author: Herrick, J.

text:
    The People ex rel. John A. Roeblings’ Sons Company v. Edward Wemple, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    'Taxes—Foreign corporation—Manufacturing within the state—Exemption.
    In a proceeding by certiorm-i to review the decision of the state comptroller in assessing taxes upon the relator, a New Jersey corporation, under the corporation tax laws, the relator claiming exemption upon the ground that it carried on a manufacturing business within this state, it appeared that relator was organized for the purpose of “manufacturing, buying and selling iron, steel wire, wire rope,” etc., and stated in its affidavit filed with its claim for exemption, that it manufactured wire at its Trenton factory, and shipped the same to its New York factory, and there made said raw material up into ship rigging, endless elevator chains, etc., and then fitted said wire with blocks, pulleys, and other attachments, and thus converted it into useful and complete articles for the market. Reid, that the manufacturing done by the relator in New York was colorable merely, and does not come within the exemption of the statute.
    Certiorari to review the decision of the comptroller of the sstate in assessing taxes upon the relator to the amount of $9,403.79, under the corporation tax laws, for the years 1880 to 1889, inclusive.

      Charles Haldane Johnson, for relator; S. W. Rosendale, att’y-gen., ■for def’t.
   Herrick, J.

The relator is incorporated under the laws, of the state of New Jersey for the purpose of carrying on a manufacturing business. The certificate of incorporation provides: “That the borough of Chambersburgb, in the county of Mercer .and state of New Jersey, is the place where the principal part of the business of the said company is to be carried on. That the •city of New York, in the county and state of New York, is the ■place where said company may have an office and store for the sale of their manufactured, goods, and for the transaction of other business connected therewith.” There is no dispute but that the relator is doing business within this state, and hence subject to its laws in regard to taxation, but the relator claims that during the years for which the taxes were levied in this case, it was doing a manufacturing business within this state, and hence comes within the excejDtion mentioned in § 3 of chapter 542 of the Laws of 1880, which section provides that “ every corporation * * * incorporated or organized by or under the laws of any other state or country and doing business in this state, except * * * manufacturing corporations carrying on manufacturing within this state * * * shall be subject to and pay a tax,” etc., etc.

The relator alleges that it is carrying on a manufacturing business within the state of New York.

The defendant, in his return to the writ of certiorari herein, .specifically denies that the relator is carrying on a manufacturing business within this state. The relator is incorporated for the purpose of manufacturing, buying and selling iron, steel wire, wire ropes, and all other materials used in connection therewith. And the relator states in the affidavit filed in its claim for exemption “ that the said corporation manufactures wire at the said factory at Trenton, New Jersey;. that wire is shipped in coils to the New York factory ; and that at the said New York factory the .said raw material is made up into ship rigging, endless elevator chains, and other useful articles; that the said wire is fitted with blocks, pulleys and other attachments at the said New York factory, and is thus converted into useful and complete articles ready for the market.”

The defendant, in his return to the writ herein, alleges that the ■premises in the city of New York used and occupied by the relator are not used and occupied as a factory; that they are used for its offices and place of business and for the storage of its goods, .and “ that on each of the storage floors two or three men are employed by the relator in adapting the manufactured articles of ■the company for such purposes as may be required, such as .attaching loops to wire ropes fpr use as switching rods, attaching hooks and loops to wire cables for various purposes, and that no wire, or wire ropes, or any other article is manufactured at its ■place of business.”

This statement of the defendant may be taken as not in conflict with the affidavit of the relator, but as an explanation of what the relator described as the making up of the raw material and •converting it into useful and complete articles ready for the market. The process of treatment is not described by the relator, ¡so that from its statement alone it cannot be determined whether it is in truth a manufacturing business that is being carried on in the ¡state of New York or not; the relator’s affiant says it is, but does not so describe it as to enable the court to determine whether he is correct or not. As explained by the defendant, it does not ¡seem to me that it is manufacturing within the meaning of the .statute; what it did in the city of New York was but an incident of its business, not the business itself; it was not manufacturing but the putting together articles manufactured elsewhere; the -cutting into lengths coils of wire can hardly, it seems to me, be the manufacturing of wire ropes, cables or rigging.

