author: Hogeboom, J. Davies, J.

text:
    Mary Siemon v. Morris Schurck, Mary Austin and William Austin.
    A purchase of land was made for the benefit of the plaintiff, by her parents, and the purchase money was paid by the latter, the purchase being mads for the benefit of, and intended as a gift or advancement to, the plaintiff, who was an infant; and an absolute deed was executed to T. of the premises, for the benefit of the plaintiff, but without her consent or knowledge: Held, that although T. held the-legal title, by virtue of his deed, it was a mere naked title without interest, and one upon which a judgment against him could not fasten asían effective lien.

      Held, also, that the provisions of the fifty-first section of the article of the Revised Statutes, relating to uses and' trusts, were inapplicable to the case; and that the rule of the common law, as to resulting trusts in favoi of him who pays the purchase money on a conveyance being made t< another, was revived, and governed the rights of the parties.

      Held, further, that a Writ in equity would lie, by the plaintiff’, as the equitable owner of the premises, to enforce her rights as such, and to restrain the prosecution of an ejectment suit brought by parties claiming under a judgment against Y., with notice that the consideration for the deed to Y was paid by others.
    And that an action for such equitable relief was not barred because the plaintiff might have interposed her claim as a defense in the ejectment suit*
    The language of the statute, declaring that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom, such payment shall be made, is not necessarily prohibitory of a resulting trust for the benefit of a third person in whose favor, for family or other lawful and sufiScieht reasons, it is deemed proper to make som < provision.

      Appeal from a judgment in favor of the plaintiff , rendered in the Supretne Oourt.

    The case is reported in 33 Barb. B. 9. The premises •which are the subject of this action were conveyed to George F. H. Youngs by Frederick W. Weiss, by an absolute deed on the 17th March, 1847. The price of the property was $2,000. $1,000 of the purchase money was handed to George H. Siemon by his wife, the mother of the plaintiff. That sum, together with the additional $1,000, was paid by Mr. Siemon to Weiss, the grantor, The $1,000 paid by Mr. Siemon was subsequently repaid to him by Youngs, who raised the money for that purpose by mortgaging the premises. Youngs took the conveyance at the request of Mr. and Mrs. Siemon, to hold for the benefit of the plaintiff; but the plaintiff was then a minor, and had no knowledge of, and gave no consent to, the transaction. On the 5th March, 1849, Morris Sohurck recovered a judgment against Youngs for $182.50 in the Yew York superior court, which was docketed on the 6th March, 1849, in Kings county. This judgment was assigned to William Austin on the 20th June, 1853. On the 23d August, 1853, all the right and title of Youngs Was sold under an execution, on the judgment, at sheriff’s sale, and bid off by William Austin for $256.25. William Austin, at the time of the purchase, had notice that the consideration for the deed to Youngs was paid by another. William Austin assigned the sheriff’s certificate to his sister, Mary Austin, and on the 25th of Yovember, • 1854, the sheriff executed his deed of the premises to Mary Austin, and the conveyance was recorded on the 8th December, 1854. On the 2d May, 1853, Youngs conveyed the property to the plaintiff, subject to the mortgage, and the conveyance was recorded on the 13th May, 1853. Youngs was never in possession of the premises, except that he collected the first quarter's rent and paid it over to Siemon, the father of the plaintiff, who collected the subsequent rents. On the 30th December, 1854, Mary Austin brought an action of ejectment for these premises against one James Murtagh, (a tenant,) and the plaintiff. In February, 1855, the plaintiff commenced this suit to restrain the action of ejectment, to have the sheriff’s deed cancelled as a cloud upon her title, and to have a resulting trust declared in her favor in the deed to Youngs, alleging that she paid the consideration for the deed to Youngs, and that he. took the deed to himself in fraud of her rights. A preliminary injunction was allowed, restraining further proceedings in the ejectment suit. The action having been referred to a referee, he made a report in favor of the plaintiff, on which judgment was entered, establishing a resulting trust, and cancelling the sheriff’s deed as a cloud upon her title. On appeal to the general term that judgment was affirmed, and from.the judgment of affirmance this appeal was taken.

      A. J. Parker, for the appellants.
    I. This action can not be maintained, because Mary Siemon could have had the affirmative relief sought in this action, in the action of ejectment brought by thw defendant, Mary Austin, against Mary Siemon. It is th* policy of the law to avoid a multiplicity of suits, and *, second action can not be capriciously maintained for pur poses attainable in .the first. (Padgett v. Lawrence, 10 Paige, 176; Code, §150; Dobson v. Pearce, 2 Kern. 165, Crary v. Goodman, 2 ib. 266; Reubens v. Joel, 3 ib. 488.) Under the old practice, a second suit could not be maintained where a remedy might have been had by way of defense in the first, nor could relief be given in equity where there was a remedy at law. But, under the code, there is still less excuse for a cross action, because an equitable right establishes not only a defense to a legal claim, but also entitles a defendant to affirmative relief in the same action.
    II. Youngs took the conveyance of the premises to himself at the request of the party paying the consideration. No trust resulted, except in favor of the creditors of the latter. (1 K. S. 728, §§ 51, 52.) Section fifty-one declares that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section. The only exceptions are as to creditors of the person paying the consideration in section fifty-two, when an absolute conveyance is taken without the consent or knowledge of the person paying the consideration, or in violation of some trust as in section fifty-three. (3 R. S. 5 ed. 15; Revisers’ Notes, vol. 3, 2d ed. R. 3, 583, 585; Jencks v. Alexander, 11 Paige, 619; Garfield v. Hatmaker, 15 N. Y. Rep. 475; Davis v. Graves, 29 Barb. 480; Lounsbury v. Purdy, 16 Barb. 376; 11 ib. 490, 18 N. Y. Rep. 515.)
    1. The money in the hands of Mrs. Siemon vested absolutely in the husband by the marriage.
    2. If invested by him in land, in his own name, no trust for her would have resulted.
    3. The one thousand dollars nominally received from her, being her husband’s money, no promise made by him, on receiving it, could be enforced in favor of the wife, or any other person.
    4. A moiety of the consideration indisputably proceeded from Mr. Siemon; and the other moiety proceeded from him, either as being originally his, or upon the principle above stated. No trust resulted, except for creditors.
    • 5., No part of the consideration proceeded from the plaintiff. The money, as such, was never hers; it was never given, or intended to be given, to her as money. Neither, as against her parents or Youngs, could she have recovered it. Nor, if her father had taken the deed in his own name, would a trust have resulted in her favor. Payment by one will not raise an implication of a trust in favor of another. (Padgett v. Lawrence, 10 Paige, 170; Botsford v. Burr, 2 J. Ch. R. 405.)
    6. Even supposing a moiety of the consideration to have proceeded from Mrs. Siemon, the other moiety proceeded from Mr. Siemon. Neither intended a gift of money to their daughter, but both intended and expressly provided for a secret trust, partly in favor of the daughter and partly in favor, of her father. The gift -was intended sub modo, and must be taken subject to the legal conditions which attach to its form and substance. They intended and directed just what was done. They intended and provided that Mary Siemon should take all she took as a resulting trust, and not otherwise. Does the statute permit one thus to create resulting trusts for another, taking, not as contributing consideration, but taking an estate through the resulting trust as a gift?' They could no more create a secret resulting trust'in favor of their daughter by this conveyance to Youngs, than they could create it in then own favor. The statute declares it to 'be,void as to every one, except as to creditors. The person advancing the money, and the person to whom the advance was a gift, have always stood on the same footing. It was, so held before resulting trusts were abolished. (Getman v. Getman, 1 Barb. Ch. R. 499.)
    7. The transaction was intended as a secret trust, for Siemon, in fraud of his creditors, (a.) He was insolvent. (b.) He received all the rents and profits, and has never accounted for them, (c.) He borrowed $1,000 by a-mortgage upon the property, executed three years after the conveyance to Youngs. He has thus hindered and delayed creditors, and consummated the fraud which was the motiva to the trust, (d.) There is no satisfactory evidence that, in point of fact, any part of the consideration money proceeded from Mrs. Siemon. The account Mr. Siemon gives of it is fraught with suspicion, improbable and unworthy of belief, (e.) The pretended interest of the plaintiff in the property was kept a profound secret from her, and all the children understood the property, to belong to the father, until the ejectment suit was brought. The conveyance by Youngs to the ‘ plaintiff was while the property was being proceeded against under the judgment against Youngs, and that, like-all the rest, was concealed from the plaintiff. The inference of fraud, from these facts, is irresistible.
    III. The paroi trust relied upon by the plaintiff is void. The court of appeals has decided that no paroi trust of lands can be allowed without overthrowing the wholesome provisions of the statute of frauds. (Sturtevant v. Sturtevant, 20 N. Y. R. 39.) And there can be no implication of a trust in favor of the plaintiff, for the plaintiff’s money was not paid.

      TV. The premises were conveyed by Weiss to Youngs, in March, 1847. As against Youngs, the judgment became a lien on the 6t.h of March, 1849. As against Mr. Siemon, Youngs had a good title to at least an undivided moiety of the property, upon which that lien attached. The mortgage executed to Lamberson, in February, 1850, did not defeat but was subject to that lien. By the sale on Schurck’s execution, his judgment was extinguished; and if the referee was right, Siemon (for whom there was no resulting trust) and the mortgagee who, with notice of the judgment, lent $1,000 for his use, have been let in upon the property, not only to defeat the lien of the judgment, but to the utter extinguishment of the judgment itself. (Russell v. Allen, 10 Paige, 249; Davis v. Graves, 29 Barb. 480.) These consequences,are subversive of the plain letter and policy of the statute against resulting trusts; and the effect of sanctioning them is to encourage and promote the very frauds and mischief the legislature labored to suppress. (Bevisers’ note as to sec. 45; 3 E. S., 2d ed., 579, 583; Lalor on Eeal estate, 119.)

