that the division of accretions during the period from 1904 and the date of the trial, must be made by the application of the same • rule by extending the boundary fine of the property conveyed in 1904 to defendant’s predecessor in title, not in a straight line, but at right angles to the bank as it existed when the deed was made in 1904.

Land formed by accretion along the banks of a stream belongs to the riparian owners. The courts have attempted to devise rules for equitable -division of such land between adjoining owners. In the often cited case of Deerfield v. Arms (17 Pick. 41) the court in the course of an exhaustive discussion of the subject stated: “ The object is, to establish a rule of division among these proprietors, which will do justice to each, where no positive rule is prescribed, and where we have no direct judicial decision to guide us.” Different jurisdictions have adopted varying rules and have felt impelled at times to modify general rules to meet particular circumstances. In the instant case, this court must first determine the boundary of the lots conveyed to the defendant’s predecessor in title by deed made in 1904, in accordance with the description contained in the deed. Then it must find the correct rule to apply in the division of the accretions made after Dow conveyed the premises in 1904. Here there may, perhaps, be need of balancing the advantages of the policy of a general, uniform rule to be applied under all, or at least most, conditions, and the policy of modifying general rules to do equity in the particular circumstances. No such problem is before us in regard to the division of accretions of land formed before 1904. Then Dow owned all the bank of Cazenovia Creek and all the land which had been formed by accretion to the lots plotted upon the filed map. He made the division of the new land, which had been formed after the map was filed. He had the right to convey that land in such proportions as he saw fit. From the language in the deed to the defendant’s predecessor in title, we must determine what land the parties intended should pass. The rules devised by the courts for a division of land between adjoining owners, where the owners cannot make the division themselves, have no application where owners have themselves made the division.

In our opinion, the boundaries fixed by the Appellate Division for the land conveyed to defendant’s predecessor in title by deed made in 1904, clearly do not conform to the intention of the parties as embodied in the deed. The lots conveyed were plotted, on the map referred to in the deed, with a frontage on Yale Place and with a rear line parallel to that street. It can hardly be doubted that by the deed conveying these lots as shown on the map together with all the right, title and interest that the party of the first part has in and to the Cazenovia Creek abutting on or adjoining the above-described premises,” the grantor intended to convey the lots, shown on the map, to the bank of the creek. The bank had originally been the boundary of the lots. The parties intended that the bank should continue to be the boundary, regardless of change in the location of the water. To effectuate that intent fully, it would seem that the side boundaries should be extended till they meet the new bank in a straight line and not at a new angle. (Tiffany on Real Property, § 543.)

To test the correctness of our conclusions as to the intention of the parties, we may properly consider whether in this case the application of any other rule would produce an absurd or unjust result. If the side boundaries are not extended in a straight line, they must be extended in a line drawn at right angles to the bank as it existed on the map, in accordance with the decision of the Appellate Division. The side line so extended would meet the new bank of the stream, not at the middle line of the block between Yale Place and Princeton Place, but at or near the line of Yale Place if extended in a straight line. Clearly the parties could not reasonably have intended that the words Cazenovia Creek abutting on or adjoining the above-described premises ” referred to a portion of Cazenovia Creek, which might become separated from the above-described premises by an extension of Yale Place in a straight line, and which could be said to abut on or adjoin the'above-described premises ” only if the established side boundaries of the said premises are extended at a new and sharp angle instead of in a straight line.