“ The definition of the terms 1 manufacturing corporations ’ and ‘ manufacture ’ as derived from some decisions and statutes to ■which our attention has been called, is of little service in the construction of the language of this act. These terms must be construed in view of the general purposes of the acts in which they are used, and the general phraseology found in connection with' them. To give effect to the legislative intention, their ordinary meaning may be enlarged or restricted.” People v. Horn Silver Mining Co., 105 N. Y., 76-82; 6 St. Rep., 498.

But assuming that in a sense, or technically speaking, that the ¡acts or processes described is manufacturing, still I think it is not within the spirit or intent of the statute; it is not a carrying on -manufactures within this state within its meaning.

In determining whether a given case is within a clause in a ¡statute exempting certain property or interests from taxation, the policy of the law in making the exemption must be considered and should have great weight. People ex rel. Brush Electric Ill. Co., 42 St. Rep., 272-276.

The terms used must be construed in view of the general purposes of the act. One of those purposes was to encourage manuiactures within the state, and the facts in this case would seem to-indicate that a ruling that corporations doing business in the manner the relator has been are exempt from taxation would rather discourage than encourage the growth of manufacturing interests in this state. The great proportion of relator’s manufacturing is done outside the state ; the proportion inside,' if it be considered manufacturing, is so small that it would almost appear that it was done here merely for the purpose of relieving the business from taxation.

To secure exemption under this act some substantial portion of the manufacturing business of the corporation should be done-here; it should not be a mere incident of the business, or done in. connection with the main business; it is the manufacturing business that is to be exempted, not the business that any one chooses, to establish in connection with manufacturing, and the manufacturing must be real, not colorable.

Comparing the amount claimed to have been manufactured in the state of New York with either the total amount manufactured, or with the amount sold within the state it seems to me-would bring one to the conclusion that to exempt the business-done in this state because of the manufacturing done within the state would be very far from encouraging the growth of manufacturing industries here, and unless the words of the statute can be construed in no other way the relator should not be relieved. It would be a plain case of the letter of the statute killing its-spirit.

It seems to me that the manufacturing done by the defendant in this state is colorable merely, and does not come within the-exemption of the statute. People ex rel. v. Wemple, 42 St. Rep., 60; People v. Horn Silver Mining Co., 105 N. Y., 76; 6 St. Rep., 495.

Being subject to taxation the determination of the comptroller as to the amount, unless clearly shown to be erroneous, will not be disturbed. People ex rel. v. Wemple, 42 St. Rep., 60; People ex rel. v. Wemple, id., 400-404, and the determination of the comptroller not being clearly shown tobe erroneous in this case should, not be disturbed.

The determination of the comptroller is affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurs.


source: Caselaw Access Project

author:
Herrick, J.
      Matham, P. J.

license: Public Domain

text:
    William O. Douglass, Resp’t, v. Peter Ferris et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    1. Guardian and ward—Duty of guardian—Payment—Discharge of sureties.
    The condition that a guardian shall in all things faithfully perform his-duly according to law requires him not only to render a correct account, but to actually pay over the balance to his ward when he is entitled to receive it, and any payment received by the ward because of the fraudulent representations of his guardian does not operate as payment in fact, and. does not discharge the sureties upon the guardian’s bond.