      V. The defendants Austins are bona fide purchasers.
    1. The consideration they paid was the Schurck judgment, with the sheriff’s fees and costs of sale. The sale extinguished the judgment. (Wood v. Chapin, 3 Kernan, 509; Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Sandusky v. Scoville, 24 Wend. 115; N. Y.

      Marbled Iron Works v. Smith, 4 Duer, 362; Padgett v. Lawrence, 10 Paige, 170, 179, 180.)
    2. They were purchasers without notice under the recording acts. The judgment being a lien, purchasers under it were not bound to take notice of subsequent conveyances. (Norton v. Stone, 8 Paige 222-6.)
    3. The disclosure made by Youngs in the supplementary proceedings on the judgment, only established the lien That Siemon had paid the consideration for. the deed t< Youngs, negatives any rights but those of creditors. (Grosvenor v. Allen, 9 Paige, 77.)
    4. The fact that Youngs executed a nominal conveyance to the plaintiff, even if brought home to Austin, would not have availed her, in connection with the facts that het father paid the consideration; that she had not procured the deed to herself; that she was not in possession or receiving the rents and profits, and that she had not heard of either the deed to her or of her pretended interest in the premises until after the ejectment suit was commenced.

      VI. H a resulting trust can be established without repealing the statute, it can be for no more than the $1,001) claimed to have been advanced by the plaintiff’s mother (2 J. Ch. E. 409; 3 Paige, 390, 1 Barb. Ch. 499; 10 Paig*. 170; 15 Wend. 647; 2 Paige, 238, 241; 6 Co wen, 706; 11 Barb. 490.) And the right of the purchaser at the judicial sale cannot be prejudiced by the mortgage subsequently executed. Its assumption by the plaintiff in the conveyance to her, is her own voluntary act. She thereby adopted the original transaction—-an absolute deed to Youngs, a secret trust for her father as well as herself, and the power to borrow money for her father on the property. She must abide by the condition thus adopted.

      J. W. Gilbert, for the respondent.
    J. The facts in this case, as they existed prior to the conveyance "by Youngs to the plaintiff, raised an implied trust for her benefit.
    1. The alleged gift of one thousand dollars by her mother was valid, and became effectual as soon as invested in the purchase of the premises in question. (Hill on Trustees, 97, et seq.; Coutant v. Schuyler, 1 Paige, 316; Minchin v. Merrill, 2 Edw. Ch. R. 333; Grangiac v. Arden, 10 J. R. 293; Meth. Church v. Jaques, 1 J. C. R. 450; Reed v. Marble, 10 Paige, 409.)
    2. Implied or resulting trusts are not affected by the Eeviséd Statutes, except that the trust which formerly resulted from the mere payment of the purchase money by one, and the taking of the conveyance in the name of another, with the consent of the party who paid the money, is abolished, except as to creditors. (1 R. S. 728, §§ 50, 51; Garfield v. Hatmaker, 15 N. Y. R. 476; 4 Kent’s Com. 312, n. 1.)
    3. This trust was not within the fifty-first section of the Eevised Statutes, above referred to, as qualified by the fifty-third section, for the reason that the plaintiff, who set up the trust, and for whose benefit the purchase was made, did not pay the purchase money, and the conveyance was taken as an absolute one, in Youngs’ own name, without her knowledge or consent, (a.) The revisers, in their note on this subject, state the object of the change which they proposed in the law to be to prevenía “secret resulting trust from being created by the act of the party claiming its benefit” (3 E. S. 2d ed. 583); and again they ask: “ Why should a man, purchasing lands for his own benefit, take the conveyance in the name of another?” (Id. 585.) And they avow their intention to preserve the old doctrine of implied trusts in other cases, because it is necessary to prevent fraud. (Id. 583.) (b.) Whatever agency Mr. Siemon, the father, exercised in this case, was in behalf of the plaintiff’s mother, to secure and make effectual her gift to the plaintiff, and cannot operate to charge the plaintiff with any knowledge of, or consent to, the mode in which the business was done. Hor was Mrs. Siemon privy to the taking, of the conveyance to Youngs absolutely. (See Hosford v. Merwin, 5 Barb. 57; Botsford v. Burr, 2 J. C. R. 405; Bodine v. Edwards, 10 Paige, 504; Lounsbury v. Purdy, 18 N. Y. 515; Tiff. & Bull. on Trustees, 480 to 489, and cases cited; Story Eq. Jur. § 1201; Day v. Both, 18 N. Y. R. 448.) (c.) And, in any view of the case, it would have been a clear violation of duty on the part of Youngs, if he had used the $1,000 placed in his hands by the plaintiff’s mother, to pay the debts of her father; and yet, to bring the case within the fifty-first section, would enable Youngs to 'effect the same result, (d.) But if the case be within the fifty-first section, then the trust resulted to the creditors of Siemon, and Austin got nothing by his purchase. (15 N. Y. R. Sup.)
    4. Implied trusts are not' affected by the statute of frauds; and our statute expressly exempts them from,its operation. (2 R. S. 134-5, §§ 6, 7; Astor v. L’Amoreux, 4 Sand. S. C. R. 529.)
    II. Being a “trust arising or resulting by implication of law,” and expressly preserved by the Revised Statutes (1 R. S. 728, § 50), the court, on a refusal by Youngs to convey to the plaintiff, would have decreed him to be a trustee ex maleficio, upon the principle that if one takes a conveyance in his own name of an estate which he undertakes to obtain for another, he will in equity be considered as holding in trust for his principal. (Tiff. & Bull, on Trustees, 32, el seq.; Sweet v. Jacocks, 6 Paige, 355.) His conveyance, therefore, was a proper and valid admission and execution of the trust. (Tiff. & Bull, on Trustees, 189, 480, and cases cited; see, also, Wright v. Douglass, 3 Seld. 564.)
    IH. But whether Youngs, under the circumstances, could have been compelled to convey or not, or whether the case is within the fifty-first section of the Revised Statutes, so as to vest an. interest in the creditors of the plaintiff’s parents, or of either of them, it is very clear that his actual conveyance is well supported by the moral obligation resting upon him .to make it, and ought to be upheld as against him, or any one claiming under him, with notice of the plaintiff’s equities.
    Í. It was his duty to take a conveyance in trust for the plaintiff. This, by the forty-seventh section of the statute relative to uses and trusts, would have vested the legal estate in the plaintiff. z
    2. Having omitted to do this, through ignorance or inadvertence, it became his duty, voluntarily or upon request, to manifest or declare the trust, or else to execute it. Such, upon the facts found in this case, is the only effect of his conveyance.
    3. There are no creditors of the Siemons, father or mother. But if there were, they are not parties to this suit, and their rights can receive no prejudice from any determination here.
    IY. William Austin, the purchaser at the sheriff’s sale, acquired only such right and title as Youngs had in the land. The title thus acquired did not relate back to the date of the judgment, but was affected by the notice of the plaintiff’s equities which Austin had when he purchased, (Evertson v. Sawyer, 2 Wend. 507; Jackson v. Post, 15 Wend. 588-596; Hooker v. Pierce, 2 Hill, 650.) And the purchase from the sheriff having been made after Youngs had conveyed to the plaintiff, who was in equity the owner, and in execution of the trust which he assumed on taking: the legal estate, Austin, the purchaser, got no title. (Averill v. Loucks, 6 Barb. 19; cases infra.)

    Y. The equities of the plaintiff are paramount and superior to the lien of the judgment, and the latter will be controlled so as to protect the former. (Hill on Trustees, 269, and cases in n. C; Story Eq. Jur. 1503-b; Whitworth v. Guaguain, 3 Hare, 406; Arnold v. Patrick, 6 Paige, 310; White v. Carpenter, 2 Paige, 217; in re Howe, 1 Paige, 125; Buchan v. Sumner, 2 Barbour’s Chancery Reports, 207.)
    VI. This is not an attempt to establish an implied trust, to defeat or prejudice the title of a purchaser, for a valuable consideration, and without notice of the trust. (1 R. S. 728, § 54.) For both the Austins had constructive notice of the trust.
    1. By the possession of the premises. (Grimstone v. Carter, 3 Paige, 421.)
    2. By the record of Youngs’ deed to the plaintiff. (1 R. S. 756, § 1; id. 739, § 144; 2 Hill; supra; Tuttle v. Jackson, 6 Wend. 213.)
    3. By the examination of Youngs, under proceedings supplementary to execution.
    This notice is found as a fact by the referee, and by the court at general term. See Williamson v. Brown (15 N. Y. R. 354), where the rule as to notice is clearly stated by Selden, J. And William Austin had actual notice that' Youngs had no interest in the land. Moreover, neither were purchasers for value.' (Wood v. Robinson, 22 New York Reports, 564; Dickerson v. Tillinghast, 4 Paige, 215.)
    VII. The trust which we allege affected the whole estate, for the advance of Mr. Siemon was not made for a joint purchase, but as a temporary loan, and the agreement of Youngs was to hold the whole estate as trustee for the plaintiff, subject to the right of Mr. Siemon, to be reimbursed the sum advanced by him.
    VIH. The action was well brought, for the reasons assigned by the court below.
   Hogeboom, J.

The object of this action was to obtain an injunction restraining the further prosecution of an ejectment suit, instituted by the defendant Mary Austin, against the plaintiff and her tenant, to recover certain premises in Brooklyn; and to cause to be delivered up to the plaintiff a certain sheriff’s deed of said premises given upon the sale of the premises to the defendant Mary Austin, who had an assignment of the sheriff ’s certificate of sale from the defendant William Austin, who was the original purchaser at such sheriff’s sale, under a judgment obtained by the defendant Morris Schurck against one George Youngs. The plaintiff claims the equitable title to said premises, as being held by said Youngs as her trustee or for her benefit, under a deed to him prior to the lien of the judgment in question. And'the questions are, whether there is in fact such equitable title in the plaintiff, capable of being enforced in a court of justice; and whether it is superior to the apparent legal title conferred by the deed to Youngs. The deed to Youngs is absolute upon its face, and the grantors therein- were confessedly the ■ true owners of the premises at the time of making the conveyance. So that Youngs had in 1847 the apparently perfect legal title; and if such were the case, the judgment of the defendant Schurck would become a perfect and valid lien on it at the time it was obtained, in 1849.