It is said that there is no evidence that Yale Place has been extended in a straight line, actually or constructively, or that the parties ever contemplated that it would be so extended. We find in the record convincing evidence on that point. Yale Place and Princeton Place are, as we have pointed out, parallel streets bounding the block upon two sides. Both streets apparently extended about to the creek as shown on the map. If the parties intended and understood that Princeton Place should be regarded as extending to Cazenovia Creek, regardless of any change in the location of the creek, it is a fair inference, in the absence of evidence to the contrary, that they had the same understanding in regard to Yale Place. Undoubtedly, when Dow granted the lots fronting on Princeton Place to the plaintiff’s predecessor in title, the parties to that deed must have so understood in regard to Princeton Place. The plaintiff’s claim of title to the bank of Cazenovia Creek, as it existed in 1904, is based upon the language of that deed which describes the side line of the lots conveyed as running, from the point of beginning, southerly along said Princeton Place to the point of intersection of said westerly line of Princeton Place and the waters of Cazenovia Creek.” Clearly, the parties must have contemplated that at that time Princeton Place had been extended, actually or constructively, in a southerly direction from the point of beginning to Cazenovia Creek, wherever that might be located. Hardly less clear is the conclusion that when Dow conveyed to the defendant’s predecessor in title his lots fronting on Yale Place extending to the middle line of the block, together with title to Cazenovia Creek abutting on or adjoining these lots, he intended that Yale Place and the middle ■line of the block should be the side boundaries of all land conveyed and these side boundaries should be extended till they met the new banks of Cazenovia Creek. He did not, and could not, thereafter convey to another any lands lying within these side boundaries so extended. The point on Cazenovia Creek as it existed in 1904, intersected by the middle line of the block, is the division point of the lands conveyed by Dow.

Intent of Dow, the common grantor of the premises owned by the defendant and the plaintiff, as shown in the language of the deeds made by him, determines the boundaries of the land which passed under the deeds. It does not itself determine how land which formed thereafter by accretion and the changed bank of the river must be divided. We have pointed out that general rules devised by the courts for apportionment upon an equitable basis must yield before the press of special circumstances. We do not now decide what general rule would ordinarily be applied in this State. We hold that under the special circumstances of this case the new bank of the river and the accretions formed by the change in the bank should be divided by extending the side boundary of the adjoining owners in a straight line.

That line runs parallel to the streets. It is hardly reasonable to suppose that these streets will not be extended, or will be extended in other than a straight line. The lots conveyed in 1904 fronted on these streets and were bounded in the rear by the middle line parallel to the streets. As land was formed from day to day by imperceptible accretion to these lots, each proprietor would naturally regard himself as the owner of the water front between his side boundaries. It would be inconvenient if, after the lapse of time, the lots intended to be bounded by streets and lines parallel to the streets should be bounded by other lines. There are few cases in the books dealing with the division of accretions to land in blocks bounded by city streets. Such cases as there are, show that these circumstances may present ground for departure from ordinary methods of allocation. In proper case, division may then be made by prolonging the lines of the streets and the side boundaries in a direction parallel to these streets. (See City of Elgin v. Beckwith, 119 Ill. 367; Nirdlinger v. Stevens, 262 Fed. Rep. 591; affd., on opinion below, 273 Fed. Rep. 1022; revd., on other grounds but expressly approved in this regard, 262 U. S. 266, opinion by Mr. Justice Holmes; O’Donnell v. Kelsey, 4 Sand. 202; affd., 10 N. Y. 412.) In this case, in our opinion, no other method of allocation could reasonably be applied.

It follows that the judgment of the Appellate Division and that entered upon the report of the referee should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Kellogg and O’Brien, JJ., concur; Hubbs, J., not sitting.

Judgments reversed, etc.


text:
    Chatham Phenix National Bank and Trust Company, Respondent, v. Esther Crosney, Appellant.

      (Argued April 30, 1929;
    decided May 28, 1929.)

      Frank C. Laughlin, Stewart W. Bowers and Jacob I. Berman for appellant.
    Section 55-a of the Insurance Law applies to insurance taken out by a husband for the benefit of his wife, and the defendant by virtue of that statute is entitled to the principal amount of the life insurance taken out by her husband in her favor, and it is not necessary to hold that section 52 of the Domestic Relations Law has been impliedly repealed. (Sazvage v. Murphy, 34 N. Y. 508; Carr v. Breese, 81 N. Y. 584; Todd v. Nelson, 109 N. Y. 316; Schreyer v. Platt, 134 U. S. 405; Wallace v. Penfield, 106 U. S. 260; Smith v. Vodges, 92 U. S. 183; Banning v. Marleau, 133 Cal. 485; Almand v. Thomas, 148 Ga. 369; Spinger v. Bigford, 160 Ill. 495; Higgins v. White, 118 Ill. 619.)