      .3. Same—Sureties’ duty.
    It is not necessary for the ward to notify the sureties of the dishonesty of his guardian, in order to hold them to the obligation of their bond ; , they owe more than a passive duty, and should see to it that their principal •discharges his duty; if they neglect’it, they do so at their peril.
    (Mayham, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon-trial by the court without a jury.
    Action upon the bond of a guardian.
    The following is the opinion of the court below referred to in the opinion of the general term.
    Tapp an, J.—The facts found are contained, in the decision, and need not be separated further than is necessary to state clearly the points involved in the decision.
    The bond sued upon is joint and several.
    Before § 758 of the Code of Civil Procedure was amended September 1, 1877, the death of a joint surety discharged his ■estate from all liability upon such contract.
    The bond in suit was given in 1872. The death of Rodney Sargent January 28, 1887, discharged his personal representative 'from the joint liability of her testator upon such bond. 3 R. S. (5th ed.), 669, § 1; Getty v. Binsse, 49 N. Y., 385; Wood v. Fisk, 63 id., 245; Risley v. Brown, 67 id., 160; Hauck v. Craighead, id., 432.
    September 1, 1877, § 758 of the Code of Civil Procedure was •amended so as to read, that the estate of a person or party jointly liable upon contract with others shall not be discharged by his •death, but the court may make an order to bring in the proper representative, when necessary to do so. This amendment did not affect the bond in suit, which had been given before it became the law. Mo act of the legislature could alter the effect of this bond, to the prejudice of either party. The law as it stood when the bond was given is considered a part of the written condition ■thereof. United States v. Price, 9 How., U. S., 83; Fielden v. Lahens, 6 Blatchf., 524; Randall v. Sackett, 77 N. Y., 480; Smith v. Osborne, 31 Han, 390, 392.
    The action was revived under the provisions of § 454, Code of 'Civil Procedure, which provides th°at two or more persons severally liable upon the same written instrument * * * may .-all or any of them be included as defendants in the same action -at the option of the plaintiff. Under this section the plaintiff had -the right to join the original defendants in the action ; to discontinue the action as to the defendant Gfilletta Low, and at the death •of Rodney Sargent to revive the action against the defendant Abbie A. Prouty, as personal representative of said deceased defendant, and to continue the same to judgment against the present defendants, taking a personal judgment against the defendant Peter Ferris, and a judgment to be collected by due course of administration against the defendant Abbie A. Prouty, sole executrix of Rodney Sargent, deceased. Churchill v. Trapp, 3 Abb., 306; Eaton v. Alger, 57 Barb., 179; S. C., 47 N. Y., 345; Hauck v. Craighead, 67 id., 432, 436.