The first question, therefox’e to determine is, what was the actual title of Youngs? The consideration of the deed to Youngs was two thousand dollars. He paid no part of lt; he never claimed to do so. The conveyance was intended for the benefit of the plaintiff, who -was then a minor of the age of about fifteen years. The plaintiff did not in fact advance the money, nor was it paid out of the property. One-half of it was advanced by her mother, the residue by her father—the latter being subsequently repaid to him out of the proceeds of a mortgage upon the premises executed by Youngs and confirmed by the plaintiff. Youngs never had possession of the px’emises, and only once collected the rent of it from the tenant, for the benefit of the plaintiff. The rents and profits of the premises wei’e always received by the plaintiff, or by her father for her benefit. The purchase was in fact made for the benefit of •(¡he plaintiff, and was intended as a gift or advancement to her on the part of her parents. No question arises in the case between- her and her parents.. Her mother is dead, and her father desires to give effect to the deed to Youngs for her benefit. No question arises between her father, George H. Siemon, and his creditors. Their claims, if any they have, are not involved in this controversy; nor are they parties thereto. No question arises between Youngs and the plaintiff. He admits that he took the title for her benefit; that he so intended at the outset; that he did not advance the consideration; that she always had the equitable title; and he in fact vested, or attempted to vest the legal title in her by a conveyance of the premises to her, in May, 1853, after the sheriff’s sale but before the sheriff’s deed. The difficulty in the plaintiff’s title, if any there be, arises under those sections of the revised statutes which declare that where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another—except in cases where the title is thus taken without the knowledge óf the person paying the consideration, or where the alienee purchases the land with money belonging to another in violation of some trust—no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the person named as the alienee in such conveyance, subject, however, to a.resulting trust in favor of the creditors of the person paying the consideration, to the extent of their just demands. (1 E. S. 728, §§ 51, 52, 53.) By these sections, it is claimed on the part of the appellants, a complete legal title was vested; by the transaction in question, in Youngs. It is fairly inferrible from the phraseology of these sections, and is obvious from the notes of the revisers, that the principal if not the only mischief intended to be remedied and uprooted by these sections was a secret trust for the benefit of the p.erson paying the consideration. It was not deemed consistent with fair dealing and just policy, that a person for whose use such a conveyance was made, and who was designed to reap all the benefits thereof, should thus conceal a real ownership under an assumed name; and the statute, therefore, virtually imposed upon him the penalty of the forfeiture of his estate.. No such argument—at least not in all its force—applies to the case of a gift or advancement made by a parent to a child, where the latter was intended to be vested with the beneficial ownership and the complete equitable title. It may be difficult to give a satisfactory reason why the title should not have been conveyed directly to the child for whose benefit the conveyance was intended; but whether the real motive was to conceal the character of the transaction from other children or equally deserving claimants upon the bounty of the parent, or from a supposed inconvenience or embarrassment in making the conveyance to a minor, or from ignorance or injudicious advice, or any other cause, we are able to see that the mischiefs of such a transaction are by no means as great as those arising from a secret trust in favor of the person paying the consideration himself. And we are to give a construction to this statute in accordance with the legislative intent, gathered primarily from the terms of the statute itselfj and such other sources of information, as the notes of cotemporaneous commentators, as are within our reach. Looking again .at the statute, the language is, no use or trust shall result in favor of the person by whom such payment shall be, made; which is not necessarily prohibitory of a resulting trust for- the benefit of a third person, in whose favor, for family or other lawful and sufficient reasons, it was deemed proper to make some provision. It is true, the section just quoted immediately afterwards contains the further words: “but the title shall vest in the person named as the alienee in such conveyance.” But these words must, I think, be read in connection with the preceding clause, and as if these words had been subjoined to the words last quoted, “ as between such alienee, or parties deriving title through hint, and the person paying such consideration.” (See also Hosford v. Merwin, 5 Barbour, 51.)

Another exception has been engrafted or limitation made upon the apparently sweeping and comprehensive terms of this section, to wit: that if it does not appear that the absolute character of the deed, upon its face, was known to or designed by the person paying the consideration, it will be presumed that it was so written by fraud or mistake, and without any intent to violate the statute. This is clearly the effect of the cases of Day v. Roth (18 N. Y. 448), and Lounsbury v. Purdy (18 N. Y. 515.)

The principle of. those decisions applies with full force to .the present case. The deed was taken absolutely to Youngs, without the knowledge or consent of the plaintiff. And, although it appears that both Siemon, the father, and Mrs. Siemon, the mother, and Youngs, the grantee, designed that the deed should be taken' in the name of the latter for the benefit of-the plaintiff, it does not appear from their testimony, nor otherwise from the case, nor from the statement of facts found by the court, that they designed that the deed should be absolute on its face without any declaration of the trust or equitable ownership in favor of the daughter.

We may, therefore, without doing violence to the language of the statute, except this case from its operation in accordance with the manifest equity of the transaction; foi there is nothing to indicate in the slightest degree but everything on the contrary, to repel the presumption that Youngs obtained any credit with the plaintiff in the judgment growing out of his supposed ownership of the property in question.

When, therefore, Youngs conveyed this property to the plaintiff, he did no more than discharge an equitable and conscientious obligation, and carry into effect the agreement under which the property was conveyed to him. Resting under this obligation, equity would have compelled him to fulfil it, and although he had the legal title, it was a mere naked title, without interest, and one upon, which the judgment could not fasten as an effeótive lien, The defendants cannot then be protected, unless they can show some right under their purchase independent of and superior to that which Youngs himself possessed.

Section fifty-four of the statute already quoted (1E. S. 728, § 54), declares that no implied or resulting trust shall be alleged or established to defeat or prejudice the title of a purchaser for a valuable consideration, and without notice of the trust. The defendants- are not .within this category, for the following reasons: 1. The plaintiff’s deed was on- record before the purchase at the sheriff’s sale. 2. The possession of the premises, and the receipt of the rents and profits, were never in Youngs, but always in the plaintiff, or in her father for her. 3,. William Austin and Schurclc had actual knowledge before the sheriff’s sale that Youngs did not hold the deed for his own benefit. 4. Mary Austin was not a purchaser for" a valuable consideration from her brother. 5. Neither William Austin nor Mary Austin, if notified before the purchase by them of facts affecting Youngs’ title, can be protected upon the ground that they had no such knowledge at the time of the judgment. In this particular their purchase takes effect from the time of the actual sale, and does not reach back by relation to the date of the judgment. (Jackson v. Post, 15 Wendell, 588, 596; White v. Carpenter, 2 Paige, 217; In re Howe, 1 Paige, 125; Buchan v. Sumner, 2 Barb. Ch. Reports, 207; Wilkes v. Harper, ibid. 350; Arnold v. Patrick, 6 Paige, 316.)

This disposes of the case upon the merits. It only remains to consider the formal question whether the plaintiff is barred from equitable relief in this action because she might, have interposed it as a defence in the ejectment suit. 1. It is sufficiently plain, perhaps, that the plaintiff in tMs suit might have successfully defended the ejectment suit under the equitable title she now claims. 2. But she desired and obtained more comprehensive relief than she could obtain in the ejectment suit. This was: 1st. To set aside the sheriff’s deed to Mary Austin as a cloud upon the title. 2d. To compel a conveyance or release from Mary Austin and William Austin of their interest in the premises. 3d. To declare the judgment of Schurck to be no lien upon the premises, and perpetually enjoin its enforcement against them. To accomplish this, Schurck, not a party to the ejectment" suit, was a' necessary party to this suit.

For some of these purposes, I think-she was entitled to institute this action. The z-esult is that the judgment of the coúrt below should be affirmed with costs.

Davies, J.

The reasons given by Judge Emott (38 Barb. 9) for the judgment appealed from, are to my mind satisfactory and conclusive. It may, I think, be added thaS the provisions of the revised statutes relied upon have no application to this case. At common law, if a conveyance is made to one pei’son, and the consideration is paid by another, a trust in equity results in favor'of him who paid the money. If. this rule has not been modified or abrogated by the revised statutes, it will be conceded that od the payment of the money for'the purchase by Youngs, ¡8 trust resulted in favor of this plaintiff. It was paid fc s her and for her. benefit, and the same results follow as i t she had paid it herself. But it is contended that this rul > of the common law has been changed, as it undoubtedly has, by the provisions of section fifty-one of the revised statutes, relating to uses and trusts (3 B. S. 5th ed, p. 15), which declares that when a grant for a valuable consideration is made to one person, and the consideration is paid by another, no use or trust shall result in favor of the person by whom the payment is made, but the title shall vest in the person named as alienee, subject only to the provisions of the next section. But the fifty-third section declares that the provisions of the fifty-first section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration. Now it is found as a fact in this case that this plaintiff, who in substance .paid the consideration for this conveyance, had no knowledge of, and did not consent to, Youngs’ taking the conveyance absolutely and in his own name. It follows, therefore, that the provisions of the fifty-first section are inapplicable, and that the rule of the common law is revived, and by it the rights of the parties are tó be settled. '

We would also be justified in assuming, to maintain this judgment, if it were necessary, that neither Mr. or Mrs. Siemon gave any consent or had any knowledge that Youngs took the conveyance as an absolute one, in his own name. It is not found that they, or either of them, had such knowledge or gave such consent, and we therefore assume they had not, and never gave it. (Grant v. Morse, 22 N. Y. 323.) Neither of the Austins were bona fide purchasers, and can claim nothing as such. (Wood v. Robinson, 22 N. Y. 564.)

The judgment should be affirmed, with costs.