      Denis B. Maduro, Jacob Scholer and Cornell S. Dikeman for respondent.
    The complaint states facts sufficient to . constitute a cause of action under section 52 of the Domestic Relations Law. . (Guardian Trust Company v. Straus, 139 App. Div. 884; 201 N. Y. 546; Whitehead v. New York Life Ins. Co., 102 N. Y. 143; Wagner v. Thieriot, 203 App. Div. 757; 236 N. Y. 588; Grems v. Trover, 87 Misc. Rep. 644; 164 App. Div. 968; Lukasik v. Czarczynski, 162 N. Y. Supp. 1.) Section 55-a of the Insurance Law does not repeal section 52 of the Domestic Relations Law. (People ex rel. Kingsland v. Palmer, 52 N. Y. 83; Grimmer v. Tenement House Dept., 204 N. Y. 370; Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159; Woods v. Board of Supervisors, 136 N. Y. 403; Welch v. City of Niagara Falls, 210 App. Div. 170.; Matter of Brooklyn, Queens County & Suburban R. R. Co., 185 N. Y. 171; Smith v. People, 47 N. Y. 330; Mount v. Mitchel, 31 N. Y. 356; Orange County v. Ellsworth, 98 App. Div. 275; Blauweis v. Kirschner, 128 Misc. Rep. 630.) The wife has no right to elect under which statute she will take. (Guardian Trust Company v. Straus, 139 App. Div. 884; 201 N. Y. 546; Heppenstall v. Baudouine, 73 Misc. Rep. 118; 148 App. Div. 892.)

      Albert Hirst for New York State Life Underwriters Association, amicus curiae.

   Lehman, J.

The complaint alleges that Abraham Crosney at the time of his death was insolvent and indebted to the plaintiff in the sum of $50,000; that the defendant was the wife of the said Abraham Crosney and that “ she, in the lifetime of her said husband, or the said Abraham Crosney, caused his life to be insured in various insurance companies in her name as a beneficiary and for her benefit; ” that premiums for such insurance were paid annually out of the property of the said Abraham Crosney in an amount greatly in excess of $500, and that at the time of the payment of such premiums Abraham Crosney was insolvent and unable to pay his debts. Upon these allegations the plaintiff seeks a judgment that the portion of the insurance moneys, payable by the terms of the policies to the defendant as beneficiary, which has been purchased by excess of premium above five hundred dollars, shall be applied in payments of the decedent’s debts.

The action is based upon the provisions of section 52 of the Domestic Relations Law (Cons. Laws, ch. 14). The courts of this State have frequently been called upon to construe and give effect to the provision of that section. Similar provisions became part of our statute law by the enactment of chapter 80, Laws of 1840. Consistently, the courts have construed the statute in the light of its history, and the conditions existing at the time of its enactment, which it was intended to remedy. At that time, married women still labored under the common-law disabilities of coverture, and as this court pointed out in the case of Whitehead v. New York Life Insurance Co. (102 N. Y. 143): Prior to that enactment and at common law it was open to question whether the wife and children had an insurable interest in the life of the husband and father (Bliss on Life Ins., § 10; Ruse v. Mut. Ben. L. Ins. Co., 23 N. Y. 516), and whether he could protect them save by taking out policies in his own name, and for the benefit of his estate which in the end would go to them. But this made the insurance liable for his debts, and left it impossible for those who needed assistance most to obtain it at all. (Ruppert v. Union Mut. Ins. Co., 7. Rob. 155, 156.) The statute was intended to and does remedy the difficulty.”

Though in terms the statute applies only where a married woman causes the life of her husband to be insured, the courts, construing the statute in the light of the conditions existing at the time of its original enactment, which the Legislature intended to remedy, have held that the statute applies also where the insurance, though effected by the husband, is made payable to the wife. (Whitehead v. New York Life Insurance Co., supra; Kittel v. Domeyer, 175 N. Y. 205; Guardian Trust Company v. Straus, 139 App. Div. 884; affd., 201 N. Y. 546; Wagner v. Thieriot, 203 App. Div. 757; affd., 236 N. Y. 588.) The Legislature intended to give to the wife a limited right to the insurance fund created by the husband’s annual appropriation or investment of his moneys in premiums for insurance upon his life for the benefit of his wife.” (Matter of Thompson, 184 N. Y. 36.) “ The important feature in this statute, as interpreted by the Appellate Division and the Court of Appeals, is not who negotiates and actually procures the insurance policies to be issued, but who pays the premiums.” (Guardian Trust Company v. Straus, supra.)

