author:
Beadley, J.:
      CoRLETT, J. : Haight, J.

text:
    JOSEPH W. CATLIN, as Administrator, etc., of ALDICE P. WARREN, Deceased, Plaintiff, v. LYDIA A. MUNN, as Administratrix, etc., of JOHN H. MUNN, Deceased, Defendant.

      Contract for work — agreement to accept payment in certificates-of public officers —■ when the mlidity of the certificates is an implied condition of the contract.

    In 1873 tlie defendant's intestate, Munn, entered into a contract with three commissioners, appointed by the county judge of "Wayne county, to drain certain low lands, by which he agreed to dig and construct a ditch, of a certain size and length, and to receive in payment therefor certificates of indebtedness to be issued by the commissioners payable upon the completion of the work and the collection of the assessment. Thereafter, Munn entered into awritten contract with certain other persons by which they agreed to dig and construct a portion of the ditch, Munn agreeing to pay them therefor “the sum of one dollar and seventy-five cents per rod for said ditch constructed or dug as above specified, one-half to be paid in cash on completion of each section of fifty rods, the remaining half to be paid in certificates of indebtedness on completion of the entire job above specified.”
    The parties to the second contract having fully performed the same on their part, received from Munn the cash payment and the certificates of indebtedness issued by the commissioners, both parties believing the said certificates to be valid instruments. The certificates were not paid, nor could the assessment be collected by reason of the fact that the proceedings were void because of the absence of any determination having been made that the contemplated ditch was for the benefit of the public health. .
    In this action brought by the plaintiff, to whom the parties contracting with Munn had assigned their certificates, together with their claims for services rendered under the contract, against the administrators of Munn to recover the amount unpaid upon their contract:

      Held, that as the contract contemplated a payment in valid certificates lawfully issued and collectible, and as those delivered were invalid, the plaintiff was entitled to recover. (Haight, J., dissenting.)
    That the fact that the commissioners might he personally liable for the issue of the illegal certificates furnished no defense to the defendant.
    MotioN by the plaintiff for a new trial on exceptions taken at Wayne Circuit, and ordered to be heard at the General Term in the first instance.

      J. FT. Gamp, for the plaintiff.

      I. M. Norton, for the defendant.
   Beadley, J.:

The proceedings for drainage were sought to be instituted and conducted under the statute (2 ft. S., 548, as amended by Laws of 1869, chap. 888; Laws of 1871, chap. 303), but it was not alleged in the petition, nor does it appear that it was determined that the contemplated drains, ditches or channels were for the benefit of the public health, and for want of such determination the proceeding was without jurisdiction and void. (Burk v. Ayers, 19 Hun, 17; Matter of Ryers, 72 N. Y., 1.) The defendant’s intestate having taken from the commissioners appointed the contract for construction of the drain or a portion of it, employed the assignors of the plaintiff’s intestate to construct a section of it at the price of one dollar and seventy-five cents per rod, and to pay them one-half in cash and the residue in certificates of indebtedness, which they agreed to accept.

They entered upon the performance of the work and did it, and the defendant’s intestate paid them one-half in money, and procured ■ from the commissioners named in the proceeding and delivered to them as payment of the other half, and they received, what purported to be certificates that such amount was due, and with interest to be paid on the completion of the collection of the assessments, etc.

This action is brought to recover for the services performed by the assignors of the plaintiff’s intestate under such employment, and is founded on the alleged fact that the proceedings in which the commissioners were appointed was void and the certificates made by them and delivered as before mentioned, were invalid. Assuming, as we do for the purposes of this review, that the proceedings were void for want of jurisdiction, the question arises whether the delivery by the defendant’s intestate of the certificates of the •commissioners was such performance by him of his agreement as to relieve him from liability. The trial court held it was, and directed a verdict for the defendant. It is evident that the parties to the agreement of employment had in view certificates of indebtedness to be issued by the commissioners so appointed in the proceedings, and by whom they were in fact issued; and it may be assumed ■that when those certificates were taken by defendant’s intestate and delivered to those persons by him so employed, in payment for ■the one-half of their services, he and they believed them valid, and they received them as such, and then treated them as payment. So that'the sole question for consideration is: were they certificates ■of indebtedness within the meaning of the agreement for employment and payment for services ? If they were, the matter of their value has no importance, the delivery of them would .be treated as performance on the part of the employer and as satisfaction for the services. (Bates v. Cherry V., S. and A. R. R. Co., 3 T. & C., 16; affirmed 59 N. Y., 641; Reed v. Bartlett, 19 Pick., 273.) And the rule applicable to the taking and acceptance of choses in •action in payment of a precedent debt does not govern. In that •case the creditor has an existing liability of his debtor and is entitled to payment. And the delivery and acceptanee of the note or obligation of another in satisfaction of the debt may not operate as a discharge of it, if it turn out that the third party was then insolvent, and his note or obligation had been delivered and accepted in ignorance of that fact and by mutual mistake of understanding in that respect. And that is put upon the broad principles of justice “ that a man should not be allowed to pay a debt with worthless paper, though both parties supposed it to be good.” (Roberts v. Fisher, 43 N. Y., 159; S. C., 53 Barb., 69.) This proposition is founded upon the right of rescission of the agreement pursuant to which the delivery of the worthless paper is made, taken and accepted in satisfaction of the debt. (Baldwin v. Van Deusen, 37 N. Y., 487.) The same rule is applicable to a debt upon which have, under like circnmstrnces, been paid and received the bills of an insolvent bank. (Lightbody v. Ontario Bank, 11 Wend., 9; S. C., 13 id., 101; 27 Am. Dec., 179; Wainwright v. Webster, 11 Verm., 576; 34 Am. Dec., 707; contra, Bayard v. Skunk, 1 Watts & Sergt., 92; 37 Am. Dec., 441.) But it is somewhat different when, by the cod tract out of which the liability to pay arises, the manner of payment is designated and agreed upon. Then the fact that the third person whose paper, by the arrangement, is to be delivered and accepted has, at the time for payment, become insolvent, may not defeat the right to tender and pay it in performance and satisfaction, and likewise the party having-received it in payment may not have any remedy based upon the mere fact of such insolvency, although unknown to either at the time of its receipt. In such case the undertaking of the person agreeing to pay in the note or obligation of another is only that it shall be his genuine paper. (Whitbeck v. Van Ness, 11 Johns., 409; Gibson v. Tobey, 46 N. Y., 637; S. C., 53 Barb., 191; Hardin v. Kretsinger, 17 Johns., 293.)

This rule, however, may not be so applied as to require performance of an executory agreement by the party who has agreed to' accept in payment the note of a third person, when before such performance it turns out that the maker of the note has become insolvent. The consideration in such case may be deemed to have-failed, and upon that ground performance and acceptance of such paper maybe refused. (Roget v. Merritt, 2 Caines’ Rep., 117; Benedict v. Field, 16 N. Y., 595.)

In the case at bar there was a performance of the services, and by the agreement to pay in the certificates of indebtedness there-was an accord to that extent, with the right to make satisfaction by the delivery of them. Those delivered, it may be assumed, had the-form and appearance of the instruments which the employer had agreed to deliver, and they were accepted as well as delivered upon the faith that they were in fact those provided for by the contract, and within the contemplation of the parties when they made it. The difficulty is that they were not certificates of indebtedness, because they were issued without authority. They were not in the-legal sense genuine instruments. It was not necessary that they should be forgeries to deny to them the quality of legitimate certificates of indebtedness. To make them such required the power to issue them. It was understood that they should come from representative or official action of individuals clothed with the requisite authority. A promise to deliver the note of A., executed by 33. as his attorney, would not be performed by delivery of a note purporting to have been executed in the name of A. by B., without any authority of the latter to execute it as such. It would not be the note of A. within the meaning of the promise. And here the agreement to deliver and accept in satisfaction certificates of indebtedness embraced the understanding that to be such they should be genuine — that they should be what their terms purported, in so far as related to the power exercised in the issuing of them. In Shearer v. Fowler (7 Mass., 31), it was held that the consideration paid for a deed executed without authority might be recovered back. In that case that which purported to be a deed was not such, because of want of power to execute it. And there is the distinction between that case and Reed v. Bartlett (supra). In the latter the deed conveyed nothing, yet the party paying for it was not permitted to recover the consideration paid.

It seems quite clear that if there was no authority to issue the instruments in question they were not certificates of indebtedness within the meaning of the agreement referred to. The defendant’s intestate agreed to pay the men who did this work a specified price. They are entitled to recover, except so far as it shall appear they have been paid. It is said by the defendant’s counsel that if the persons acting as commissioners had no authority to issue the certificates, there may be a remedy against them personally, to which the holders of them may resort.

Whether there is any and what liability of those persons is not a question arising here. The parties whose services were performed did not contract for the personal liability of those persons, and the certificates made purport to create none. If they are liable at all it is probably for damages upon a state of facts not necessarily appearing in this action, rather than on any agreement on their part to pay. (Olmsted v. Dennis, 77 N. Y., 378.) But we do not express apy opinion on that question.

The conclusion seems to follow that a new trial should be granted, costs to abide event.

BARKER, «I., concurred.