All the other judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    William C. Weed v. The New York & Harlem Railroad Company.
    Where there are no exceptions contained in the case,- as settled, nor any allusion to any, as having been taken at any time, there is nothing for this court to review.
    Where the only exceptions taken relate exclusively to the' finding of the referee upon matters -of fact—no exception being taken to the decision upon the law—they present no question which this court ■ can review according to the settled practice.

      Appeal from a judgment of the Supreme Court in the second district.

    The action was brought to recover damages alleged by the plaintiff to have been sustained by him, by reason of the improper construction of the railroad through Ins farm, whereby a stream of water—convenient and useful for watering the plaintiff’s horses, cattle, &c.—was diverted from his lands, to his injury. Other causes of action were specified in the complaint, but no question arises as to any of them. On the trial, the plaintiff introduced evidence tending to show that the defendant, in constructing its road through the farm, turned a small stream of water, issuing from a spring on the west side of the railroad track, so that it did not run across said track into the field on the east side of the road as it did before said road was built. The action was tried before a referee, who found as matter of fact that, previous to the construction of the road by the defendant, there was and for a long time had been a stream of water running through said farm and emptying into the Cedar river. And that the defendant, about the first of January, 1848, constructed its road through and across said farm in such a manner as to divert said stream of water from its natural course, and thereby deprived the plaintiff of the full benefit of said stream, to his damage $70. As •a conclusion of law, the referee held and decided that the plaintiff was entitled to judgment for that sum, with costs of the action. The case as settled contains no exceptions whatever. In the printed papers, however, after a general statement at the commencement—containing the time of the commencement of the action, the reference, time of trial, the finding of the referee, the amount of the judgment, with an abstract of the pleadings—the first paper is found entitled in the action as follows: “ To which report the said defendant duly excepted as follows: Is#. The said report is not warranted by the evidence. Because, .if the said stream was convenient for watering cattle, &c., as described >n complaint, it was not diverted or changed from plaintiff’s possession. Most of the railroad lands, and lands in plaintiff’s possession east of the railroad, were at all times abundantly supplied with water. 2d. The diversion only «hanged the stream on plaintiff’s land, and returned and restored it to lands in possession of the plaintiff, east of the railroad. And, lastly. The report of the referee does not show for what time, and when and wherein the plaintiff Was injured to the amount of the referee’s report.” This purports to be signed by the defendant’s attorney. There is nothing preceding this in the printed papers to show to what it refers. Then follows the summons and complaint, the answer, order of reference, the referee’s report and judgment. But it does not appear in any way whether this paper, purporting to be exceptions, forms any part of the judgment roll. The defendant appealed to the general term of the supreme court, where the judgment was affirmed, and then brought his appeal to this court. The cause was submitted on printed case and points; without argument.

      C. W. Sandford, for the appellant.

      A. Ryder, for the respondent.
   Johnson, J.

The appeal in this case brings up nothing whatever for review. There are no exceptions contained in the case, as settled,' nor any allusion to any, as having been taken at any time.. There is nothing, therefore, to review, as has been repeatedly held by this court. (Hunt v. Bloomer, 3 Kern. 341; Magie v. Baker, 4 id. 435.) The printed paper, purporting to be exceptions taken at some time, does not appear by anything which can be gathered from any statement in the printed book, or from its connection with other papers, to have been a part even of the judgment roll. For aught that appears, it was a mere loose paper, filed in the case. But if it was a part of the judgment roll, it could not avail the defendant, as it is not referred to in the case, and is not brought up by the appeal as any part of su'ch case. In addition to all this, if the. exceptions which appear, were in the case, they would present no question which this court could review, according to the settled practice. No exception is taken to the decision upon the law. They relate exclusively to the finding upon matters of fact, which would not be reviewable here. (Davis v. Spencer, 24 N. Y. R. p. 390; Hoyt v. Thompson’s Executor, 19 id. 212.) The judgment should therefore be affirmed.

All the judges concurring, judgment affirmed.


author: Wright, J. Ingraham, J.

text:
    The Bank of the State of New York v. The Muskingum Branch of the Bank of the State of Ohio.
    A bill drawn payable to an individual as cashier is, in judgment of law, payable to the bank of which he is the officer.
    A bill drawn by B. and H.. payable to the order of “D. 0. C., cashier,” after being discounted and owned by the M. bank, of which D. C. C. was cashier, was indorsed by him “ pay to the order of E. L., cashier—D. C. C. cr.,” and was sent, in the regular course of business, to the Ohio Life Insurance and Trust Company, its agent, for collection, which company transferred it to the plaintiff: Held, that the bill'being the property of the M. bank, the indorsement “D. C. C., cr.,” was made by the proper officer, for a proper purpose, and was, therefore, an official and not an individual indorsement, and bound the bank, as indorser, to a bona fide holder.

      Held, also, that the bill having been negotiated to the plaintiff, which was the bona fide holder, the indorsement concluded the hi. bank, notwithstanding the Ohio Life Insurance and Trust Co., its agent, acted in bad faith, and disobeyed its instructions by negotiating the bill for its own benefit, instead of collecting it.
    That the plaintiff, having become the holder of the hill in good faith, and in the regular course of business, should not be made to bear a loss occasioned by the neglect of the cashier, and the bad faith of the collecting agent of the M. bank.

      Appeal from a judgment of the Supreme Oourt.

    The action was brought against the defendants as endorsers of a bill of exchange as follows:
    “No. 1,305. Zanesville, O., July 21, 1857.
    11 Sixty days after date, pay to the order of D. C. Converse, Esq., cashier, twenty-two hundred and forty dollars, as advised, and charge the same to account of “Your obedient servants,
    “BEAUMONT & HOLLINGSWORTH.
    “To W. R. Eokart, 118 Broad st., New York. $2,240.”

      (Written across face.) “ W. R. Eokart.”

      (Endorsement.) “Pay to the order of Edwin Ludlow, cashier. “D. C. Converse, Or.

    “Edwin Ludlow, Or.”

      The complaint averred, that D. C. Converse was and is the cashier of the defendants, and their officer authorised to deal with their funds and negotiable paper; that the bill was actually drawn to the defendants, and endorsed by ' the' defendants to the Ohio Life Insurance and Trust Company, and by the Ohio Life Insurance and Trust Company endorsed in blank, and that before maturity the bill was delivered to the plaintiff, for value.
    The defendants, in their answer, denied that D. C. Converse was or is authorised to deal with the negotiable paper in any other manner than as their cashier and special agent. As a further defense it was averred and stated that the defendants were the sole and absolute owners of the bill; that after becoming such owners they transmitted it to the Ohio Life Insurance and Trust Company, to its office in the city of New York, for collection for their account, and for no other purpose, and upon no other account whatsoever. That said company failed, on or about the 24th August, 1857, having been insolvent and embarrassed for four months previous thereto; and that the alleged trans fer of said bill to the plaintiff was made fraudulently, cor ruptly, usuriously, and in bad faith, and without any authority, and in contemplation of the insolvency of the said Ohio Life Insurance and Trust Company; and that the plaintiff did not receive the same in the usual course oí business, but with notice of the premises as aforesaid, or under circumstances to put said plaintiff upon inquiry as t* the right of said trust company and its cashier, to endorse or transfer the same, and as to the right of the defendants thereto. And it is averred -that the plaintiff was chargeable with notice that the said acceptance was riot the property of the Ohio Life Insurance and Trust Company, jbut the property of the defendants. The cause was referred to William Kent, Esq., who gave judgment for the plain- . tiffs. The referee found as'facts that the defendants and the Ohio Life Insurance and Trust Company were corporatians incorporated by the state of Ohio. That at the time the bill was endorsed and sent to the Ohio Life Insurance and Trust Company, D. C. Converse was the cashier of the defendants, and Edwin Ludlow was the cashier of the trust company. That the bill was discounted by the Muskingum Branch Bank, in the regular course of business, -and was afterwards endorsed by said Converse, the cashier thereof, and transmitted to the Ohio Life Insurance and Trust Company, in the city of’New York, for- collection only. That the defendants did not part with their property in the bill to the Ohio Life Insurance and Trust Company; but that company received it as the agents of the defendants “for collection, and for no other purpose.” That it was transferred by the Ohio Life Insurance and Trust Company to the plaintiff as 'collateral security; that the plaintiff had not, at the time of such transfer, actual notice of the ownership of said bill by the Muskingum Branch Bank, but received the same bona fide, and in the usual course of business.
    As conclusions of law, the referee decided that the plaintiff acquired a title to the bill of exchange by virtue of the transfer to it aforesaid; and that the Muskingum Branch Bank had become liable to pay the amount thereof, with interest, to the plaintiff, by reason of the said endorsement thereof by D. C. Converse, cashier of said Branch Bank, and the transfer by the Ohio Life Insurance and Trust Company.
    At the close of the evidence the point was taken by the defendants’ counsel, and over-ruled by the referee, that the Muskingum Branch Bank could not be made liable on the endorsement, “D. C- Converse, cashier,” said bank no where appearing on the said bills, and the said Converse having no authority to bind the bank.
    Judgment being entered for the plaintiffs on the report of the referee, the defendants appealed to the supreme court, where the judgment was affirmed. The defendants brought the present appeal.