      The condition of the bond in suit is that Edwin B. Low shall-well and faithfully in all things discharge the duty of guardian of the plaintiff, his ward, according to law, and render a just and true account of all moneys and.property received by him, and of the application thereof, to and before any court having cognizance, thereof, when thereto required.
    The case presented by the evidence shows that the guardian, soon after his ward attained his majority, rendered a correct account, showing the true balance, remaining in his hands, but did not pay such balance, but by fraudulent representations induced his ward to receive in payment a worthless note and mortgage, taking from him a discharge and authority to enter a decree with the surrogate of Essex county, who had appointed the guardian, judicially settling his account, and discharging him and his sureties upon the bond in suit.
    As the guardian rendered a correct account, showing the true-balance, it is insisted by the counsel for the defendants that the-fraud committed by the guardian in making the payment was-not part of his conduct as guardian, but was the individual fraud of the guardian, and not within the condition of the bond.
    The condition that the guardian shall in all things faithfully perform his duty according to law requires him not only to-render a correct account, but to actually pay over the balance to-the ward when he is entitled to receive it. Any colorable payment made with counterfeit coin, spurious bills, or checks drawn upon a bank in which there were no funds to pay, or any pay-merit received by the ward because of the fraudulent representations of the gúardian does not operate as payment in fact, and does not discharge the sureties upon the guardian’s bond. Bank v. Buchanan, 87 Tenn. 32; S. C., 10 Am. St. Rep., 617, note at page 649, and cases there cited.
    The undertaking of the surety that the guardian shall actually pay protects the ward against any fraud of the guardian committed in the attempt of the latter to make payment or obtaini satisfaction or discharge of the debt due by the guardian, as such,, to the ward. Until the guardian had paid the ward the money,, or property which was a just equivalent for it, he had not faithfully performed his duty as guardian.
    After such payment has once been made, the liability of the guardian as such and of his sureties ceases; further dealings of the guardian whereby he defrauds the ward is personal fraud, not involving his conduct as guardian, for which the sureties upon his bond cannot in any manner be made liable. The release and discharge from plaintiff to Edwin B. Low, his guardian, having-been declared void for fraud, by a'court of competent jurisdiction, the liability of the defendants, as sureties upon the bond of the guardian, if not affected by loches, remains the same as though the release had never been given. Parr v. State (Md.), 17 A. 1020; Am. Dig., 1889, 1722.
    The attempted payment by Edwin B. Low, as guardian, to the-plaintiff, his ward, and the discharge given therefor, and the decree in the surrogate’s court based thereon, having been set aside for-the fraud of such guardian, and it having been affirmatively adjudged in an action brought in this court by the plaintiff against Edwin B. Low as guardian that said Low as such guardian pay a sum of money to plaintiff, for which he is liable as guardian, such judgment and decree obtained in the manner and under the circumstances detailed in the findings of fact is evidence against the sureties upon said guardian’s bond and is prima facie binding upon them. Rockfeller v. Donnelly, 8 Cow., 623; Thayer v. Clark, 48 Barb., 243; Binsse v. Wood, 37 N. Y., 526; Gerould v. Wilson, 81 id., 573; Scofield v. Churchill, 72 id., 565; Casoni v. Jerome, 58 id., 315; Harrison v. Clark, 87 id., 572; Heard v. Lodge, 20 Pickering, 53; 32 Am. Decisions, 197, and note p. 202; Parr v. State (Md.), 17 A., 1020; Am. Dig., 1889, 1722.
    There being no evidence in any manner rebutting the reasonable inference to be drawn from the judgment roll in that case, it is proof of the fact of the liability of Low as guardian to the plaintiff and is competent evidence of the guardian’s fraud. Thomas v. Hubbell, 15 N. Y., 405; Lee v. Clark, 1 Hill, 56; Bridgeport Ins. Co. v. Wilson, 34 N. Y., 275; Conner v. Reeves, 103 id., 527; 4 St. Rep., 216; Heard v. Lodge, 20 Pickering, 53; 32 Am. D., 197, 202; Gillett v. Wiley, 126 Ill., 310; 9 Am. St., 587.
    The judgment before mentioned determined that there was a •suffeient rescission of the attempted payment with a proper offer to restore the note and mortgage, and the same have always since remained at the disposal of Low, and were ready to be delivered to him at the trial.
    The note and mortgage were taken as actual payment, and except for the fraud of Low would have operated as payment, of the ■amount due from him to the plaintiff; as the attempted payment was set aside for fraud it did not operate to extend the time of payment of the original indebtedness.
    It does not appear that there was any irregularity in the entry ■of final judgment in the action between the plaintiff and Low. An irregularity of the kind claimed could only be corrected by proper motion. Wright v. Nostrand, 94 N. Y., 32.
    It is insisted by the counsel for the defendants, that such loches •on the part of the plaintiff are shown that the sureties upon the guardian’s bond are released.
    The fraud of Edwin B. Low, the guardian, was committed May 14, 1879. It was discovered by plaintiff in November, 1880, ana was by him immediately communicated to Low, and the plaintiff then demanded that the transaction respecting the note and mortgage, by which the fraud was committed, and all proceedings which had been taken under the discharge and decree of the surrogate, should be cancelled and treated as void, and that said Low .as guardian pay the $3,200 and interest, for which the note and mortgage had been substituted, to which Low assented and promised to make such payment, and in February paid $800.
    In April, 1882, Low transferred his real estate to his wife, and made no further payment upon the amount acknowledged by him to be due to the plaintiff.
    In October, 1882, plaintiff commenced the action against Low, his guardian, in which judgment was entered in February, 1885, vacating the attempted payment by the note and mortgage, and setting aside the discharge and the decree of the surrogate based thereon, and giving judgment in favor of the plaintiff against Low for the amount due by him as guardian.
    On June 9, 1885, the judgment had been affirmed by the general term and final judgment was entered. On June 15, 1885, executions on the judgments were issued and returned unsatisfied.
    This action was brought October 31, 1885, and then the sureties first became aware of the fraud of Low, and of the proceedings taken by the plaintiff in consequence of such fraud.
    On June 27, 1885, Low was and since then has been insolvent.
    It is fairly to be inferred that the assent of Low and his promise to pay in November, 188.0, and afterwards often repeated, and his payment in February, 1882, was the cause of plaintiff’s failure to prosecute an action against Low until October, 1882.
    From that time until the commencement of this suit plaintiff was prosecuting the Suit against his guardian, to avoid the effects of his fraud, and to put himself in condition to prosecute the sureties, the guardian during all the time unjustly defending and interposing to delay.
    Under the circumstances did the plaintiff owe any duty.to the sureties which he omitted? They undertook, as has been shown, to guard and protect him against the fraudulent conduct of his-guardian. He had undertaken to settle with this guardian when he attained his majority, and to obtain payment. ' In the attempt to pay him the guardian had cheated and defrauded him, and in that way had obtained his discharge. Until such payment and. discharge had been set aside for the fraud, plaintiff could noteall upon the sureties, and he had the right to take the proper proceedings for that purpose; whatever time was necessarily taken for that purpose, plaintiff was entitled to. The guardian was not. faithfully performing bis duty when he committed the fraud, nor was he when he resisted proper legal proceedings to vacate and. set aside what he had gained by his fraudulent conduct as-guardian.'
    The delays were caused by the fraudulent and improper-conduct of the guardian as such, against which the sureties had undertaken to guard the plaintiff.
    The sureties were bound to know that any transaction between plaintiff and Low by which he defrauded plaintiff in paying over such money was liable to be set aside for such fraud, and that, nothing, short of actual payment would release the guardian or his. sureties.
    It was their duty to protect themselves by such inquiries as to-payment as would have put them into possession of the facts. The plaintiff was in the neighborhood and they could have made-, inquiry of him. Without such inquiry he had no occasion to-communicate with the sureties.