CoRLETT, J. :

On tbe 9th day of June, 1873, a petition was made, of which the following is a copy:

“ To the Honorable L. M. Norton-, Wayne Oounty Judge:
“We, the undersigned petitioners, would respectfully show your honor that we are owners and occupants of some low, wet swamp bog and meadow lands, situate in the north part of the town of Lyons, county of Wayne, New York, and that we are desirous of draining the'same under the Revised Statutes, as amended. Your petitioners would further show that the following persons would be affected by the ditch or channel for the free passage of water: Silas Potter, Clark Reynolds, Conrad Youngs, George Still, Peleg Randall, Timothy W. Brown, Oliver Penoyar, George Hopper, Otis Watson, Mrs. John Munn, Riley and John A. Merchant, William Armitage, Alvin June, Daniel Jennison and Levi Whitlock. Your petitioners respectfully ask your honor to appoint a commission to hear and determine the matter as above mentioned, for which we will ever pray.
“ We, the undersigned, have read the foregoing petition and ask yóur honor to grant the same.
“Dated LyoNS, June 9, 1873.
“ GEORGE STILL. RILEY & JOHN A. MERCHANT.
“PELEG RANDALL. WILLIAM ARMITAGE.
“ OLIYER PENOYAR. SILAS POTTER.”

It was verified on the twelfth day of June of the same year.

On this petition the county judge or court made an order appointing George W. Dennis, Sidney G. Cook and Clark S. Edwards commissioners. Afterwards the commissioners made a verbal contract with ;John H. Munn to dig a ditch, which was to the effect that Munn should be paid with the certificates of indebtedness on the ditch, payable upon the completion and the collecting of the assessment. He was to receive two dollars and fifty cents per rod for digging the ditch. Afterwards and on the 26 th day of August, 1874, Munn made a contract in writing with W. Facer, 9- Travell, George Bridges, L. Dudley and Joseph Bridges. Munn was designated as party of the first part in the agreement. ■ It provided, among other things, as follows : “ The party of the first part agrees to pay to parties of second part the sum of one dollar and seventy-five cents per rod for said ditch constructed or dug as above specified, one-half to be paid in cash on completion of each section of fifty rods, the remaining half to be paid in certificates of indebtedness on completion of the entire job above specified.”

The parties to the agreement above named completed their work, as provided by the contract, in the fall of 1874, after which Munn paid them one-half in cash and the balance in so-called certificates of which the following is a copy:

“WAYNE COUNTY COUNT.
“ In THE MATTER OH THE APPLICATION OP GEONGE STILL ET AL.
“ For draining low, wet,-swamp, bog and meadow lands in the town of Lyons and Galen, under the Nevised Statutes as amended.
“Whereas, upon the petition of George Still ei al., his honor M. Norton did issue, on the 13th day of June, 1873, a commission appointing George W. Dennis, Sidney G. Cooke and Clark S. Edwards commissioners in said matter; and
“ Whereas, said commissioners, on the-day of-, 1874, did file in "Wayne county clerk’s ofiice a determination to drain said lands, and in pursuance thereof did contract with J. EL Munn for the construction and digging of a part of said ditch.
“Now, therefore, we, the said commissioners, hereby certify there is due to J. H. Munn, or order, the sum of-and - dollars, with interest, to be paid on the completion of the collection of assessments in said matter.
“Given under our hands this 31st day of October, 1874.
“O. S. EDWANDS,
“ SIDNEY G. COOKE,
“ GEONGE W. DENNIS,
Commissioners of Drainage?

Munn indorsed .and delivered to each person signing the contract (after the cash payment) a certificate for the amount, his due, in the above form. Each one accepted the same upon the assumption and belief that it was a certificate of indebtedness contemplated by the contract, and it was indorsed and delivered by Munn on the same assumption and belief. The holders of the certificates delivered them to the plaintiff’s intestate in payment for goods. Afterwards each of those persons assigned to the plaintiff’s intestate his claim for work and labor on the ditch.

The contention on the part of the plaintiff is that the persons appointed were never authorized to issue the certificates, because neither the commissioners nor County Court determined that the proposed drainage was necessary for the public health. That this being so, the instruments issued by them were not certificates of indebtedness, but were nullities. In other words, that the instruments purporting to be certificates of indebtedness, were never made or issued by persons authorized to do so. It seems to be assumed that the commissioners had no power to act in that capacity in making and issuing certificates.

The question was so decided in Burk v. Ayers (19 Hun, 17, Fourth Dept., Oct., 1879). The defendants claim is that by the terms of the contract one-half was to be paid in certificates; that payment was made and that ¿o recovery can be had even though the certificates were nullities. The agreement provides that one-half shall be paid in certificates of indebtedness. If these instruments were not certificates within the meaning or contemplation of the contract, then no payment was made. It is true that the instruments delivered purport to be such certificates. It is equally true that they were not such certificates, because the commissioners had no power to issue them.

It is a familiar rule that upon the sale of a written obligation there is an implied warranty by the vendor of the genuineness of the instrument. (Bell v. Dagg, 60 N. Y., 528.) The duty, therefore, devolved upon Munn, both by the expressed terms of his contract and upon the theory of an implied warranty, to deliver genuine certificates. The ones delivered were not genuine cei’tificates. The persons signing them had no power, in the capacity in which they assumed to act, to make them.

It is, therefore, like the case of a forged note or bill, and must be governed by the same principles. (Frank et al. v. Lanier et al., 91 N. Y., 112.) The fact that the commissioners believed they had power and that they acted in good faith is immaterial; their honesty of purpose imparted no legal inception to the instruments any more than if they were forged. (Gibson v. Tobey et al., 46 N. Y., 635, and the like cases are distinguishable in that.) In all those cases the note was genuine • it had legal moepUon, and was made by the person purporting to make it. A different rule therefore •applies then, where there is no maker, or where the instrument never had legal inception. These papers did not purport on their face to be the individual obligation of the persons signing them, but rather the acts of those individuals in an official capacity.

The persons receiving them assumed, and had a right to assume, that they were made by the persons signing them in their official capacity ; that they had a right to make the instruments in that capacity •, that they were valid instruments the payments of which could be inforced out of the property drained. Each instrument contains the following: To be paid on the completion of the collection of assessments in said matter.” Thus showing that each purported on its face to be payable out of moneys to be collected from those benefited by the drain. The persons to be benefited could be assessed only for drains lawfully constructed and which could be perpetually maintained. (People ex rel. Williams et al. v. Haines et al. 49 N. Y., 587.) It may be that the commissioners are personally liable to the defendant for the value of digging the ditch. (Olmsted v. Dennis et al., 77 N. Y., 378; Mitchell v. Strough et al., 21 Weekly Dig., 225.) But' that - liability would rest upon the negligence of the commissioners in assuming to issue, in an official capacity, certificates which were nullities for want of power to issue them. But such liability is no answer to this action.

This was brought to recover the value of services performed for Munn. The answer is payment. The contention involves the simple question, .whether these instruments when indorsed and delivered operated as full payment. If the plaintiff succeeds it may be that the defendant can obtain redress from the commissioners. But this plaintiff cannot b§ turned out of court in case the debt has not been paid, simply because the commissioners may be liable to the defendant. Besides, the trial justice did not place the direction of a verdict on any such ground. He was requested to direct a verdict for the plaintiff. Also to submit to the jury whether Munn ever paid the five persons named in the contract for the labor they performed. Also, whether he delivered to those five persons such certificates of indebtedness as was contemplated by tbe contract. Each request was denied and an exception taken. A verdict then was directed in favor of the defendant. The ruling at the circuit amounted to a determination, as matter of law, that the certificates amounted to an absolute payment of the balance-due for labor.

A new trial must be granted, with costs to abide the event.

Haight, J.

(dissenting):

On the 13th day of June, 1873, George Still and others presented a petition to the county judge of Wayne county praying for the appointment of commissioners to drain certain low, wet, swamp and bog lands situated in the town of Lyons, in that county. The County Court thereupon appointed George W. Dennis, Sidney T. Cook and Clark S. Edwards drainage commissioners. Thereafter and on the 17th day of June, 1873, the commissioners made and filed their determination, in which they determined to drain the lands described in the petition. Subsequently the commissioners entered into a contract with John H. Munn, the defendant’s intestate, to dig and construct the proposed ditch, and agreed to pay him therefor a stipulated price in their .certificates of indebtedness. Thereupon Munn entered into a written agreement with W. Facer, H. Travell, George Bridges, L. Dudley and Joseph Bridges to dig and construct a part of the ditch and agreed to pay them therefor the sum of one dollar and seventy-five cents per rod, one-half to be paid in cash on the completion of each section of fifty rods, the remaining one-half to be paid in certificates of indebtedness on the completion of the entire job. Pacer, Travell and others thereupon entered upon the performance of their contract and dug as much of the ditch as they agreed to dig, and Munn in the performance of his contract paid them therefor one-half in cash and the other half in the certificates of indebtedness, issued to him by the drainage commissioners.

It appears from the undisputed evidence in the case that the certificates of indebtedness mentioned in the contract were certificates which were to be issued by the commissioners of drainage-The certificates of indebtedness so issued and delivered to Facer, Travell and others were by them transferred to the plaintifPs intestate. Subsequently Facer, Travell and others executed and delivered to plaintiffs intestate an assignment of an account for work, labor and services done and performed by tbem for Munn. The account so assigned by tbem respectively was for the same work, in the digging of the ditch, for which the certificates of indebtedness had been issued and delivered to them.

The commissioners have never made their assessment or collected any taxes thereon and the certificates have not been paid. It was-conceded on the trial that at the time of the transaction both parties supposed that the certificates were good for the money.