      G. C. Goddard, for the appellant.
    The defendants are not liable on the draft as endorsers. The endorsement of a draft or note which is made payable to “A. B., cashier,” or to “A. B., agent,” does not prima facie at least, create any legal liability except against the person whose name appears upon it. No person to whom the paper is thus transferred by endorsement has any right to assume, or does assume that any other person than the endorser whose name appears is liable. The endorsee sees that he gets .a good title to the paper, for it is transferred to him by the person to whom it is .payable. The' question therefore sometimes made whether an endorsement can be effectual to pass the title but not to create the liability of endorsee does not arise; Converse, the payee, endorsed it; of course the title passed, and in the* hands of a bona fide holder Converse was liable. As the endorsement stands it deceives no one. The law being settled that such an endorsement prima facie creates no liability against any one whose name does not appear upon it, it is received with that knowledge and understanding. It is begging the question therefore to say that a person taking the draft in good faith and for value, is deceived unless he is permitted to hold liable as endorser some person whose name nowhere appears on the bill. But if the endorsee seeks to go further than the face of the bill and to make liable as endorser a third party not named, the onus of mailing out a case which will thus subject such third party, by proof from without, lies on him. Prima facie there is no such liability. Nor can such liability be established except by such proof, or its equivalent, as was made in the case of the Bank of Genesee v. The Patchin Bank (19 N. Y. R. 312). In that case it was shown that the endorsement was made by the direction of the Patchin Bank for the purpose of getting the note discounted by the Bank of Genesee for account of the Patchin Bank, which received the proceeds of the discount. In that .case when before this court, as reported in 3 Kern. 309, it appears that the judge'at the circuit charged the jury, that “if the bill was the property of the bank, the cashier had authority to endorse it, and that if the cashier had special authority from the bank to endorse it, the bank was bound by that endorsement, although it was made for the accommodation of other parties.” This court held such direction to the jury erroneous, and reversed the judgment. Judge Denio referring to this charge says: “ my brethren, however, do not now wish to express an opinion upon any other question than that the portion of the charge I have just mentioned as it stands unqualified is erroneous.” Thó decision, 3 Kern., is approved in 19 K. T. B. Judge Denio holding also that the Patchin Bank would have been bound, if the Bank of Genesee had received the paper" on representations from the Patchin Bank, that the endorsement was for their bénefit. That case establishes that such an endorsement of itself imports no liability, except of the person making the endorsement; that the endorsee does not receive it on the faith of any other liability; in conformity to the previously adjudged cases in this and other states. It also shows how and by what proof, a liability may be established against a third party, whose name is not on the bill. If it is open to the plaintiff to go beyond the endorsement as it appears on the paper, and prove by paroi the actual contract between a third party and the endorsee, then such proof in the case now before the court shows that there was no such contract between Converse or the defendants, and their endorsee Ludlow, or the plaintiffs. It was shown and found by the referee that Converse sent the draft to Ludlow for collection only; that Ludlow or the Ohio Life Insurance and Trust Company, received it for collection and for no other purpose; and that the defendants did not part with their property in said draft, and that the plaintiffs did not know that the defendants were the owners of the draft. And there was Ho evidence that the plaintiffs knew the defendants had at any time any interest, in it. No rule of policy requires that such an endorsement of an agent or a cashier of paper payable to them, should, of itself, create a liability against a third party, the owner of the paper. On the contrary, policy requires adherence to the opposite doctrine, which puts the taker of paper on inquiry, if he seeks to hold any one liable except those whose names are on it; and requires him to ascertain, if an agent seeks to make another liable, whether he has due authority to create such liability. The gross breaches of trust of which the agent of the trust company was guilty could not have beer committed, but for the facility with which 'banks and bankers in its neighborhood, knowing the character of its business, received collaterals from it. This facility should not be encouraged. The plaintiffs in this case took the draft, not from Converse, nor from the defendants. The witness for the plaintiffs Says it was received in place of one of the collaterals before given, but from what person it was received is not shown. There is no evidence thai the plaintiffs knew of whom or of what bank D. C. Con verse was cashier; no inquiry or representation was made on that subject. They took the draft simply on the faith of the prior parties to the bill, and of the Ohio Life Insurance and Trust Company,' and of D. C. Converse, and had no knowledge that he represented anybody. On the contrary, the referee finds that-the plaintiffs did not know that the defendants owned the draft. The finding of the referee .that the plaintiffs received the draft bona fide, in the usual course of business, is of no importance. That merely shows that they had a right to recover against the. parties to the bill, but does not advance them a step towards charging the defendants. So that, unless the court holds that an endorsement of a note or draft “A. B., agent,” or “A. B., cashier,” which is payable to “A. B., agent,” or “A. B., cashier,” which draft or note has never been negotiated, but merely forwarded for collection, subjects a third party, the. owner of the paper, to all the liabilities of an indorser in favor of a holder, who has no knowledge who A. B. represents, or whether he represents anybody, the plaintiffs in this case cannot recover, and the judgment must be reversed. I understand, from the.decisions of this court, that they have never so decided; but have decided that in such case the third party'is not liable, and that this is the current of authorities here and elsewhere. Isolated expressions of a judge, detached from the precise case which he is deciding, do not show the opinion of the court, nor his opinion on the particular case. The case of the Bank of Genesee v. The Patchin Bank, as reported in 19 fí. Y. Bep., shows that this court adheres to the general rule, and also shows whát constitutes an exception to it. It appeared in that case in 19 N. Y. and 3 Kern, that the Bank of Genesee discounted the paper at the request of the Patchin Bank, This fact is stated in the opinion given as controlling. ■ As reported in 3 Kern., all the judges concurred in reversing the judgment on. the special ground that the charge was erroneous in not adding thereto n the qualification that the plaintiff had received and discounted the bill under a representation of the defendant fchat it was its bill which the cashier forwarded to be discounted for the defendant’s benefit,” and that it was not sufficient, and that the cashier had special authority to endorse it. The judges refer to the close of Judge Denio’s opinion as containing the true rule. And the opinion of the same judge, as reported in 19 N. Y. in the same case, in pages 320 and 321, is to the same effect. According to the position of the plaintiffs, it was sufficient for them to prove the single fact that Converse was the cashier of the defendants. Nor. can plaintiffs maintain this action unless that position is correct. The case of the Bank of Genesee shows that such is not the law as decided by this court, Otherwise the reversal in 3 Kern, was wrong; and the reasons given by the court on both occasions are superfluous. .If such had been the law, the charge of Judge Marvin, in 3 Kern., was perfectly correct. But this court held it.was erroneous, and stated wherein.
    In the case before the court there was.no evidence that the plaintiffs had any knowledge of the defendants’ connection with the draft. A vast amount of negotiable paper is thus transmitted from one part of the country to another, by banks, brokers and others, and endorsed by an .officer or agent, to whom it is made payable, and sent for collection solely, and on which the name of the owner of the paper does not appear. Why should such owner be held liable as an endorser, except to some person who has taken the paper on the faith of such ownership? What reason? of sound policy require it? In the case of Gould v. The Town of Sterling (23 N. Y. R. 462), it is said “one who takes a negotiable note or bill of exchange, purporting to be made by an agent, is bound to inquire as to the powei of the agent.” In the case before the court, if the plaintiff1* had relied on the endorsement for their security, they would have inquired as to D. C. Converse, cashier, whom he represented; and what the draft was sent for from Ohif - to New York. The slightest inquiry would have informed them of the truth. The word “cashier” of itself shows n want of authority to create the liability- of endorser against the bank whose cashier he is. It is not within the scope of his official powers. If claimed to be, it must be proved; here it was disproved. He may have the power conferred on him, as in the case of the Patchin Bank; if he is thus authorized, and negotiates paper for. the bank to a party who so receives it, his principal is liable, not himself.
    The case of The Bank of the State of New York v. The Farmers' Branch Bank (36-Barb. 332), in the first district, presented this question. The complaint was dismissed at the circuit, on. this ground, and judgment approved at general term. On appeal to the court of appeals this judgment was reversed. I have understood that no written opinion was given in this court, and that the court intimated that the facts should be passed upon by a jury; that the dismissal of the complaint was erroneous; and that the court did not decide the question now presented. If the court held, that the liability of the Farmers’ Branch Bank depended on the facts, other than the mere fact that the person who endorsed the paper was the cashier of that bank, then they decided that the mere proof of the latter fact did not create such liability. If Converse was sued by the plaintiffs, and it should appear, as it appears in this case, that the plaintiffs did not know whom he represented, and did not take the draft on any representation or knowledge on that subject, would they not recover? Judge Gbeene, in the case in 19 hi. Y. B., states the general rule: “as a general proposition it is undoubtedly true that one who signs a writing as agent, trustee or president, is regarded as merely describing himself, and hence is held to be personally liable. And the exception to the rule is thus stated: “ but when a writing is thus executed with full authority from a principal, and is received by the payee as the obligation of the principal, the party on whose account it is executed is alone liable.”

      A. W. Clason, for the respondent.
    The bill drawn to D. C. Converse, cashier, was in judgment of law payable to the bank of which he was the officer. (1 Denio; 608.) The endorsement, “D. C. Converse, cashier,” was made by theproper officer, for a proper purpose., It was, therefore, an official endorsement, and bound the bank as endorser.
    I. Because the ¿ashier is legally the recognized general agent of a bank (11 Barb. ,196); and, in the diversified exercise of the- duties of a general agent, the liability of the principal depends, not upon form! hut upon two facts, viz: that the act was done in the exercise and within the limits of the powers delegated. (5 Wheaton, 326.)
    IT. D. C. Converse, prima facie, was the owner and endorser. Upon proof of his official position, discount by the bank, and transmission for collection, his personal liability ceased. (1 Kern. 200.) Therefore, the words “D. C. Converse, cashier,” under the evidence, means “ the Muskingum Bank.” They mean that, when, as an official, he is payee; therefore, they must mean that, when, as such, he is endorser.
    III. The words necessary to the intention of the language used may be supplied. As a bank can only act through an agency, when the agent acts and signs as such, the name of the principal may be added at any time, or will be intended to have been added. (3 Kern. 318.) It seems useless to argue this case since the publication of 19 N. Y. B. 312. A subtle distinction, however, is claimed to exist between that case and this, viz: in that, *the bill was sent for discount, in this, for collection; therefore, in that case, the intention of the endorsement was fulfilled—in this, not. The position is incorrect, as a matter of fact. The intention in each case, to make tho bank a party to the paper, is equally carried out, and the fallacy consists in confounding the intention of the endorsement with the expectation of its result. The object of the endorsement was to create a privity between any holder and the parties to the paper, and accomplished it; but there was not anything on the face of the endorsement which would convey to the world knowledge of the hopes of the endorser, nor was the world bound to ascertain that extrinsic fact. The Muskingum Bank reposed confidence in the caution of its cashier, and in the honesty of its agent. The cashier neglected to add the restrictive words which would have limited the negotiability of the bill, and the agent abused the trust. It now asks that the plaintiff, not itself, shall bear a loss occasioned by the negligence of the one and the bad faith of the other agent. The law has too long been settled the other way to need a citation of authority!
   Wright, J.