Judicial decisions that a married woman “ causes ” the life of her husband to be insured within the meaning of the statute, though the husband in fact effects the insurance, have sometimes been explained upon the theory that the husband acts as the wife’s agent. Such explanations must be read in the light of the judicial interpretation of the legislative intent. This court has pointed out that “ the legislative intent bore upon the exemption of a fund, which had been created by the husband as a provision for the benefit of his wife in the event of her surviving him. Her right did not rest upon contract, but upon a legislative grant, by way of exemption from the claims of creditors, of an insurance fund, created by the husband’s * * * moneys.” (Kittel v. Domeyer, supra.) In creating the insurance fund as a provision for the benefit of his wife, the husband acts as the agent of the wife only in the sense that he enables the wife to obtain the benefit of the fund. (Baker v. Union Mutual Life Ins. Co., 43 N. Y. 283.)

Since the date when the Legislature first made provision for insurance in favor of a married woman upon her husband’s life, free to a limited extent from the claims of her husband’s creditors, the conditions which the statute was intended to remedy have entirely vanished. A married woman no longer is under any disability to contract in her own name or to hold or dispose of her separate property. Any doubt which might have existed as to the right of a married woman to insure the fife of her husband has been removed by the express provisions of section 55 of the Insurance Law (Cons. Laws, ch. 28). The result of these changes in the law has produced a situation which might well seem anomalous to the Legislature. Though the provisions of section 52 of the Domestic Relations Law were intended to remedy conditions which at one time may have prevented a husband from making provision for his wife through the creation of an insurance fund payable to her, under changed conditions it operated as a limitation upon the right of a husband to make, in favor of his wife, the same provision which he might make for others having a lesser claim upon him. No limitation existed upon the right of a stranger named as the beneficiary of a policy upon the life of another to take the entire insurance fund upon the death of the insured, free from any claims of the creditors of the insured, though the annual premiums were paid by the insured, unless such premiums were paid in fraud of creditors. Where the wife was the beneficiary of a policy upon the life of her husband, the creditors of the husband were entitled to the portion of the insurance money which is purchased by excess of premium above five hundred dollars ” out of her husband’s property. The statute, intended to create rights in a wife, under changed conditions, resulted in creditors having rights against a wife which they would not otherwise possess. Only the Legislature could remedy this condition.

We are told that the Legislature did intend to remedy this condition by the enactment of section 55-a of the Insurance Law (Chapter 468, sec. 1, Laws of 1927). The statute provides that: “If a policy of insurance, whether heretofore or hereafter issued, is effected by any person on bis own life or on another life, in favor of a person other than himself, or, except in cases of transfer with intent to defraud creditors, if a policy of life insurance is assigned or in any way made payable to any such person, the lawful beneficiary or assignee thereof, other than the insured or the person so effecting such insurance, or his executors or administrators, shall be entitled to its proceeds and avails against the creditors and representatives of the insured and of the person effecting the same, whether or not the right to change the beneficiary is reserved or permitted, and. whether or not the policy is made payable to the person whose life is insured if the beneficiary or assignee shall pre-decease such person; provided, that, subject to the statute of limitations, the amount of any premiums for said insurance paid with intent to defraud creditors, with interest thereon, shall enure to their benefit from, the proceeds of the policy; * *

The statute does not in terms repeal section 52 of the Domestic Relations Law. That section contains not only the provision limiting the right of a wife to take moneys derived from insurance on her husband’s life purchased by premiums paid out of her husband’s property, but also provisions which in other respects afford protection of the wife. Clearly the new section of the Insurance Law does not by implication repeal any of the provisions of the Domestic Relations Law which are not inconsistent with its terms and general scope. The new section does, however, in terms apply to the proceeds of all policies which are effected by any person on his own life, or on another life in favor of a person other than himself. If we give this language its natural significance, then it includes policies effected by a husband in favor of his wife. We find no sound reason why the státute should receive any other construction.