This action is brought upon these assignments of accounts, and the plaintiff claims the right to recover the amount thereof of the defendant. It was contended by the plaintiff on the argument that the certificates of indebtedness issued by the drainage commissioners .were void and worthless, for the reason that they had neglected to determine whether or not the ditch was necessary for the preservation of public health. It is possible that the proceedings are defective in this regard. (In the Matter of the Application of David R. Ryers et al., for the Appointment of Commissioners, etc., 72 N. Y., 1; Burk v. Ayers et al., 19 Hun, 17.) But this question I do not consider it necessary to determine. If we concede what the plaintiff claims in this regard, still I am unable to see how he can recover in this action. Munn was the first contractor and received his pay in these certificates. The written agreement, entered into by him with Facer, Travell and others, was to the effect that they should do certain work in the digging of the ditch; that they should receive therefor a sum agreed upon, one-half of which should be paid them in cash, and the other one-half in these certificates. This agreement was strictly and fully performed on the part of Munn. The certificates were accepted by Facer, Travell and the other assignors of the claims in suit, in payment for the work performed by them under the contract. It is true that at that time all of the parties supposed that the certificates were good and valid, and that the money called for by them would be paid. The plaintiff’s assignors, however, in entering into the agreement and in accepting the certificates, took their own chances in reference to their validity or payment.

The commissioners had been duly and legally appointed. They had taken the oath of office and entered upon the discharge of their duties. They were authorized by the statute to issue certificates of indebtedness to }iay their expenses in digging the ditch. The only defect is that the commissioners had not filed their determination that the drain was necessary to preserve the public health. The certificates were therefore the papers of third persons. They were not issued in payment of a precedent debt, but under the contract they were received as a part of the consideration, in accordance with its terms, for the services performed. In such a case they amount to a payment and satisfaction. The law in this regard appears to be well settled. In the case of Gibson v. Tobey (46 N. Y., 637) the rule was stated by CnuRcn, Ch. J., as follows: “ If a vendor of goods receives from the purchaser the note or bill of a third person, such note or bill will be deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly-proved ; and in such a case the onus is upon the person receiving the paper; but when such note or bill is received upon a precedent debt the presumption is that it was not taken in payment, and the onus of establishing that it was so received is upon the debtor.” (To the same effect is Gibson v. Tobey, 53 Barb., 191; Bates v. Cherry V., S. and A. R. Co., 3 Thompson & Cook, 16 ; same affirmed on the opinion of the General Term, 59 N. Y., 641; Noel v. Murray, 13 id., 167; Keeler v. Salisbury, 33 id, 648-653.)

The case of Roberts v. Fisher (43 N. Y., 159) is clearly distinguishable. In that case the note of Homer, Rice & Co. was delivered in payinent and discharge of a precedent debt. Homer, Rice & Co. had failed before the note was delivered, so that at the time of its delivery it was worthless. The court in that case held that it was not a payment of the debt. This decision we do not regard as in conflict'with the decision in the case of Gibson v. Toby, but directly within the rule as therein stated in reference to a precedent debt.

Again, it is contended on the part of the defendant that these certificates are valid and that payment of them can be enforced under the conceded facts in the case; that if the commissioners have been guilty of negligence in the discharge of their duties they are personally liable. (Olmsted v. Dennis, 77 N. Y., 378.) Under the view I have taken of the case it does not become necessary to consider this question.

I regard these certificates as a part of the case and properly .admitted in evidence. It perhaps was not material as to the manner in which the commissioners paid Munn for the digging of the ditch, bnt as part of the history of the case and as showing his relation to ihe parties, I fail to see how it did harm. The refusal of the court to permit the assignors to testify that they would not have taken the certificates unless they supposed they were good, if error was cured by the admission of the parties subsequently made, that each party received his certificates supposing it was good for the money.

I think that the motion for a new trial should be denied.

New trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    DAVID D. BECKER and FRANK E. CAMPBELL, Appellants, v. JONATHAN R. JONES, Respondent.

      Mutual account — when it exists so as to take a case out of the statute of limitations.

    Upon the trial oí this action, brought in a Justice’s Court, to recover twenty-seven dollars and sixty-three cents, for goods sold and delivered to the defendant, it appeared that all the goods, except one item, costing one dollar, had been delivered more than six years prior to the commencement of this action. It also appeared that more than six years prior thereto the defendant had charged the plaintiff with one dollar and eighty cents for feed, and withiri that period with two dollars for use of a wagon, and seventy-five cents for repairs thereto.

      Meld, that the evidence was sufficient to authorize the jury to find that a mutual account existed between the parties, and that the court erred in refusing to submit.that question to them.
    Appeal from a judgment in favor of the defendant, entered on a verdict rendered at the Wayne Circuit, and from an order denying a motion for a new trial.
    The trial was had on an appeal from a Justices’ Court to the County Court, and the case was removed into this court. The action was brought to recover for goods sold and delivered. The defendant denied the complaint, plead the statute of limitations? and alleged that the plaintiffs were indebted to him for flour and feed, etc.
    On the trial the plaintiffs proved an aecount against the defendant for goods sold, amounting to twenty-seven dollars and sixty-three cents, all of which were delivered from time to time more than six years before the action was commenced, except one item of one dollar which was delivered within that time. There was evidence tending to prove that the defendant sold to the plaintiff feed amounting to one dollar and eighty cents, more than six years before suit, and within that time charged dhe plaintiffs for use of wagon two dollars, and for the cost of repairs of wagon broken by plaintiffs, seventy -five cents. The court directed a verdict for the plaintiffs for one dollar, and they appeal.

      J. B. Decker, for the appellants.

      Wm. Roe, for the respondent.
   Bradley, J.:

The only question presented is' whether the statute of limitations defeated the recovery by the plaintiffs of all that part of their account which accrued' more than six years before the commencement of the action. The trial court held that it did. And the defendant’s counsel contends that the statute is a bar, because: 1. The action is not brought to recover a balance due upon a mutual, open and current account. 2. The plaintiff gave the defendant no credits. 3. No mutual, open and current account appears between the parties. The statute provides that, in an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.” (Code .Civil Pro., § 386.) Such was that of the old Code (§ 95), and prior to that the rule was substantially the same. (2 R. S., 296, § 23.) As between the parties to such account the balance is deemed carried along and changed, or fluctuated, by the items of claim from time to time going into or properly belonging to it. And to save the entire account from the statute of limitations it is requisite that the account be mutual and open, and that one or more items accriie within six years before tbe commencement of the action. And it is not important in that case which side has such accumulation. (Green v. Disbrow, 79 N. Y., 2; Kimball v. Brown, 7 Wend., 322; Chamberlin v. Cuyler, 9 id., 126; Sickles v. Mather, 20 id., 72; Helms v. Otis, 5 Lans., 137.) The mutuality of the account of reciprocal demands must be established to bring the account within the statute. That of one side only will not answer the purpose; nor will reciprocal demands which are not the proper subject of an unliquidated account. (Perrine v. Hotchkiss, 2 T. & C., 370; Edmondstone v. Thomson, 15 Wend., 554; Coster v. Murray, 5 Johns. Ch., 522; Hallock v. Losee, 1 Sandf., 220; Click v. Quackenbush, 13 Hun, 107; Green v. Ames, 14 N. Y., 225; Huebner v. Roosevelt, 6 Daly, 337.) The plaintiffs’ account was clearly proved and the evidence tended to prove that the defendant charged to the plaintiffs, August 28,1873,100 pounds of feed at one dollar and eighty cents, and in 1880 and 1881, for use of wagon four days, two dollars, and costs of repairs of it seventy-five cents. This proof was made by the plaintiffs, and was sufficient as against the defendant to authorize the jury to find that ■those items of claim existed in his behalf against the plaintiffs, as part of a mutual account between the parties. It does not appear that the plaintiffs had given, in their account, the defendant credit for those items or any of them. That fact is not necessarily important; nor is the fact that the complaint was not in form for a balance of an account. The plaintiffs could properly allege their claim upon their side of the account as for goods sold, etc., and if the defendant failed to allege or prove his claims the plaintiffs could protect theirs against the bar of the statute by proving one or more items of the account existing on the part of the defendant. And the action will be deemed brought for the balance within the meaning of the statute. (Pennimam, v. Rotch, 3 Met., 216; James v. Clapp, 116 Mass., 358; Green v. Disbrow, 79 N. Y., 9.) It may be observed that the provisions of the Massachusetts Statutes (Rev. Stat., chap. 120, § 5), is substantially the same as that of this State in the respect in question. The plaintiffs’ exceptions to the refusal of the court to submit the question of mutual accounts to the jury, and to the direction of the verdict seem to have been well taken.

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

Smith, P. J., BARKER and Haight, J J., concurred.

Judgment and order reversed and new trial granted, with costs to-abide event.


author: Bbadley, J.:

text:
    LENA BEIR, Respondent, v. CYRUS T. COOKE, Appellant.

      Nuisance — when the smoJce, soot, etc., from a planing mill constitute a nuisance — in an action by an adjoining owner for an injunction all dmiages ■sustained' prior to the trial are recoverable.

    Tlie plaintiff, tlie lessee for a term of three years of a dwelling-house, brought this action to restrain the defendant from so conducting the business of manufacturing sashes, blinds and boxes in the adjoining premises as to allow the-steam, smoke, soot, cinders and partly burned shavings issuing therefrom to come upon and into the plaintiff’s premises to her annoyance and damage. It appeared that the plaintiff’s house was at times enveloped in smoke, and that dust and soot proceeding from the defendant’s works were deposited on the windows and in the rooms of the plaintiff’s house, and upon clothing when hung in the yard to dry.