      The plaintiff having acted reasonably under the existing circumstances, and the delay in calling upon the sureties having been caused by the fraudulent and dishonest conduct of the principal, the guardian for whom the sureties had undertaken that he should as guardian act honestly, and without fraud, such delay does not constitute loches which will discharge the sureties. Gillett v. Wiley, 126 Ill., 319; 9 Am. State, 587, note and cases cited.
    I see no reason why the plaintiff should not recover the cost and expense in undoing the fraud of the principal, and in securing an honest accounting.
    Judgment is ordered against the defendants for $3,509.74 and interest thereon from February 16, 1885 to April 8, 1889, and for $193.63 and interest from the same time, and for $72.50 and interest from June 9, 1885, to April 8, 1889, amounting to the time of- trial to the sum of $4,714.04, said judgment to be entered against the defendant, Peter Ferris, personally, and against the defendant Abbie A. Prouty as sole executrix of Rodney Sargent, •deceased, to be paid by due course of administration.
    Plaintiff is entitled to costs of this action with an additional allowance of five per cent, upon the amount of the recovery aforesaid.
    Judgment is ordered accordingly.

      Hand, Kellogg & Hale (Richard L. Hand, of counsel), for app’lts ; Corbin & Rowe (Royal Oorbin, of counsel), for resp’t.
   Herrick, J.

For the reasons set forth in the opinion of Mr. Justice Tappan in the court below, the judgment appealed from should be affirmed.

In addition to, but in harmony with, the views expressed by the trial court, the following suggestions are made. It seems to me that it was not necessary for the plaintiff to notify the sureties of the dishonesty of his guardian, in order to hold them to the obligation of their bond. They owed more than a passive duty; they should see to it that their principal discharged his duty; if they neglected it they did so at their peril. Forrester v. State, 46 Maryland, 161; Gillett v. Wiley, 126 Ill., 310, 327-8.

A guardian’s duty does not end as soon as his ward becomes of ■age; he must then make a settlement, with his ward, and honestly account and pay over what is coming to him, and the sureties are responsible that he does so. I cannot assent to the idea that because when the ward becomes of age he has legal capacity to act for himself that the sureties are no longer responsible for the transactions between himself and his guardian in settling the estate. One of the most important duties the guardian owes to his ward is an honest accounting and settlement with him, and that necessarily cannot take place until he is of age, and instead of being in any sense released by the transactions of the ward with his guardian, it seems to me it is just the time when, if ever, the ■sureties owe an active duty to see that their principal acts, as they have bound themselves he would act, as an honest man.