The debates in the Senate in regard to the new section leave no doubt that, at least in that branch of the Legislature, it was understood that the purpose and effect of the new section was to include in its scope policies in favor of a wife upon the life of her husband, and to destroy any rights which the creditors would otherwise have to the portion of the insurance moneys purchased by excess of annual premiums above $500 paid out of the husband’s .estate. The language of the statute is derived from similar statutes of Massachusetts and of Pennsylvania. In those jurisdictions the statutes apply to all policies, including policies in favor of a wife, upon the life of her husband. In employing the same language the Legislature of New York may hardly be presumed to have intended that, in this jurisdiction, the language should have a more restricted meaning. Some lack of deftness is evident in adapting the language of the statutes of other jurisdictions to our own statutory scheme. None the less, the intention is evident to remedy the condition which has precluded a husband from effecting insurance upon his life as a provision for the benefit of his wife even to the extent to which he might make such provision for the benefit of others having lesser claims. Certainly when the Legislature decreed that the lawful beneficiary or assignee of a policy, effected by another on his own life, is entitled to the proceeds of the policy against the creditors of the insured, whether or not the right to change the beneficiary is reserved or permitted, we may not reasonably hold that the Legislature intended that an exception must be made in favor of the creditors of the insured against the wife.

The same considerations which impelled the court to give a broad scope to the language of the statute intended to remedy conditions as they existed in 1840 should lead the courts to a liberal construction of the language of the statute intended to remedy conditions as they exist to-day. As we have already pointed out, the courts have held that the earlier statute applied to any insurance fund created by the husband’s annual appropriation or investment of his moneys in premiums for insurance upon his life for the benefit of his wife, though in express terms the statute refers to the proceeds of a policy only where the wife causes ” her husband’s life to be insured. So, though the language of the later statute refers in express terms only to a policy of insurance effected by any person on his own life or on another life, in favor of a person other than himself,” it seems evident that the Legislature intended by that • language to include all cases where a person by appropriation or investment of his own money in premiums for insurance upon his own life for the benefit of another creates an insurance fund for the beneficiary. There is no reasonable basis here for a construction which would create distinctions between policies where the. contract of insurance is made by the insurance company with the beneficiary, and policies where the contract is made with the person whose life is insured, or between policies where the beneficiary is a stranger to the person' whose life is insured and policies where the beneficiary is his wife. The Legislature was dealing primarily with the conflicting rights, on the one hand, of creditors or personal representatives of a person, whose life is insured; and, on the other hand, of a beneficiary of the policy, to an insurance fund created by the appropriation of moneys of the insured for the payment of premiums. Within the meaning of the statute, in all cases insurance is “ effected ” by the person whose life is insured, upon the appropriation and investment by him of his moneys in the premiums which create the insurance fund. Other construction would defeat rather than effectuate the] legislative intent and create distinctions without any logical basis.

It follows that no action can be maintained by a creditor of Abraham Crosney, deceased, to reach insurance moneys, payable under policies of insurance upon his life to his wife as beneficiary, purchased by excess of premiums above five hundred dollars paid out of his estate. Their rights in the proceeds of such policies are confined to the amount of the premiums, with interest, which may have been paid by the deceased in fraud of his creditors. The question whether the creditors would have any right to premiums not in excess of five hundred dollars is not now before us.

The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in the Appellate Division and. in this court. The question certified should be answered: “ No.”

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.


text:
    Lord & Burnham Company, Respondent, v. The City of New York, Appellant.

      (Argued May 1, 1929;
    decided May 28, 1929.)