      Held, that the plaintiff was entitled to the injunction demanded in the complaint.
    That as the injury was to the use of the entire premises for the purposes of a dwelling-house, the plaintiff’s damages were to be determined by the difference-between the rental value of the house free from and subject to the nuisance.
    That she was entitled to recover in this action all the damages sustained up to the time of the trial thereof.
    Appeal by tlie defendant from a judgment, entered on the report of a referee.
    The action was brought June 27, 1882, by Morris E. Solomon and Lena Beir to restrain the continuance of an alleged nuisance. Tlie plaintiff Solomon was the owner of the premises situate in the ciiy of Rochester and occupied by the plaintiff Beir, his tenant, as a dwelling-house under a lease for the term of three years from the 1st day of April, 1880, at the annual rent of $700. The premises are situate on South Chatham street. About the 1st of September, 1881, the defendant put into operation upon his premises, south of, and adjoining -those first mentioned, an establishment with machinery for sawing, planing and turning material for, and the manufacture of sash, blinds and boxes, and operated and propelled it by steam, generated by an engine on the premises.
    The alleged cause of the complaint is that this use by the defendant of his premises and its operation, produced much noise and vibration and shook the premises occupied by the plaintiff Beir, and caused to be emitted smoke, vapor, cinders and soot, which came over and upon the premises occupied by her, into the house, and interfered with and substantially impaired the comfortable enjoyment of the house and premises, and occasioned damage. The complaint was dismissed as to the plaintiff Solomon without costs, and judgment was directed for the plaintiff Beir, restraining the defendant from allowing steam, smoke, soot, cinders and partly burned shavings from issuing from his manufactory so as to occasion a nuisance or annoyance to her, and for $100 damages, with costs. From the judgment entered the defendant appeals.

      Henry W. Gonldin, for the appellant.

      John H. Fanni/ng, for the respondent.
   Bbadley, J.:

. The evidence failed to establish an injury to the reversion, and the complaint was properly dismissed as to the plaintiff Solomon. (Simpson v. Savage, 1 C. B. [N. S.], 347.) The facts found by the referee, upon which his conclusion was founded that the defendant be enjoined from continuing the nuisance, to the prejudice of the plaintiff Beir, were well supported by the evidence, and justified the relief given by the judgment in that respect. The defendant’s premises for some time prior to the fall of 1881, had been occupied by a school building, and the plaintiff’s premises and occupants had not been subjected to any annoyance which could be deemed a nuisance.

But evidence tends to prove and the referee has found, substanti-a.ly, that since the defendant commenced operating this manufactory, the smoke, cinders, soot, etc., from the chimney of it, have been cast upon the adjacent premises occupied by the plaintiff, to such an extent as not only to render the enjoyment of life and property there uncomfortable, but so as to damnify the beneficial use by the plaintiff of the.premises for the ordinary purposes of the house and curtilage. While it is true that persons living in a city must suffer the consequences which come from the bustle and noise incident to the activity of business and the manner which it may be done, and from the various causes which are produced by a dense population against which there is no legal ground for complaint, they are entitled to protection against the carrying on of a trade or business in a manner which materially injures their property or affects their health, or renders the enjoyment of it physically uncomfortable. (Crump v. Lambert, L. R., 3 Equity Cases, 409; Catlin v. Valentine., 9 Paige, 575; Brady v. Weeks, 3 Barb., 157.)

The right of one to use his own is somewhat qualified, and necessarily so for the benefit of society. He is required to use it in such manner as not to injure that of another. In other words, he may not use his property so as to invade the legal rights of his neighbor. It is not every injury that results to the property of one or more persons by the manner in which another uses his property that affords a remedy. Its market value may be greatly impaired by the style or character of the structure which may be erected by the owner on his premises, or by the business carried on there, and yet not constitute a nuisance or afford any remedy, because it violates no legal right of the persons so injured. (Pickard v. Collins, 23 Barb., 444, 458.)

The owner or occupant of premises has no exclusive property in the air, but he has the right to have that over them free and uncorrupted by foreign substances, gases, vapors, smoke, cinders, etc., which tend to a material injury to property, health, or physical comfort. And when that condition is produced and continued by the manner that another uses and operates his property, it may be treated as a nuisance and a legal remedy will be afforded. (Bamford v. Turnley, 3 Best & Smith, 62; Tipping v. St. Helen's S. Co., 4 id., 608; Flight v. Thomas, 10 Adol. & E., 590; Broadbent v. The Imperial G. Co., 7 De G., M. & G., 436; affirmed, 7 H. L. Cases, 600; Campbell v. Seaman, 63 N. Y., 568; S. C., 20 Am. R., 567.)

This case fairly comes within the rule which entitled the plaintiff to relief. The evidence tends to prove that the house he occupied was at times enveloped in dense smoke from the defendant’s works, that soot and dust from there were deposited on the win■dows and in tbe rooms of the bouse, when open, and upon washed ■clothing and things when hung in the yard to dry. And that other and like annoyances came from cinders, burned shavings, etc. The legal propositions applicable to such cases and the fundamental principles upon which they rest have so long and so well been settled, that it is unnecessary to state them any more fully or support them by further reference to authority.

The evidence tends to prove that the plaintiff actually sustained ■some damages. And the referee gave her $100. The defendant’s counsel contends that there was error in the reception of evidence •on that question. The plaintiff gave evidence of the effect of the condition produced by the causes of complaint upon the market value .and the rental value of the premises, by proving those values with and without that condition. And to the reception of the evidence ■defendant’s counsel took objection and exceptions. That in respect ■to the market value had no importance, except as it was descriptive of the effect of the situation on the property. And it became wholly unimportant when the plaintiff Solomon left the case, and it practically went out with him. The referee disposed of that question when he dismissed the complaint as to him. The plaintiff was interested in the rental value, and that only. She had the property for a term, and her interest was in its use. And her damages were the depreciation of the value of that use. Without this disturbance the evidence on the part of the plaintiff tended to prove the annual rental value $700, and with it $300 to $350. The trial was commenced in March, 1882, and concluded some months later, and ■evidence was given as to the condition and effect of the operation •of the defendant’s mill, as related to the plaintiff’s premises, up to a time later than the commencement of the action. It cannot be said that the evidence did not permit the referee to assess the damages sustained by the plaintiff prior to the commencement of the action at the amount he allowed the plaintiff. And, in such a case as this, we do not understand that the damages assessed are to be those only which accrued prior to the commencement of the action, but think they may include those sustained up to the time of the trial. (Vandevoort v. Gould, 36 N. Y., 639, 646.) The rule might be otherwise in an action at law for damages only. The plaintiff was entitled to recover her actual damages sustained by reason of the causes for which the defendant was liable. And as the injury here went to the use of the entire premises for the purposes of a dwelling place, the damages were the amount of the reduction in value of such use thus occasioned. The rule would have been otherwise if the injury had been specific and partial only, in its effect upon the use.

The evidence of the rental value was not, we think, incompetent. At all events, the general objection taken did not raise the question of the incoinpetency of opinions, as such, of the witnesses. To-raise that question required that a specific ground of the objection to that effect be stated. (Walker v. Erie Railway Company, 63 Barb., 261; Fountain v. Pettee, 38 N. Y., 184; In re Crosby v. Day, 81 id., 242; Ward v. Kilpatrick, 85 id., 414, 417.) The evidence was sufficient to permit the referee to assess the damages as he did. The facts arising out of the conflict of testimony are deemed settled by the findings of the referee. The exceptions have been carefully examiued and none of them seem to be well taken.

The judgment should be affirmed, with costs.

Sjuth, P. J.; BARKER and Haight, J J., concurred.

Judgment affirmed, with costs.


author: Beadley, J.:

text:
    ALONZO HORTON, Overseer of the Poor of the Town of Hanover, Respondent, v. ADNA P. PARSONS, Appellant.

      Excise laws — how actions for violations of, a/re to he brought by the overseer of the poor —1873, chap. 820 —1878, chap. 109 — an action maybe maintained by an overseer, though his oath of office be defective.

    Actions brought by overseers of the poor under chapter 820 of J873, and chapter 109 of 1878, to recover penalties for a violation of the excise laws, should be brought in the individual name of the officer, followed by his official title, and not simply in the name of the office itself.
    A person who has been duly elected to the office of overseer of the poor, and has tafcen and filed an oath of office which does not comply with the provisions of the statute, but who has entered upon the discharge of the duties of his office, has, until a successor is elected, as provided in section 34 of 1 Revised Statutes, 348, a sufficient right and title to the office to enable him to institute and maintain an action to recover penalties for a violation of the excise laws.
    Appeal from a judgment, entered upon the verdict of a jury rendered at the Chautauqua Circuit, in favor of the plaintiff, and from an order denying a motion for a new trial made on a case and exceptions.
    The causes of action alleged are sales by the defendant of intoxicating liquors, in quantities less than five gallons at a time, without having a license. The plaintiff had a verdict for $150, upon which judgment was entered. The defendant appeals.

      Julius A. Pa/rsons, for the appellant.