The question in the case, on the facts, is a narrow one. The defendants discounted a bill of exchange in the regular course of business, which was endorsed by one Converse, their cashier, and transmitted to the Ohio Life Insurance and Trust Company, in the city of New York, for collection only. Before the bill matured the trust company transferred it- to the plaintiffs as collateral security for borrowed money. The plaintiffs, at the time of such transfer, had no actual notice of the ownership of the bill by the defendants, but received the samé bona fide, and in the usual course of business. The bill was made payable to the order of D. C. Converse, cashier, and endorsed “pay to the order of Edwin Ludlow, cashier, D. C. Converse, Cr,” The only question is, whether this was the endorsement of the Muskingum Branch Bank, or of Converse individually. If it was an official and not the private act of Converse, in fact done on behalf of the bank, as the bill was negotiated to the plaintiffs, who are bona fide holders, the endorsement would conclude the bank in favor of them, though the Ohio Life Insurance and Trust Company, its agent, acted in bad faith, and disobeyed its instructions, by negotiating the bill for its own benefit instead of collecting it.

It seems to me, on the facts, that but one interpretation can be given to Converse’s acts; Converse was the defendants’ cashier. A bill drawn to “ D. C.?Converse, cashier,” was discounted by the defendants. The facts are- found, and it is not controverted, that the Muskingum Bank owned the draft, and that it was sent to the Ohio Life Insurance and Trust Company for collection.- The trust company received it from the bank with the endorsement “D. C. Converse, Cr.” Now, how can it be pretended that this was the individual and not the official act of Converse ? Although “ D. C. Converse, cashier,” was the payee of the draft, the bank claimed it as its property, and to deal with it as such. Indeed a bill .drawn to “ D. C. Converse, cashier,” is¡ in judgment of law, payable to the bank of which he is the officer. Being the property of the bank, the endorsement “ D. C. Converse, Cr.” was made by the proper officer, for a proper purpose. It was, therefore, an official endorsement. Had there been nothing in the case to connect- the bill with the defendants’ bank, Converse would have been regarded as the payee and the endorser individually, and the abbreviation affixed to his name considered as a descriptio personae; but when his official position is shown, connected with the facts that the bill was the property of the bank, and in the regular course of business was transmitted to its agent for collection, it is then shown that the endorsement is an official one. The case of The Bank of Genesee v. Patchin Bank (19 N. Y. R. 312), is, on this question, a controlling authority. In that case, S. B. Stokes, the cashier of the Patchin Bank, sent to. the Bank of Genesee, to be discounted, a bill of exchange payable to the order of “ S. B. Stokes’ Cas.,” endorsed by him with the same addition to his signature, and enclosed in a letter dated at the banking house, and signed “ S. B. Stokes, Cas.” It was held that these circumstances imported that the endorsement was that of the Patchin Bank, in the regular course of-business, and not that of S. B. Stokes individually. There is this difference only in the cases! In the one cited the bill was sent for discount, in this for-collection; but plainly that could not affect the question. The intention in each case to make the bank a party to the paper is equally carried out.

I think, therefore, the endorsement in this ease was that of the Muskingum Bank, and bound it as such to a bona fide holder of the bill. Its liability as endorser certainly cannot be qualified by the consideration that the bill was sent to its agent not to be negotiated, but for collection only. The object of the endorsement was to create a privity between any holder and the parties to the paper, and it accomplished it. There was nothing on the face of the endorsement to convey to third parties knowledge of the single purpose for which it was made, nor were they even bound to ascertain that extrinsic fact. The bank reposed confidence in the caution of its cashier, and in the honesty of its agent. - The cashier neglected to add the restrictive words which would have limited the negotiability of .the bill, and the agent abused the trust. I do not think that the plaintiff, who became "a holder in good faith, and in the regular course of business, should bear a loss occasioned by the negligence of the one and the bad faith of the other agent.

The judgment of the supreme court should be affirmed.

Ingraham, J.

The facts in this case show that this note, payable to the order of the cashier of the defendant, and •endorsed by him as cashier, was sent to the Ohio Life and Trust Company for collection, and was by them fraudulently discounted with the plaintiffs. The question is whether the defendants are liable as endorsers,

It is conceded that under the case of The Bank of Genesee v. The Patchin Bank (19 N. Y. Rep. p. 309), the bank would not be liable on such an endorsement, if made is an accommodation endorsement, and known to the party taking it to be such. In Babcock v. Beman (1 Kern. 200), it was held that such an endorsement by the cashier was not the endorsement of the cashier individually. And the subsequent decision in The Bank of Genesee v. The Patchin Bank (19 N. Y. Rep. p. 312), established the liability of a corporation on such an endorsement where the party discounting it was informed or had reason to believe the proposed discount was on behalf of the bank for whom the cashier acted. “The endorsement of Stokes (Denio, J., says), the facts being shown, was the endorsement of the bank, and not Stokes’ individual act, and is just as available as though it had been perfect in form.”

These cases dispose of the questions as to the liability of the defendants, both as to the form of the' endorsement and as to the extent of the defendants’ liability when the note is discounted for the benefit of the bank.

The only remaining question is whether the bank is liable on such an endorsement where the note has been fraudulently put in circulation by an agent of the bank without any authority to do so.

Upon the trial of this cause it was found by the referee that the plaintiffe were bona fide holders for a good con sideration, in the usual course of their business, of this paper; that the note was passed to the plaintiffs by thy Ohio Life Insurance and Trust Company without authority, and that the note was sent to that company by the bank fox collection only.

In the cases of The Farmers' and Mechanics' Bank of Kent v. The Butchers' and Drovers' Bank (16 N. Y. 125) and Meads v. The Merchants' Bank of Albany (25 N. Y. 143), the bank was held liable to a bona fide holder upon, a certificate of its officers, although such certificate was false, upon the ground that the officer so certifying way authorized to do similar acts for the bank and the holder was justified in relying thereon. This case differs from those only in the fact that the note here was received by the bank as collateral security for money then advanced. The trust company had authority to discount notes, and there is nothing to show that the bank had any reason to suppose this note was not taken by them in the ordinary course of business. '

After it is settled that the bank would be liable if the note had been discounted for the use of the corporation, and that, they had authority to make stich a contract, I can see no good reason why the same liability should not exist to a bona fide holder for value as in the case of any individual whose paper is fraudulently put in circulation. The principle upon which an individual is held liable, viz: that of having employed an agent and enabled him to pass the paper away and receive the proceeds by trusting him with it, applies just as strongly to the bank in the present case. The bank employed the trust company as its agent to cob lect the note, and placed it with the company for that purpose. By having the possession, they were enabled to pass it to the bank and receive its value from them. Under the cases above cited, I see no reason why the bank should not be held liable. It is said that where a note is signed or endorsed “A. B.,’agent,” the person taking it is bound to inquire as to the authority of the agent. That would be so far as to ascertain the fact of agency. If, in the present case, Converse, who endorsed the note as cashier, was not in fact such officer, the plaintiffs could not recover. They would have been bound to ascertain that fact before trusting to his acts in that capacity; but when that is shown, then, according to the cases, his power as cashier authorizes him to transfer paper by endorsement, and it is not necessary to make any .special inquiry as to his authority to endorse any particular note.- (Mechanics' Bank Association v. N. Y. and Saugerties White Lead Co., 23 How. Pr. p. 74; Merchants' Bank v. McColl, 6 Bosw. 473; Belmont Branch Bank v. Hoge, 7 Bosw. 543); but only as to his official character and authority.

The judgment should be affirmed.

All the judges concurring, judgment affirmed.


author: Selden, J. Johnson, J.

text:
    Gertrude E. Selden, Executrix, &c., of David Selden, deceased, v. The Delaware & Hudson Canal Company.
    Orders'denying motions to set aside a verdict and for a new trial, on the ' ground of surprise, &c., are. not intermediate orders involving the merits and necessarily affecting the judgment, within subdivision two of the eleventh section of the code of procedure.
    They are hot intermediate orders, in any sense, but are entirely outside of the judgment.
    The motions for such orders are not summary applications after judgment, within the third subdivision of the same section, which only relates to orders that recognize the original regularity and validity of the judgment, and are based on facts and circumstances occurring subsequently.
    Motions of that kind are addressed to the discretion of the court below, and for that reasoh cannot be reviewed on appeal.
    'The charter of the Delaware and Hudson Canal Company making no provision that a certified copy of the bond given by the company to a land owner, for the payment of damages to be assessed, &c., as provided in the twenty-second section of said charter, may be read in evidence, a copy is not admissible, if objected to. 1
    Such bond being required to be filed with the county clerk; the county clerk’s office is the proper depository, and the clerk’s acceptance of the bond must, under the statute, be regarded as the acceptance of the party; although a delivery to the party would be good.
    The Delaware and Hudson Canal Company possesses the power, under its charter, to make an enlargement of its canal, and can, if necessary, appropriate lands for that purpose, under the exercise of the power of, super eminent domain conceded to it in its chatter.
    A permanent interest in land, even by way of easement, can not be created by or under a paroi license.
    A paroi license is effectual to justify every thing which may be done under it prior to its revocation.
    A paroi license to enlarge a canal will, if proved, constitute a defense or justification for all that is done under it; although it gives no permanent right to maintain the enlarged work.
    Such a license will authorize an increase of the depth of the channel of the canal, as well as of the width; and such increase of depth may be produced by excavations from the bottom, or by raising the banks, or by both; and the license, so long as it remains in force, will not only relieve the licensee from liability for making the enlargement, but also from all liability for any consequences which may naturally flow from such enlargement.