      Arthur J. W. Hilly, Corporation Counsel (Elliot Si Benedict, Paul Livoti and J. Joseph Lilly of counsel), for appellant.
    Plaintiff failed to either plead or prove a contract binding on the city of New York, since even the emergency of war did not dispense with the making of the contract in suit by the Commissioner of Water Supply, Gas and Electricity, or the execution of a certificate of necessity by him. (Brady v. Mayor, etc., of N. Y., 20 N. Y. 312; Donovan v. Mayor, etc., of N. Y., 33 N. Y. 291; Parr v. Village of Greenbush, 72 N. Y. 463; Dickenson v. City of Poughkeepsie, 75 N. Y. 65; Smith v. City of Newburg, 77 N. Y. 130; Walton v. Mayor, etc., of N. Y., 26 App. Div. 76; Keane v. City of New York, 88 App. Div. 542; Lewis v. City of New York, 106 App. Div. 454; Lyddy v. Long Island City, 104 N. Y. 218;
      Knickerbocker Ice Co. v. 42nd Street R. R. Co., 176 N. Y. 408; Claflin v. Inhabitants of Hopkihton, 4 Gray [Mass.], 502.) Assuming, without admitting, that section 211 of the Military Law controls exclusively plaintiff’s right to payment for the garage frame furnished, the requirements of that section were not complied with, in that the major-general in command, or the commanding officer of the brigade to which the first provisional general officer belonged, did not certify the voucher presented for payment for this expense. (City of Chicago v. Chicago League Ball Club, 196 Ill. 54; Commonwealth ex rel. Attorney-General v. Sparks, 201 Ky. 5; Fallon v. Mayor, etc., of New York, 4 Hun, 583; Ford v. Mayor, etc., of New York, 4 Hun, 587; 63 N. Y. 640; Van Iderstine Co. v. Barrett Leather Co., 242 N. Y. 425; Jungmann & Co. v. Atterbury Bros., 249 N. Y. 119.) The city is not estopped to urge its defenses herein by any action of the Deputy Comptroller. (N. Y. Rubber Co. v. Rothery, 107 N. Y. 310; Thompson v. Simpson, 128 N. Y. 270; Borst v. Town of Sharon, 24 App. Div. 599; Kennedy v. Mayor, etc., of N. Y., 34 App. Div. 311; Winter v. City of Niagara Falls, 190 N. Y. 198; Hungerford v. Village of Waverly, 126 App. Div. 311; Merwin v. City of Utica, 172 App. Div. 51; Hinckley v. State of New York, 202 App. Div. 570; 234 N. Y. 309; Fellmeth v. City of Yonkers, 222 App. Div. 815.)

      Paul T. Davis and Ernest F. Griffin for respondent.
    None of the provisions of section 419 of the city charter ever applied to the contract which is the subject-matter of the case at bar. (N. Y. C. R. R. Co. v. City of N. Y., 131 Misc. Rep. 796; 224 App. Div. 832; Harlem Gas Light Co. v. Mayor, etc., 33 N. Y. 309; N. Y. C. R. R. Co. v. West Co., 173 App. Div. 263; 224 N. Y. 646; N. Y. & Queens Elec. L. & P. Co. v. N. Y., 221 App. Div. 544; McDonough v. Quinn, 199 App. Div. 302.) The charge was properly incurred by the military authorities as a necessary expense and, as such, the method of paying is governed by section 211 of the Military Law. (People ex rel. Stephenson v. Bingham, 205 N. Y. 68; Danielson v. Morse D. D. & R. Co., 235 N. Y. 439.) The defendant is estopped by the action of its Comptroller from refusing payment of the bill on the ground that it was not certified by either the major-general in command or the commanding officer of the brigade. (Abells v. City of Syracuse, 7 App. Div. 501; City of Newport News v. Potter, 122 Fed. Rep. 321; Argenti v. City of San Francisco, 16 Cal. 255; Merwin v. City of Utica, 158 N. Y. Supp. 257.)
   Lehman, J.

In February, 1917, when a declaration of war against Germany was imminent, the Governor of the State of New York, upon the request of the mayor of the city of New York, ordered out some of the military forces of the State to aid the civil authorities in the maintenance of law and order, and especially for the purpose of guarding the water supply system of the city. The action of the Governor was authorized by the provisions of section 115 of the Military Law (Cons. Laws, ch. 36). The necessary expenses incurred in quartering, caring for, warning for duty and transporting the troops must be paid by the city of New York. (Military Law, § 211.)

In December, 1917, a supply officer of a regiment of the State militia ordered from the plaintiff a temporary garage to be delivered within ten days. The agreed price was $1,525. The order was signed by the supply officer. It was approved by the assistant engineer of the city’s department of water supply. The plaintiff delivered the garage promptly, but it was not erected till the following spring. It does not appear that the delay was due to any fault of the plaintiff.