      Allen c& Thrasher, for the respondent.
   Beadley, J.:

The counsel for the defendant contends that the action is improperly brought in the individual name of the plaintiff as overseer, and that the name of the office of overseer, etc., alone should have been the plaintiff. And his reason is that the provision of the act of 1857,.requiring that actions be brought in the name of the board of commissioners of excise (chap. 628, § 22), was so amended as to require them to be brought in certain cases in the name of the overseers of the poor. (Laws 1873, chap. 820; Laws 1878, chap. 109.) And that because actions prior to these amendments were required to be brought in the name of the board of commissioners of excise as such, by analogy the overseer, without the use of his individual name, should be plaintiff. This contention is not supported. That board was in the nature of a body corporate, by force of the statute. The overseer or overseers of the poor of a town are not a board in that sense.

At common law suits by officers were brought in their individual names as such, and no change was made in that respect by 2 Revised Statutes, 473, § 92. And the practice has been uniform, and required that the actions be brought by the officer in his individual name as such. (Supervisor, etc., v. Stimson, 4 Hill, 136; Commissioners, etc., v. Peck, 5 id., 215; Overseers, etc., v. Ely, Hill & Denio (Lalor’s Sup.), 379; Could v. Glass, 19 Barb., 184.) "When the provision of the Revised Statutes .referred to was repealed (Laws 1880, chap. 245) the substitute for it was put into the Code of Civil Procedure (§ 1926), which made no change in the respect in question. Nor did the acts of 1873 and 1878, before mentioned. The action must be brought in the name of the officer, and not in the name of the office merely. The action is properly instituted in that respect.

It is also insisted on the part of the defendant that the original plaintiff was not, and that the present plaintiff is not, an officer de jxire, and therefore the action cannot be maintained. The action was commenced in March, 1880, by Ansel L. Nevins, as overseer of the poor, who died in April, 1881, and the plaintiff was substituted as such in June, following. Nevins was elected at the town meeting of February, 1879, and re-elected in 1880. In 1881 Charles Moore was elected, and resigned shortly after, and the plaintiff was elected at a special town meeting.

The contention of the defendant’s counsel is, first, that Nevins was not overseer, because he did not take the requisite official oath and file the bond required by statute; second, that it did not appear that the plaintiff Horton was legally elected, and third, that it does not appear that he took the oath properly, cr that he filed the requisite bond, and for that reason he is not such officer.

The oath taken by Nevins, following each of his elections, was only that required prior to the amendment of 1874 of article 12 of the Constitution, and was insufficient. His bonds ran to the supervisor of the county of Chautauqua, instead of the town of Hanover. (Laws of 1855, cliap. 269.) The official bond of the plaintiff Horton is the same; and his official oath, and the second one of Nevins have no venue affixed to them. The defect in the bonds is an informality and not material, and the provisions of them in other respects are a substantial compliance with the statute. (Id.) The omission of the venue to the oath of office is not important. (Colman v. Shattuck, 62 N. Y., 349.) The election of Horton appears to have been regular. After the resignation of Moore a special town meeting was held pursuant to notices posted by the town clerk. (1 R. S., 341, § 8.) The fact that no record was kept or preserved of the notices, etc., did not affect the validity of the town meeting or the election. The amendment of the statute (1 R. S., 348, § 34) requiring a petition of voters for the call of a special town meeting was made after tbe election of tbe plaintiff. (Laws 1881, cliap. 391.) Tbe question requiring consideration is whether tbe failure of Nevins to take tbe requisite oath disabled him to bring tbe action. His right to do so depended on bis official character. That be was an officer de faeto merely will not support such right. He must also be an officer de jure. [People v. Nostrand, 46 N. Y., 375; People v. Hopson, 1 Den., 579.) Tbe inquiry is, did Nevins then have such title to tbe office as gave him a right to act as overseer of tbe poor ? Tbe statute provides that before be enters upon the duties of bis office and within ten days after being notified of bis election be shall take tbe oath of office (1 R. S., 345, § 13), and that if be does not do so, etc., such neglect shall be deemed a refusal to serve. (Id., § 16.) And if be shall refuse to serve, a special town meeting may be called to supply tbe vacancy. (Id., 348, § 34.)

There was no such meeting called ; no new election bad, and be proceeded and continued to perform tbe duties of the office. He was legally elected and sought to qualify by taking and filing bis oath of office (which was defective), and making and filing tbe requisite bond. He became an officer by tbe election, and bis title to it was defeasible. His right to continue to bold it depended upon the statutory conditions, one of which was the taking of tbe oath of office. He was in no sense a usurper of tbe office, but was legally inducted into it by election. It may not appear entirely clear that a person elected to the office of overseer of tbe poor, who has failed to take the oath of office, and for that reason is charged with refusal to serve, which permits an election to fill the vacancy thereby occasioned, is an officer de jure in the strict sense of that term, since by the terms of the statute his right to perform the duties of the office seems dependent on his taking the oath. But it has been held in effect that the statute is not self-executing, and does ■ not work a forfeiture for the cause it affords, but that it must come from some act, judicial or otherwise, which effectually ousts him and severs his relation to the office. And that until then he is practically an officer de jure, having a defeasible title to the office. (Foot v. Stiles, 57 N. Y., 399; People v. Crissey, 91 id., 635, 636; Cronin v. Gundy, 16 Hun, 521, 524; and see on that subject Clark v. Ennis, 45 N. J. L. R. [16 Vroom.] 69; S. C., 28 Alb. L. J., 451; Plymouth v. Painter, 17 Conn., 585; S.C., 44 Am. Dec., 574; St. Louis Co. Court v. Sparks, 10 Mo., 117; S. C., 45 Am. Dec., 355.) Upon that theory, when no judicial action is taken in that respect, the vacancy is conditional, depending upon election to fill it, and thus effecting his ouster from the office. And this may be the statutory rule to apply, in view of the needs which may arise in the public service requiring the performance of the duties of an officer which is in the interest of the public, and not of the individual. And public policy is entitled to and has consideration in the construction of statutes and their effect, so far as their provisions may permit. The statute does not in terms declare that the office shall be vacant on the failure to take the oath of office, but merely provides for an election, arising out of what is treated by it as a refusal to serve, to supply a vacancy, the cause for which is furnished and provided for by the statute, in the events there mentioned. And that the title to the office continues and is defeasible in such case until supplied is not inconsistent with the view taken by the court in People v. Nostrand (supra). There was an act by him which was held to divest the incumbent of an office. He had accejited one which came within the constitutional provision imperatively prohibiting the holding at the same time by him of any other office. By accepting it he ipso faoio vacated the other. He could not occupy both. And public policy requires that the acceptance of an office, incompatible with one then held by the same person, should have the like effect. (People v. Corrigue, 2 Hill, 93.) Upon authority, therefore, the conclusion is that Nevins had title to the office to support the action.

This case presents the peculiarity of an attempt (probably made in good faith) on his part to qualify, and a defective execution of the statutory requirement. ’Whether in such case the failure to fully comply with the statute might be treated as irregularity merely, and the right of amendment be afforded so as not to go directly to the tenure of the office, may be a question worthy of consideration when it necessarily arises, does not require the expression of any opinion here. The present plaintiff was substituted in 1881, and so far as appears without objection. And in like manner the action proceeded to the time of the trial in January, 1883. He duly qualified and had a clear title to the office. Whether the defendant, as against him, was entitled to effectually take the objection at the trial tbat the original plaintiff was an officer de facto only, if sncb were the fact, is also a question not to be disposed of without some consideration for reasons which need not now be mentioned.

The evidence seems to be sufficient to justify and support the verdict. And it does not appear that any question was raised in that respect on the trial, either by motion for nonsuit or by exception to the charge or to refusal to charge.

It must be assumed that the case was submitted to the jury in a manner satisfactory to the defendant. And we see no occasion to disturb the verdict.

The judgment and order should be affirmed.

Smith, P. J., and Barrer, J., concurred; Haight, J., not voting.

Judgment and order affirmed, with costs.


author: Bbaduey, J.:

text:
    GILES B. OVERTON, Appellant, v. THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OLEAN, Respondents, Impleaded with THE BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY.

      Neglect of municipal officers to interfere to protect a taxpayer's rights — right of the latter to malee the officers pa/rties to an action drought by himself against the wrongdoers.

    In this action, brought against the president and board of trustees of the village of Olean and a railroad company, the complaint alleged that the plaintiff was a resident and taxpayer of the village and an owner of real estate upon one of its public streets; that the defendant company had threatened and commenced to erect a permanent structure upon the street which would effectually obstruct public travel upon it to the great injury of the plaintiff; that the defendant officers were ex officio commissioners of highways of the village, and possessed all the powers and duties incident to that office; that the plaintiff and other persons owning property on that street had frequently remonstrated with the officers and sought to induce them to interfere officially to protect the said street and the rights and franchises of the public therein, but that the said officers, for some subtle reason, for which the plaintiff could not account, had neglected to take any action either officially or otherwise. The relief demanded was an injunction restraining the company from erecting the structure.