      If the injury to the licensor’s land is owing to any want of skill or care in making the enlargement, and is not the natural result of the work, if carefully done, the license will not constitute a defense.
    A license to do an act cannot he held to screen the licensee from the consequences of carelessness or unskilfulness in the performance of the act.
    This action was commenced by David Selden in the year 1854, to recover damages for. lands alleged to have been taken by the defendants in the enlargement of their canal, after the year 1846, and for injuries to other lands belonging to the plaintiff adjoining those thus taken, by water which soaked through the banks in consequence of raising the banks and increasing the depth of water in the canal. The plaintiff alleged that the defendants were incorporated by the legislature in the year 1823, with power to construct a canal or slack-water navigation, of suitable width, depth and dimensions, to be determined by the corporation, from the Delaware river to the Hudson, and that prior to the year 1835, they constructed and completed their canal of such width, depth and dimensions as were determined by the corporation to be suitable and proper, and that the same remained of the same width, depth and dimensions, and was thus used and navigated by the company, until the time when the said enlargement was commenced, which it alleged the company had no legal right or authority to make.
    The defendants admitted their incorporation at the time, and for the purpose stated in the complaint, They denied that the dimensions of the canal were determined upon by them, and completed as alleged; but they admitted that it was so far constructed,as to admit water and the passage of boats to some-extent in 1828, and more fully in 1829, after which, as they alleged, alterations and improvements were made as occasion required, to adapt the canal to the wants of trade and the business of the community; and they insist that their charter gives them power to make alterations, improvements and enlargements of the canal from time to time, as the business, of the country may require. They deny that any part of the plaintiff’s land was taken in making the enlargement, or that his lands were injured; and they alleged that the depositing of earth and sand upon his lands, was done with his license and consent, and-was beneficial.and not injurious to such lands.
    The cause has been twice tried. On the first trial in May, 1855, the plaintiff was non-suited, or the complaint dismissed, on the ground that the enlargement was lawfully made, and that the only remedy of the plaintiff was under the ninth section of the defendants’ charter, by which provision was made for .the assessment of damages in such cases, on the application of either of the parties. The general term of the supreme court' granted a new trial holding that the remedy by action was open to the plain tiff, notwithstanding the provisions of the charter. (See 24 Barb. 362.)
    The cause was again tried in June, 1857, when the jury found a verdict for the defendants, and judgment was entered in accordance with the verdict; which was affirmed by the general term.
    After the trial, and before the hearing of the case at the general term, two successive motions were made on behalf of the plaintiff, at special terms, to set aside the verdict, and for a new trial, on the grounds of surprise;. that the verdict was against evidence; that the trial was irregular, one of the jurymen not háving been sworn, and on account; of the misconduct of one of the jurymen. The first motion was made on affidavits only, the second on affidavits and the case and exceptions as settled. Both motions were denied, and on appeal to the general term the orders were affirmed. The present appeal, in terms, embraces only the judgment of the general term, affirming the judgment rendered upon the verdict, no notice being taken in the notice of appeal of the orders of the general term, affirming the orders denying the motions made at the special term.

      A. Thompson, for the appellant.

      J. Hardenburgh, for the respondents.
   Selden, J.

The first question to be considered is, whether the orders denying the motions to set aside the verdict are here for review. Clearly they are not. It is not material that they are not mentioned in the notice of appeal. If they were, re viewable here under any circumstances, they would be'so on the appeal from the judgment. They are not, however, intermediate orders involving the merits, and necessarily affecting the judgment, within subdivision two of the eleventh section of the code of procedure, They are not intermediate orders in any cause, but entirely outside of the judgment.

They were not summary. applications after • judgment within the third subdivision of the same section. That pro vision only relates to orders which recognize the original regularity and validity of the judgments, and one based on facts and circumstances occurring subsequently. But if that were not so, these were motions addressed to the discretion of the court below, and for that reason cannot be reviewed here.

Several exceptions were taken on the trial, by the plaintiff’s counsel to evidence offered by the defendants to show that the plaintiff’s land was a swamp, and unfit for cultivation, before the canal was constructed. The bearing of that evidence was very remote upon the issues before the court, but I think the decisions admitting it were correct. Its effect was a question for the jury.

The defendants offered in evidence a certified copy of a bond to the plaintiff to pay the damages to • be assessed, &o., as provided in the twenty-second section of their charter, which had been filed with' the county clerk. This was objected to on the grounds: 1st. That the statute did not provide for filing a bond any where. 2d. That the bond was not delivered to the plaintiff; and 3d. That after the completion of the canal, the defendants could not take more land to enlarge it. The objection was over-ruled and the bond received. If the copy had been objected to on the ground that the statute made no provision that a certified copy might be read in evidence, I think it would have been well taken. I have entertained some doubt whether the bond should not be delivered to the obligee, to give it validity. There must unquestionably be a delivery of some kind, to make it effectual; but as the party has no option to accept it or not, that power being given to the clerk, and as the obligees may be infants, lunatics, or nonresidents, I am of opinion that the county clerk’s office is the proper depository, and that the clerk’s acceptance of the bond must, under the statute, be regarded as the acceptance of the party, though doubtless a delivery to the party would be good. The remaining ground of objection involves the principal question in .the cause, viz: whether the defendants had power, under their charter, to make the enlargement. I have examined the charter carefully, with a view to this question, and am satisfied the company did possess this power, and could, if necessary, appropriate lands for that purpose under the exercise of the power of super-eminent domain, conceded to them in the charter. The bond, therefore, was properly received.

At the close of the trial, the judge instructed the jury that if they were satisfied from the evidence that the work of enlargement was done by the consent or license of the plaintiff, their verdict should be for the defendants. “The plaintiff’s counsel excepted to so much of the charge as submitted the question to the jury, te find whe'ther or not the work of enlarging the canal through his. lands had been done by the plaintiff’s consent or license.”

This exception is sought to be sustained on the grounds: 1st. That the answer sets up a license to deposit earth upon the plaintiff’s land only, and not to enlarge the canal. 2d. That there was no evidence to prove a license to enlarge the canal. 3d. That a paroi license would not justify the enlargement; and if that were otherwise, would not justify the raising of the water and injuring the plaintiff’s land by the leakage of water through the banks.

If the pleadings did not authorize the introduction of proof of license, the objection should have been taken when the proof was offered; and if there was no proof tending to establish a license to enlarge the canal, the counsel should have pointed out that ground of objection to the charge. The exception, as taken, presents only the question whether a paroi license, if properly pleaded and proved, would constitute a defense to the action. If the defense required proof of such a right as would justify, not only the making of the enlargement, but the permanent maintenance of it, against the will of the plaintiff, clearly the charge could not be sustained. A permanent interest in land, even by way of easement, cannot be created by 01 under a paroi license. (Mumford v. Whitney, 15 Wend. 380; Foot v. New Haven & Northampton Co., 23 Conn. 214; Eggleston v. N Y. & H. H. R. Co., 35 Barb. 162; 1 Washb. on Real Prop. 400, §§ 10-11 and note.) It was not, however, necessary that the license should be valid to that extent, to render it available as a defense to this action. A paroi license is effectual to justify every thing which may be done under it prior to its revocation. (Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 61; Stevens v. Stevens, 11 Met. 251; 1 Washb. on Real Prop. 398, § 6.) There was no revocation in this case prior to the commencement of the present action, and the license to enlarge the canal, therefore, if proved, constituted a defense or justification for all which was done under it, although it gave no permanent right to maintain the enlarged work.

It is insisted, on the part of the plaintiff, that a license to enlarge the canal would not justify raising the level of the water and injuring the plaintiff’s land by the consequent leakage of water through the banks. A license to enlarge the canal would authorize an increase of the depth of' the channel as well as of the width, and such increase of depth might be produced by excavations from the bottom, or by raising the banks, or by both; and the license, so long as it remained in force, would not only relieve the licensee from liability for making the enlargement, but also from liability for any consequences which might naturally flow from such enlargement. (Stevens v. Stevens, 11 Met. 251; 1 Washb. on Real Prop. 398, § 6.) If the injury to the plaintiff’s land was owing to any want of Skill or care in making the enlargement, and was not the natural result of the work, if carefully done, the license would not constitute a defense. A license to do an act cannot be held to screen the licensee from the consequences ' of carelessness or unskillfulness in the performance of the act. This position, however, is not available to the plain tiff, as the attention of the court was not called to it, and no request was made to have that subject presented tó the jury; nor am I aware that there was any evidence tending to show either negligence or unskillfulness. The charge of the judge, therefore, so far as it was excepted to, was correct.

I have thus considered all the objections which have been urged against the judgment, and am satisfied that none of them furnish grounds for its reversal. If it were conceded that the defendants had not, under their charter, the right to appropriate private property for the enlargement of, their canal, there can be no doubt of their right to make the enlargement with the consent of the owners of property taken; and the verdict of the jury and the judge’s charge in this case having established such consent, whether the evidence did or did not justify such verdict, the defense Avould be complete on that ground. No doubt, however, is entertained by me, that the defendants had the right to appropriate, in the manner pointed out by the charter, private property for that purpose, without such consent. It was insisted by the defendants’ counsel that, admitting the lands to have been'appropriated by the defendants without the plaintiff’s consent, the only remedy allowed to the plaintiff to obtain indemnity was that pointed out by the defendant’ charter (Laws of 1823, p. 309), and that the present action, for that reason, could not bfe maintained. The case of Calking v. Baldwin (4 Wend. 667), which does not appear to have been noticed when this case was first before the general term of the supreme court, if the principle upon which it rests is sound, would go far to sustain that position. It does not become necessary, however, yo pass upon that question, as, upon the other grounds which have been mentioned, the judgment must be affirmed.

Johnson, J.