The plaintiff, in June, 1918, rendered a bill for $1,525, using printed forms provided by the city. The voucher was certified by the plaintiff’s treasurer. It was approved by the regimental supply officer and the acting lieutenant-colonel. In due course it traveled to the office of the Adjutant-General. It was certified by the Adjutant-General of the State and by his assistant. In May, 1919, it was sent to the office of the Comptroller of the city of New York for payment. The Deputy Comptroller assumed that it was his duty to determine whether the military authorities should have ordered the garage. From time to time, for several years thereafter, the Deputy Comptroller answered inquiries from the plaintiff by letters stating that the claim could not be adjusted till he received further information which had been requested of the Adjutant-General. Finally, in January, 1923, the plaintiff was curtly informed that its claim “ has been disallowed for the reason that the City is not hable in the matter.”

The plaintiff then began this action. Only from the allegations of the answer did the plaintiff obtain any information as to the reasons why the city claimed it was not hable in the matter. As a fourth defense the city alleged that the order given by the supply officer of the military forces of the State was not valid because it failed to comply with sections 419, 450 and 468 of the charter of the city of New York. As a fifth defense the city alleged that the voucher sene to the Comptroller did not comply with the provisions of section 211 of the Mihtary Law.

Section 419 of the Greater New York charter, and other related sections, provide that contracts for work to be done or supplies to be furnished must be made in accordance with prescribed formalities and signed by designated responsible officers of the city. Doubtless they furnish protection to the city against waste and fraud. It is evident, however, that they apply only to contracts made with the city through the officers and agents of the city. Here the order was given to the plaintiff by the military authorities of the State, who acted in aid of the civil authorities under the order of the Governor. Liability on the part of the city for supplies furnished upon such an order does not rest upon a contract made with the city and is not subject to the provisions of the city charter relating to the powers of city officers. It is an obligation created by section 211 of the Military Law. Expenses incurred by the military authorities under the conditions specified in that section must be paid, by the city; and the* military authorities, subject to the provisions of the Military Law, and not the officers of the city, must determine when and how such expense shall be incurred. When the voucher was presented to the Comptroller he was required to provide for its payment, provided only that the voucher complied with the provisions of the Military Law.

Unfortunately for the plaintiff the voucher presented to the Comptroller was defective. The statute requires that the vouchers and payrolls must be certified by the commanding officers of the organizations or corps on duty in aid of civil authority and “ approved by the major-general, if he be present in command where the duty is performed, or by the commanding officer of the brigade * * * to which ( the organizations or corps were attached.” We may assume that the lieutenant-colonel who certified the voucher was the commanding officer of the organization or corps on duty; but the statute requires also that the voucher be approved by the major-general or the commanding officer of the brigade, and such approval is lacking here. It may be that the approval of the Adjutant-General and his assistant would be at least as certain a guaranty of the propriety of the voucher as the approval of the major-general or brigade commander, but it is not the guaranty provided by statute.

Doubtless if a private corporation had received the plaintiff’s voucher and held it for years without objection as to its form, it would not thereafter be permitted to defeat the plaintiff’s claim by objecting to the absence of approval of the officer named in the statute. The city is in a somewhat different position. Presentation of the voucher in accordance with the statute is a condition precedent to liability of the c ty. It constitutes the only protection afforded to the city against the payment of improper claims. Until there has been compliance with that condition, no officer of the city has authority to make payment, and no officer has power to waive the requirement or to impose liability upon the city by estoppel. (Winter v. City of Niagara Falls, 190 N. Y. 198.)

When the Comptroller’s office discovered the defect in the voucher, it should have called the defect to the attention of the plaintiff. When the plaintiff upon service of the defendant’s answer learned that the city would claim that the voucher was technically defective, it should have discontinued the action and presented a voucher in due form. The result is that after litigation to secure payment of a comparatively small sum has proceeded for years, we are compelled to dismiss the complaint because of a technical defect in the claim. The plaintiff can still procure the approval of the voucher by the officer designated in the statute, or his successor in office, and then the city must pay the claim.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts, without prejudice to the commencement of a new action after the presentation of a voucher certified and approved in accordance with the statute.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgments reversed, etc.