      Held, tliat as the officers of the village and the plaintiff bore to each other a relation similar to that of a trustee to a cestui que trust, and as the said officers had refused to intervene for the plaintiff’s protection when requested so to do, he might make them parties defendant to this action, and so enable the court- to give such directions as might be necessary to protect and preserve his right.
    Appeal by tbe plaintiff from an interlocutory judgment, entered on a decision made at the Cattaraugus Special Term, sustaining a demurrer to the complaint.
    The action was braught against The Buffalo, New York and Philadelphia Railway Co., and the President and Board of Trustees of the village of Olean. The complaint alleges that the village is incorporated ; that one of its public streets is Sixth street; that the railway company is a domestic corporation and has commenced and is proceeding and threatens to erect a permanent structure in the street in such manner as to effectually obstruct public travel on it that the other defendants, The President and Board of Trustees of the village of Olean, are “ex officio commissioners of highways, vested with all the powers and duties incident to that office within the territorial limits of the village of Olean j” that the plaintiff is a resident freeholder and taxpayer of that village, and owns land adjacent to and abutting on Sixth street, and will be greatly injured by such obstruction of the street, and that the preservation of the use of the street for the purpose of travel is a public necessity; that the plaintiff and others owning and occupying lands upon the street have frequently seen and remonstrated with the defendant commissioners of highways to procure their official intervention for protection of the street and the rights and: franchises of the public therein, but for some subtle reason for which the plaintiff is unable to account, the said board of trustees neglect, in their official capacity or otherwise, to take any action against the railway company. The relief demanded is that the railway company be restrained from proceeding to erect the obstruction and for costs against that company. The demurrer is: 1. That there is no joint cause of action alleged against the defendants. 2. That they are improperly joined as defendants. 3. That the causes of action are improperly united. 4. That sufficient facts are not alleged to constitute a cause of action against the village board.

      Geo. J3. Phelps, for the appellant.

      Frederick W. Kruse, for tbe respondents.
   Bbaduey, J.:

The complaint alleges a purpose on the part of the railway company, defendant,, to substantially obstruct and destroy the use by the public of one of the public streets of the village of Olean, by the erection of a permanent structure in it, and that the company has commenced, and is proceeding, in execution of such purpose. This, when accomplished, will be a public nuisance. And the construction is the proper subject for restraint. The village, through the president and board of trastees, as commissioners of highways, may bring an action for that purpose with a view to the preservation of the street. (Laws 1855, chap. 255; Osborn v. I. C. and A. Ry. Co., 27 Hun, 589.) And the complaint alleges a state of facts which malíes it their duty, as the official representatives of that interest, to do so. The complaint, therefore, alleges a cause of action against the railway company and a public interest at least in having it prosecuted. And an interest peculiar to the plaintiff as an owner of property on the street to have remedy sought by action. The important inquiry is whether the plaintiff is permitted to bring this action for the purposes of the relief in view.

It is a well settled proposition that when a party having the power and charged with the duty to become a plaintiff and prosecute an action for a private remedy refuses to do so, another, or others, having a financial interest, actual, contingent or remote in the subject of the cause of action and in the relief, may bring an action making such party and the one against whom the relief is sought, as parties defendant; and thus bring into legal controversy the proper parties to it so that the court may, as between them, grant the appropriate relief as effectually and to all intents and purposes as if they had been plaintiff and defendant. The office of the nominal plaintiff in such ease is to bring the proper parties to the subject of the action before the court, that it may be set in motion to adjudicate between them. (3 Pomroy’s Eq. Jur., § 1095 ; Davenport v. Dows, 18 Wall., 626 ; Everingham v. Vanderbilt, 51 How., 177; Greaves v. Gouge, 52 id., 58; affirmed, 69 N. V., 154; Bate v. Graham, 11 id., 237.)

This method is applicable to eases where the relation of trustee and cestui que trust exists, bj which the trustee may be required to seek a remedy and relief. No reason now occurs to us why it may not be applied to a municipal corporation which refuses to perform a plain duty in which the corporators are interested, and by the nonperformance of which they will be prejudiced. This incorporated village, through its constituted authorities, is charged with the duty of maintaining and preserving for their proper uses the public streets within it. And any failure to .do so by affirmative action, or by negligent omission -to act, is a breach of duty on its part. (Wendell v. The Mayor, etc., 39 Barb., 329.) The relation of the corporation is in its nature that of trustee in respect to the streets, and that of its citizens quasi cestuis que tn'úst, and the latter may, by action in a proper case, restrain it from doing that which may be deemed a violation of such trust to their prejudice. (Lawrence v. The Mayor, etc., 2 Barb., 577; Anderson v. Rochester, L. and N. F. R. R. Co., 9 How., 553, 564.) But as against strangers who are proceeding to produce a public nuisance, an individual citizen who is not specially injured, but is affected only in common with the other citizens of the municipal corporation, cannot proceed by action to restrain or abate. (Burnet v. Bagg, 67 Barb., 154, 165.) The corporation itself, as such representative and trustee, may, by action and injunction, protect the streets against the erection of nuisances in them. And the same reason which supports an action by a citizen against the corporation to restrain it from unlawfully granting permission to create a public nuisance will, it would seem, enable a citizen to bring it into court with a view to relief against a threatened nuisance affecting such citizen in common with others. But that method is adopted as one of necessity; and to permit it the proper party plaintiff must have refused to be the party plaintiff. (See cases cited, supra.) ‘ The allegations of the complaint are not very specific in that respect, but may fairly be treated as sufficient to tender that issue.

The plaintiff alleges that he owns land on this Sixth street, but adds no specific allegations which show further than what may be inferred from that fact that his property there is so situated as to be specially affected and the use of it injured by the contemplated structure, so as to entitle him in his own right to relief and to maintain the action. If that were so, he could have made the railroad •company alone a party defendant (Knox v. Mayor, 55 Barb., 404), but that may not have rendered the municipal corporation an improper party defendant, although, perhaps, unnecessary. There is no relief ashed by the plaintiff as against that defendant. (Ortley v. Messere, 7 Johns. Ch., 139; Bailey v. Inglee, 2 Paige, 278.)

The rights and powers of municipal corporations, created pursuant to statute, are for the purposes of protection of these streets .greater than those of highway commissioners of towns. And it may be that without the aid of the act of 1855 the village of Olean lias ample power by action -to prevent the erection of public nuisances in its streets, and in like manner to abate them. And that •such remedies are merely concurrent with those by indictment and by civil action by the people through their attorney general. (People v. Metropolitan T. Co., 11 Abb. N. C., 304, 313.)

It seems to us that the allegations of the complaint present a suitable case for equitable cognizance. And for the purposes of ■the questions presented by the demurrer, they must be taken as true.

The judgment should be reversed, with costs, with leave to the respondent to withdraw the demurrer and answer over within twenty days on payment of costs.

Smith, P. J., and BaeKbe, J., concurred.

Judgment reversed and demurrer overruled, with costs, with ■leave to the respondents to answer within twenty days on payment of costs.


author: BRADLEY, J..:

text:
    LUCY A. NELSON, Respondent, v. ARTHUR G. YATES and FRANCIS A. SCHOEFFEL, as Sheriff, etc., Appellants.

      Lien upon vessels —1862, chap. 183 — a sale is void unless the facts required by ¡tlm statute arre stated in the application — the voluntary appean'cmee of a lienor does not gime jurisdiction over the siibject-matter.

      A. canal boat, loaded with coal and consigned to the defendant Tates, at Buffalo,, was sunk in the canal at Rochester, and there abandoned by its owner. Yates, who had a coal yard at Rochester, had the boat raised, towed to his yard, andi there unloaded at 'his own expense. With the intent of procuring a lien upon the boat for the expenses so incurred, under chapter 482 of 1862, he presented an application in writing to the county judge, claiming to have expended ninety two dollars and ninety cents, as set forth in the following items, viz.: “For money paid out for raising said boat, towing and unloading, eighty-two dollars and forty cents; for money paid for coal used in stationary engine, three dollars and fifty cents; for money paid out for extra help at night in keeping-said boat at dock, seven dollars.” Pursuant to the proceedings so commenced. the boat was sold and conveyed to the defendant Yates.
    In this action brought by the plaintiff who, at the time above mentioned, held a chattel mortgage upon the boat to recover damages for its conversion by the-defendants in this action:

      Held, that the statute, under which the proceedings were had, gave no lien for the expenses incurred in raising the boat.
    That the raising of the boat could not be considered as an incident to, anb-included in the “ towing,” within the meaning of the statute.
    That as it could not be determined from the application that the expenses-incurred in towing the boat exceeded twenty-five dollars, and that the expenses, incurred in keeping or unloading it amounted to fifteen dollars, as is required by the statute to authorize proceedings to be prosecuted thereunder, the judge-acquired no jurisdiction in the matter, and the sale was invalid.
    The plaintiff in the present action appeared in the proceeding before the county judge and served an answer in which she alleged, among other things, that the application did not state sufficient facts to authorize the issuing of the-warrant, which answer was, by stipulation, stricken out.

      Held, that although her appearance might give the judge jurisdiction over her person, it could not confer upon him jurisdiction over the subject-matter, and did not therefore prevent her from disputing the .validity of the sale in this-action.
    Appeal by tbo defendants from a judgment, entered on tbe report of a referee.
    The action was brought to recover damages for the conversion of a canal boat. The defendants sought to justify a sale of it by virtue of proceedings, alleged' to have been taken pursuant to tbe “ Act to provide for the collection of demands' against ships and vessels.” {1862,. chap. 482.) The plaintiff recovered a judgment, from which the defendants appealed.

      Earl B. Putnam, for the appellants.