There can be no doubt that it was. correctly decided by the supreme court, when this cause was Oefore it on another case, that the defendants had the legal 'right to enlarge their canal as they have done. (24 Barb. 362; see, also, Bruce v. Same, 19 id. 371.) There is no pretense that the canal, as enlarged, is not suitable, in respect to width, depth and dimensions, to the business in which the defendants are engaged. By their charter, this company were authorized “to make, construct and forever naintain a canal, or slack-water navigation, of suitable width, depth and dimensions, to be determined by the corporation.” This necessarily includes the power to alter by widening and deepening, whenever in the judgment of the company the dimensions previously adopted should, by reason of the increase of business, become unsuitable. Whatever the defendants have doné, in the way of enlargement, has been done upon their own land, or upon lands on which the defendants had acquired the legal right to enter and use for that purpose, and fairly within the scope of the powers conferred by their charter. The canal, though not strictly a public work, is yet of the nature of one, as much as a railroad, and is to be regarded as a public work in the same sense. The acts, therefore, being authorized by express enactment of the legislature, and performed in good faith, upon a work of a public nature,, it remains to be seen whether the defendants are liable for mere conseqtlential damages resulting from» such acts, by reason of anything alleged in the complaint, or proved upon the trial.

It was fully settled by this court in a leading case, (Radcliff’s Ex’rs v. The Mayor, &c., of Brooklyn, 4 Comst. 195,) that the only grounds of liability in such a case were either bad faith or want of due care or skill in the execution of the work. ■ It was held that an act done under the authority of law, if done in a proper manner, will not subject the party doing it to an action for the consequences,, whatever they may be, if the law does not provide for compensation of injuries of that character. This doctrine was fully sanctioned and applied in a recent case in tlW court, which cannot be distinguished in principle from .this case, in respect to the grounds of liability. (Bellinger v. The New York Central Railroad, 23 N. Y. R. 42.) Upon this principle, as respects the alleged injuries to the plaintiff’s premises, occasioned by the water, no cause of action is stated in the complaint. It is alleged therein that b) raising and elevating the embankments of the canal, deepening and widening the trench thereof, and elevating the water therein, for the purpose of increasing the depth and volume of water, the defendants caused the water to soak through, fill, flood or "overflow the plaintiff’s land, and also to soak and flow through the earth into the cellar of a dwelling house upon said'premises, to his damage. There is no allegation of bad faith on the part of the defendants, or their agents, or of any negligence or want of skill in the construction or management of the work whatever. The damages, as appears from the complaint,'are mere consequential damages, naturally flowing from the construction and maintenance of . the work, by reason of the nature and character of the structure, and not by reason of any negligence or, unskilfulness in. the carrying on or in the completion of the work of enlargement, and the evidence upon the trial, in this respect, seems to be all of the same character. Indeed, that was all the evidence which could have been given under the complaint. Ho cause of action having been alleged or proved upon this branch of the case, it is wholly unnecessary to examine it further to see whether any of the rulings in the course of. the trial in reference to it were correct or otherwise.

The charge of the judge on this question was more favorable to the plaintiff than he was entitled to, and the jury 'have found that his lands had not been injured even from the cause alleged.

In regard to the other branch of the case, no question, that I can perceive, arises for review here, other than the exception taken to the judge’s charge to the jury. That exception was confined to a specific portion of the charge, namely: “ to so much of the charge as submitted the question'to„ the jury to find whether or not the work of enlarging the canal, through' his lands, had been done by the plaintiff’s consent or license.” There was no other exception taken, and no request to the judge to make any other or different charge. In addition to this, the judge charged that if the jury should find from the evidence, that the work of the enlargement was done by the consent or license of the plaintiff, their verdict should be for the defendant. •To this portion of the charge there was no exception. The exception was in general terms, to the previous portion of the charge, and only raises the question whether it was proper in any view, or for any purpose, to submit the question to the jury whether the plaintiff had consented to the work of the enlargement through his land. That it was proper, at least, in view of the plaintiff’s claim for damages caused by depositing the earth excavated on his land, does not admit of a question. If it had been done, in the form and manner in which it was done, at the plaintiff’s request, or by his consent and license, it was in no respect a wrongful act, and to that extent, at least, would affect the question of damages. By not excepting to the other portion of the charge, as to what the jury should do in case they found that the plaintiff had consented'to the work of the enlargement, the plaintiff’s counsel impliedly conceded that if it was proper to submit that question at all, the directions as to what verdict the jury should render, in case they found in the affirmative, were proper. .

The appeal to this court is from the judgment of the supreme court upon the case and exceptions, and does not bring up for review the order denying the plaintiff’s motion* to set aside the verdict, and for a new trial, founded upon affidavits. Those orders have not been appealed from, and form no part of the case and exceptions on which this appeal is founded. My conclusion is that there was no evidence upon the trial prejudicial to the rights of the plaintiff, and that the judgment should be affirmed.

All the judges concurring, except Weight and Hogeboom JJ.—who did not vote—judgment affirmed.


text:
    Abraham Martin, Jr., v. The Board of Supervisors of the County of Greene.
    After a claim against a county has been presented to the hoard of supervisors for allowance, and has been examined and passed upon by that body, the amount determined to he actually and justly due 'declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upon the ground that the decision of the board was erroneous in respect to the amount actually and legally due to the plaintiff.

      Appeal from a judgment in favor of the defendants, in the third judicial district

    In 1856, the board of supervisors of Greene County, at their annual meeting, appointed a committee to take charge of the court house and jail. The jailor and keeper of the court house were required to call on any one of the committee for anything that might be required for either place, which would be a proper charge against the county; and the supervisors resolved that no bill should be audited, unless ordered by said committee. The plaintiff, at the request of one of said committee, furnished goods and performed labor in and about said court house and jail, and charged therefor $69.50. He presented his bill for that amount to the board of supervisors, in 1857, to be audited by them. The board of supervisors audited said claim, and allowed the plaintiff therefor $60, and provided for the payment thereof by tax. The plaintiff thereupon commenced this action, to recover the full amount of his bill as presented, against the board of supervisors—setting forth in his complaint the facts substantially as above. The defendants, in their answer, admitted the appointment of the committee; the presenting of the bill by the plaintiff; the auditing of the same at $60, and no more; the raising of a tax to pay the same; and state and charge, among other things, that the board did proceed to transact business as such board, and while so assembled did examine, audit, settle and allow all proper claims presented to said board, including the one in question of the plaintiff. The plaintiff furnished a portion of said goods, for which he charged twenty dollars or over, without any prices agreed upon therefor. The prices of the residue were agreed upon between him and one of said committee. The action was tried at the Greene county circuit, in June, 1858, before Hon. Henry Hogeboom, without a jury, when the above facts, substantially, were proved. The court found ,.the facts to be that the demand set forth in the complaint, and established by the evidence, was a proper claim to be presented to the board of supervisors; that the same was so presented with the usual affidavit; and that the defendants audited the same at $60, which amount was provided for by tax in the usual way. The court decided, as matter of law, that such action of the board was final; and that this action could not be sustained. Judgment was ordered, and perfected in favor of the defendants, for costs.
    The plaintiff appealed to the general term of the supreme court, where the judgment was affirmed. Thereupon, the plaintiff appealed to this court.

      S. A. Givens, for the appellant.

      Olney & Mott, for the respondents.
   Johnson, J.

This action is in effect, though not in form, an appeal by the plaintiff from the. decision of the board of supervisors, acting in their judicial capacity, upon his claim against the county of Greene. His claim is conceded to have been against the county, and it was presented to the board for allowance, was examined and passed upon by that body, the amount determined to be actually and justly due declared, and its payment juovided for in the mode prescribed by law. It is alleged that the decision of the board was clearly erroneous in respect to the amount actually and legally due to the plaintiff, and it seems to be assumed that this error on the part of that tribunal affords a good foundation for the action in the supreme court upon the same claim.. This is a radical mistake. The erroneous decision of that tribunal, if it committed any error, furnishes no ground for an original action to recover the same claim, and certainly the law recognizes no such proceeding for the purpose of reviewing and correcting the errors in its decisions. On the contrary, as the law gives no appeal from the determinations -of the board of supervisors in auditing and allowing, or rejecting, claims properly submitted to be audited, it necessarily follows that their action in the matter is final and conclusive. The board of supervisors is the body to which the statute has committed the power “to examine, settle and allow all accounts chargeable to such county, and to direct the raising of such sums as may be necessary to defray the same.” It was held by chis court, in Brady v. The Supervisors of the City and County of New York (10 N. Y. R. 260), that it had exclusive jurisdiction in such matters, and that no action could ne maintained for the recovery of a county charge, either against the county or the board of supervisors. The decision is entirely conclusive of this case. It is claimed by che appellant’s counsel that the decision in that case is not controlling in this, because in that case the plaintiff had never submitted his claim to the supervisors to be examined, settled and allowed. But the fact that the demand in this case has been submitted to the appropriate tribunal, and has there been examined, settled and allowed, so far as it was deemed to be accurate and just, makes the case still stronger, if possible, against the plaintiff. The court, however, in that case, went the entire length of holding that no action could be maintained in a court of law for the recovery of any claim of this character. This has always been understood to be the law of this state. It is upon this ground that the writ of mandamus has been heretofore allowed, against boards of supervisors, in favor of claimants against a county, to set them in motion, and compel them to adjudicate upon claims. (The People v. Supervisors of Columbia, 10 Wend. 363; 2 Sand. S. C. 460.) The policy of not allowing every claimant against a county to vex and harass it with a law suit, but compel ing him, in lieu thereof, to submit his claim to the board of supervisors, to be examined and passed upon, and havt the amount allowed put into the tax upon the county, and collected in that way, is undoubtedly a wise and salutari one, which ought to be upheld and sustained rigorously by courts. Sometimes) doubtless; complete and exact ju? tice will not be done between claimants and the county But that is no mere than may be affirmed of every othet human tribunal,' for the trial and determination of disputed claims. It is enough, however, that the policy of the law forbids an action for the cause alleged against the county The judgment of the supreme court is, therefore, right and must be affirmed.

Selden, J., was for revetsah All the other judges being in favor of affirmance, judgment affirmed.