      Giles S. Piper, for the- respondent.
   BRADLEY, J..:

The plaintiff sold the canal boat in question to one Hyde on the 3,0th day of October, 1882,. and took from him a mortgage on the boat to secure the payment of the purchase-money, $1,000. Hyde took possession of and operated it until in, July,. 1883,. when it sank in the Erie canal, at the city of Boehester, loaded, with coal, consigned to the defendant Yates at Buffalo, who also had a coal yard at Boehester. The boat was abandoned by Hyde. It was after-wards raised and towed about three-fourths-, of a mile to the coal yard of Yates, and there unloaded at his expense, and for all which he paid eighty-two dollars and forty cents. And afterwards,, with a view to proceeding under the statute (Laws 1862,. chap. 482), to charge the boat with the amount of expenses, etc., and to collect them, presented to the Monroe county judge an application in writing, stating that the boat was loaded at Ithaca with a cargo of coal consigned to him at Buffalo; that while on the way it sank in the Erie canal at Boehester, and was abandoned by her master; that the consignee’s agent incurred expenses to the amount of ninety-two dollars and ninety cents on behalf of the owner of the boat, on account of raising and towing, or getting said boat to a proper dock or place to unload her, and on account of unloading the said boat; that the items composing said debt of ninety-two dollars and ninety cents are as follows :

Eor money paid out for raising said boat, towing and unloading. $82 40
For money paid for coal used in stationary engine. 3 50
For money paid out for extra help at night in keeping said boat at dock. Y 00
Total being. $92 90

which.'is justly due to said Yates in whose behalf this application is-made, over and above all payments and just deductions.” The county judge issued the warrant applied for to the sheriff of Monroe-county, and by Yates’ request he seized the boat. And it was-afterwards sold by him at public auction, by virtue of the proceeding so instituted. The mortgagor had made default in payment of a portion of the moneys secured by it, and the plaintiff as such mortgagee, before the sale, advised the sheriff of the mortgage and her claim to the property, and forbade the sale. The main question is whether the application was sufficient' to give jurisdiction to issue the warrant and to support the proceeding which resulted in the sale. The statute, so far as applicable, provides that whenever a debt’amounting to fifteen dollars or upwards shall be contracted by the master, owner, charterer, builder or consignee of a vessel, or the agent of either of them, within this State, on account of the wharfage and expenses of keeping it in port, including the expense incurred in employing persons to watch her, on account of loading or unloading, or for advances made for procuring necessaries for such vessel, or whenever a debt amounting to twenty-five dollars or upwards shall be so contracted on account of the towing or piloting, etc., such debt shall be a lien upon such vessel and shall be preferred to all other liens thereon except mariners’ wages. (Laws of 1862, chap. 482, § 1.) And that the application shall exhibit and specify : 1. By whom and when such debt was contracted and for what vessel. 2. The items composing such debt. 3. The amount claimed, and that the same is justly due to the person in whose behalf the application is made, over and above all payments and just deductions. (Id., § 5.) This statute is applicable to canal boats navigating the canals of the State, and in that respect is an enlargement of the provisions of the Revised Statutes which are repealed by it (Fralick v. Betts, 13 Hun, 632; King v. Greenway, 71 N. Y., 413), and is designed to accomplish in the State, to a limited extent, that which has been the maritime law of the civilized world from a very early period, arising out of the necessities of international commerce. (The Emily Sonder, 17 "Wall., 666.)

The proceeding in question is onemrem. afforded by statute only and wholly dependent upon it; and its purpose and effect being to make the lien provided for effectual, and to divest title to property tbe statute must be substantially observed, and the right to proceed affirmatively established iii the manner provided for by it. The jurisdiction is derived from the application. If that fails in any material respect to present the case required by the statute, the proceeding and its results are ineffectual to afford any rights.

The expense of unloading the boat comes within that for which a lien may be produced, but with that of keeping it in port and of employing persons to watch her, it must amount to fifteen dollars for that purpose. This does not appear by the application of the libelant. The item of eighty-two dollars and forty cents includes the expense of raising, towing and unloading, without advising what amount was incurred for the latter, and no means are furnished by the libel to aid in determining that it amounted to fifteen dollars, or by including that for extra help, keeping the boat at dock, seven dollars, it amounted to fifteen dollars. The expense of towing is also included with that of raising and unloading, and therefore does not advise that it amounted to twenty-five dollars. The expense of raising the sunken boat is not within the statute. And for that there is no means given to ascertain what amount should be deducted from the eighty-two dollars and forty cents, or what would remain for the expenses of towing and unloading. This method of specifying the items of claim might, if permitted to support the proceeding, give opportunity to evade the statute and obtain a lien and make sale of property when the amount of expense of the character required was insufficient, and thereby the purpose of the statute would be defeated.

The application for the warrant must contain something for the judicial action of the judge to whom it is presented, and to enable him to determine that the requisite facts exist in support of it. And in such case the proceeding may not be subject to collateral attack, although in a direct proceeding for review his determination might be deemed error because of insufficiency of proof. (Skinnion v. Kelley, 18 N. Y., 355; In re Faulkner, 4 Hill, 598; Van Alstyne v. Erwine, 11 N. Y, 331; Roderigas v. East R. S. Institution, 63 id., 460-464.)

But when there is 'a total defect of proof, or none for judicial reason to reach the conclusion that the necessary facts exists, the officer has no jurisdiction and the proceeding founded upon it is void. (Staples v. Fairchild, 3 N. Y., 41; Brown v. Mayor, 3 Hun, 685.) This was the character of the application upon which jurisdiction depended in this case. It gave to the judge no opportunity to judicially infer the requisite facts to constitute a lien or to support the proceeding. No means were furnished by it to estimate the amount of expense of towing or unloading, or that it was requisite to permit the warrant to issue.

It is contended by the defendant’s counsel that the raising the sunken boat was incident to and included in the towing within the meaning of the statute. The term towing has a well defined meaning in navigation, and in the statute is used in connection with piloting. It is entirely distinct from raising a sunken vessel and, ordinarily, would not include the latter act. And nothing appears in the statute, when given the most liberal construction, which can imply that the expense of lifting a vessel from the bottom of a lake or canal was included in the following act of towing it into port or to a wharf. That has reference to floating a vessel, and to'govern its course and give it progress under circumstances requiring such aid. The proceeding, when authorized under the statute to enforce a lien, has priority over an existing mortgage, and the defense would be complete if jurisdiction had been acquired to seize and sell the boat.

The plaintiff answered the libel in the proceeding, in which she alleged, amongst other things, that it did not contain sufficient facts to authorize the issuing the warrant, and the answer was stricken out by stipulation.

The defendant’s counsel insist that this appearance, answer and stipulation rendered the proceeding res adjudicata, and estopped her from contesting its jurisdiction or effect. There was no trial of an issue of fact or law in the proceeding. And assuming that the plaintiff so appeared as to give jurisdiction of her person, so far as that was important, the question of jurisdiction of the subject-matter still remained.

The statute required notice to the owner, which may have been obviated by appearance. Hut this was a proceeding in rem, and the right to proceed depended on jurisdiction of the subject-matter. This the plaintiff did not waive.

The rale is different when the right to proceed is derived from jurisdiction of the person of a defendant, which is the case in actions where the jurisdiction is general of the subject-matter.

The plaintiff is not disabled from alleging that the proceeding and sale were nullities. And because the application for the warrant did not state facts requisite to afford jurisdiction, that contention of the plaintiff is supported. And she had title to the property by virtue of the sale to her by the , mortgage. This seizure, refusal to- deliver and sale were evidence of conversion of the property.

None of the exceptions were well taken.

The judgment should be affirmed.

Smith, P. J., BaeKeb and Haight, JJ., concurred.

Judgment affirmed.


text:
    SAMUEL W. NASH, Respondent, v. WHITE’S BANK OF BUFFALO, Appellant. SAMUEL W. NASH, Respondent, v. THE MANUFACTURERS AND TRADERS’ BANK, Appellant.

      •Construction of amendatory statutes — when an amendment does not take away the right to recover penalties incurred under the original act prior to its amendment — 1870, chap. 163; 1880, chap. 567.
    In. October, 1873, an action was commenced, under section 1 of chapter 163 of 1870, to recover from the defendant, a hank, double the amount of interest taken by the defendant on discounting certain promissory notes, upon the ground that they were discounted at a rate of interest greater than seven per cent per .annum. The first section of the said act authorized every banking association to take and charge interest at the rate of seven per cent per annum, and provided that “in case a greater rate of interest has been paid, the person * * * paying the same * * * may recover back twice the amount of the interest thus paid from the association taking or receiving the same.” Chapter 567 of 1880 amended the first section of the act of 1870, stating that it “is hereby amended so as to read as follows.” It then set forth the same section substantially as in the former act, except that the words “six per centum” were inserted in the place of the words “ seven per centum.” This action was tried for the third time in March, 1884, and judgment in favor of the plaintiff entered therein in September of that year.

      Meld, that the amendment to the act of 1870 did not take away the plaintiff’s right to recover the penalties imposed by the first act for a violation of its pro>visions, where such penalties had been incurred before the passage of the amendatory act.

      Knox v. Baldwin (80 N. Y., 610) distinguished.
    ■ Appeal by the defendants from judgments, entered on the reports-of a referee.
    The actions were commenced in October, 1873, founded on chapter 163, of the Laws of 1870, to recover penalties given by that act for tak ing illegal rates of .interest. The complaint in the first action contains 274 counts, by each of which the plaintiff charges that he presented to the defendant a promissory note (describing it), and made application for its discount, and that the defendant purchased of him and discounted the note “ at a greater rate of interest than seven per cent per annum (specifying amount, etc.), in violation of the provisions of the statute referred to.” The plaintiff recovered in that action $4,801.58. The complaint in the second action contained 274 counts substantially the same, except in the description of the notes and amount of discount, and the plaintiff recovered in that action $7,478.74.

      Sherman S. Rogers, for the appellants.

      Joel L. Walker, for the respondent.
   Beadley, J.:

The defendants are banking associations, organized pursuant te the general law of the State. Their place of business is the city of Buffalo. They came within the provisions of chapter 163, Laws of 1870. And these actions were brought to recover upon liabilities-alleged to have been incurred by receiving from the plaintiff and reserving a greater rate of interest on the discount of notes presented by him and discounted by the defendants than that allowed by the statute. This is a review of the third trial. That of the first appears in 68 New York Reports, 396, In that of the second trial the' opinion of the General Term is not reported. (25 Hun, 311.)

The question now here for consideration is whether the provisions of the act of 1870 remained operative, or any statute existed' to support the right of action or recovery by the plaintiff at the time the trials and recoveries were had. These actions were tried in March, 1884, reports made in July,, and judgments entered in-September, 1884.

The first section 'of the act of 1870 provided that “ every banking association * * * is hereby authorized to take, receive, reserve and charge, on every loan or discount made, or upon any note, bill of exchange or other evidences of debt, interest at the rate of seven per cent per annum, * * * and in case a greater rale of interest has been paid, the person * * * paying the same * * * may recover back twice the amount of the interest thus paid from the association taking or receiving the same,” etc. The question arises on the effect of the act passed June 4, 1880, providing that the first section “ is hereby amended so as to read as follows.” Then the section is set forth, and is substantially the same as that of 1870, except that “six per centum” is inserted in the place of seven per cent. (Laws of 1880, chap. 567.) The plaintiff wholly derives his right of action from the act of 1870, and that is penal in character. The causes of his actions are not vested rights in such sense that they may not be taken away from him by legislation. The remedy is not one to obtain satisfaction for injuries to persons or property, or for the protection of rights of either, but to recover twice the amount of interest taken in excess of that permitted by law. The right of recovery is given as a punishment for violation of the statute, and not merely as damage's for an injury done to the plaintiff. It does not come within those which are vested rights, and the legislature is not denied the power to divest or destroy them. It was, therefore, within the legislative power to remove the support given by the statute to the action at any time before, and thus defeat recovery. (Butler v. Palmer, 1 Hill, 324; Norris v. Crocker, 13 How. [U. S.], 439; Oriental Bank v. Freeze, 18 Maine, 109; S. C., 36 Am. Dec., 701.)

It is contended by the defendant’s counsel that the first section of the act of 1870 was repealed by that of 1880. If that is so, all rights of action under the former were defeated and the plaintiff’s right to recover barred. The title of the latter act and the terms of the act itself import an amendment merely of the prior one. It does not repeal it as a whole, nor does it have the effect of a repeal and re-enactment of those portions of the prior one carried into it.

They have continued operative from the time of the passage of the* first act, and remain effectual so far as applicable to causes of action accruing since its passage, and prior to the amendatory act. (Ely v. Holton, 15 N. Y., 595; Moore v. Mausert, 49 id., 332; affirming 5 Lans., 173; People v. Supervisors, 67 N. Y., 109, 117; Goillotel v. Mayor, 87 id., 441, 445; Calhoun v. D. and M. R. R. Co., 28 Hun, 379.)

Tbe method adopted in this instance is that which has for many years been applied in the amendment of statutes, and is within the requirement, of the- Constitution. (Art. 3-, § 17.) The effect is the same as if the amendment had been made by the insertion of the changed words in the then existing statute. The parts stricken or left out are abrogated. The new provisions take effect only from the time of the amendment, and the portions of the amended act retained have not ceased, but continue to be the law as from the time first enacted. The act contained no saving provision. The question arises whether .to any, and what, extent the then existing rights of action were affected by this process of amendment of the act of 1870. The provision, making seven per cent the legal rate of interest for the banking associations to take, is abrogated, and six per centum substituted.. This is prospective only, and is the basis of subsequently accruing rights founded on the statute. But the provision giving right to sue and “recover back twice the amount of the interest thus paid,” in excess of that permitted to be taken,, has not been disturbed by the act of 1880, but still continues to form a part of the act of 1870. This statute of 1870, although it has no place from which it speaks except in that of 1880, into which it has been introduced, still declares the right to sue and recover. This right thus expressed covers two periods, so to. speak. One, when the legal rate of interest was seven, and the other later, when it is six per cent per annum, as the boundary of profit to banking associations in the discount of commercial paper.

It therefore declares the legislative intent to continue and afford the right of action for those causes which accrued under the statute prior to dune 4, 1880, when the rate of interest was seven per cent, as well as to apply the same provisions for causes thereafter accruing, founded upon a less rate of interest. The abrogation of the former and substitution of the later rate of interest was but a modification to conform it to the- general statute on the subject (Laws 1879, chap. 538), and did not have the effect ro defeat rights which had accrued, inasmuch as the statute giving the right of action and expressing tbe liability remained, .unless -the measure of liability was so removed or -.extinguished as not to ¡permit the relief. This view is in Jiarmony with and required by propositions deemed well settled in respect to the construction and .application of statutes. (People v. Supervisors, 67 N. Y., 109, 117, 119; Calhoun v. D. & M. R. R. Co., 28 Hun, 379, 388, 389; Syracuse Savings Bank v. Town of Seneca Falls, 86 N. Y., 317, 322; Goillotel v. Mayor, 87 id., 441, 545 ; and see cases cited, supra.)

In Palmer v. Conley (4 Denio, 374; affirmed 2 N. Y., 182) the action was for a penalty given against .a tenant and those who should knowingly assist him in the removal of goods .from demised premises, to avoid .the payment of rent. (2 R. S., 503, § 17.) And after the cause of action accrued the statute providing for distress for rent was repealed (Laws 1846, chap. 274), while that action was pending. It was there contended that inasmuch as the foundation of the cause of action was the right to distrain for rent, and that was repealed, the remedy went with it. The court held that the repeal did not affect the then existing cause of action, and this was evidently on the ground that the section of the statute giving the right of action to recover it was not repealed, and thereby those penalties which had previously accrued could be recovered. The action could not be supported on any other ground. (See note, 4 Denio, 377; Fisher v. N. Y. C. and H. R. R. R. Co., 46 N. Y., 656.) In the case at bar the provisions of the statute of 1870, giving the right of .action, still remain in force and have relation back to that time. The act of 1880 merely increased the limitation and thereby reduced the rate of legal interest. It is difficult to see how that can be construed to abrogate the penalty for violation of the provision of that of 1870. The seven per cent was no part of it. The liability was founded in the excess taken, and supported wholly by it. That has not been disturbed by the provisions of the subsequent act, but those of 1870 are completely continued and retained with all the vigor they then possessed. Such excess and its duplicated amount are so distinguished from the abrogated seven per cent that they may be treated as the subject of the continued operative provisions of the former act and still support the actions.

The learned counsel for the defendants cites Knox v. Baldwin (80 N. Y., 610), and refers to a proposition there stated in support of bis contention here. That was. an action to recover of a trustee-of a corporation organized under the general manufacturing act, for' failure to file its report as required by section 12 of that act. The company was organized in June, 1868. The default alleged was the failure to make and file a report in January, 1869. By section 12 of the act of 1848 (chap. 40) it was required to be done within twenty days from the first day of January. In 1875 that section was “amended so as to read as follows,” and then was inserted the section as it before then was (Laws 1848, chap. 40; Laws 1871, chap. 657), except that it was so modified as to the time of filing the first report as not to require it to be done within a year after the organization of the company. (Laws 1875, chap. 510.) So that a corporation starting after January in any year would not be required to make a report until in January of the second year thereafter. That action -was commenced after the passage of the act of 1875, and the proposition there stated in the opinion delivered was that the fact that the provision of section 12 of the act of 1848, requiring a report in January of each year after the oi’ganization of the company, was repealed in 1875, was conclusive against the plaintiff’s right to maintain the action. That proposition, so stated, bears apparently with some force on the question here. It was not necessary to the result given to that case, which was well decided on other grounds, and especially that of the statute of limitations, which was treated by the court as decisive, and was apparently adopted as that which was effectual if the other objections discussed “ could be overcome.” Yet this view expressed by the learned judge who delivered the opinion is entitled to and requires such respect and consideration that we should hesitate to deny to that proposition, application and effect, if the question in this case came within and was not distinguishable from it. It may be said that the statute there distinctly abrogated the provision of the act of 1848, requiring the making of a report by a company within the first year of its existence, and that no duty thereafter existed to support a breach.

The amendment in question here has made, in terms, no change in the penalty given by the act of 1870. The modification is not inconsistent with the liability which existed before, as the statute designated no specific sum as the amount to be recovered, but continued it dependent on the amount óf the prohibited excess. It cannot be said that the consequences of the violation of the statute have been increased or diminished by the amendment. It is still a liability for double the excess over a designated rate treated as the legal rate of interest. And therefore the provisions of the statute, as amended, are not in the respect in question repugnant to the continuance of the operation of the retained provisions of the act of 1870 in support of liabilities incurred under the latter prior to tho amendment. (Commonwealth v. Herrick, 6 Cush., 465.) The effect is a modification for the purposes of subsequent transactions of discount by banking associations rather than a repeal. The question is one of some importance and interest as applied to the construction of statutes.

These views lead to the conclusion that the judgments should be affirmed.

Smith, P. J., and Haight, J., concurred; Barrer, J., not sitting.

Judgment affirmed.