In my opinion the defendants are in a somewhat different position from an endorser upon a note, or a guarantor of a bond, or any surety who merely bonds himself to pay a sum of money or fulfill a contract if his principal does not. Here the sureties guarantee the fidelity and honesty .of the guardian; the obligation is-that the principal “ shall well and faithfully in all things discharge the duty of guardian ; ” if he fails in that they are responsible-for the damages the ward suffers through that lack of fidelity ; it is something more than warranting .his pecuniary responsibility, where if he does not comply with his contract to pay and the creditor by his delay suffers him to become impecunious so that the sureties cannot collect from him, the creditor by his loches has. placed the sureties in a position where they cannot make themselves good; here, as we have seen, the bond was for fidelity and honesty; acting promptly would not have made him honest; delay has not made him any more dishonest than he was-before.

Honesty and fidelity are the main things guaranteed; not pecuniary responsibility. But even upon the ground of delay, I do not see that the defendants have any sufficient reason to be released. -The delay caused by the legal proceedings cannot be considered on the question of loches. Laches can only be predicated upon the time that elapsed from the discovery of the fraud until the commencement of the suit against the principal.

No inflexible' rule can be laid down as to what constitutes; ■loches ; it depends upon the circumstances in each particular case. The evidence in this case is not before us, but it is fairly to be-inferred from the facts found that there were negotiations between the plaintiff and his guardian, and promises to pay by the guardian,, so that the plaintiff was kept in constant hope and expectation of.' a settlement; and. a part payment was made.

Plaintiff first became aware of the fraud in November, 1880, and immediately made demands upon his guardian for payment this was promised, but not fulfilled. In .February, 1882, a part payment was made, and no further payment being made, in October, 1882, he commenced his action against his former guardian. I do not think that the delay under all the circumstances constituted loches that would release the defendants.

There was no extension of the guardian’s time, or valid release-of him by the plaintiff, by which the plaintiff was prevented from, prosecuting him upon his obligation to make an account. The fraud practiced vitiated the whole proceeding and settlement, so-that it in no way acted as an extension of time or stay of proceedings. Lawman v. Yates, 37 N. Y., 601.

Mere indulgence or delay by the creditor to prosecute the principal debtor will not release the surety. Albany Dutch Church v. Vedder, 14 Wend., 165; Supervisors v. Otis, 62 N. Y., 88; Powers v. Silberstein, 108 id., 169; 13 St. Rep., 125; Howe Machine Co. v. Farrington, 82 N. Y., 121-131; Bostwick v. Van Voorhis, 91 id., 353.

The judgment should be affirmed, with costs and printing disbursements.

Putnam, J., concurs.

Matham, P. J.

(dissenting.)—This action was brought against-Peter Ferris and Eodney Sargent upon a bond executed by them and Grilletta Low as sureties for Edwin B. Low, upon his appointment as the general guardian of the plaintiff, William 0. Douglass, by the surrogate of Essex county.

The bond was dated on the 28th of March, 1872, and letters-of guardianship were issued to the guardian on the 29th day of March, 1872. The plaintiff arrived at the age of twenty-one years on the 26th day of March, 1879 ; on the 14th of May, 1879, after becoming twenty-one years of age, the plaintiff and his-guardian had a voluntary settlement or accounting, and settled and fixed the amount of the guardian’s liability to the plaintiff, on account of such guardianship at the sum of $4,363.10, and. the guardian thereupon paid to the plaintiff the sum of $1,163.10, leaving a balance due from the guardian to the plaintiff of the sum of $3,200, and in settlement or payment of that balance the guardian turned out to the plaintiff the promissory note of his insolvent brother, Charles W. Low, payable to the order of the-plaintiff March 1, 1881, with semi-annual interest, and a mortgage: on real estate in the state of Blinois executed by Charles W.. Low to the plaintiff to secure the payment of the same, which mortgage was falsely and fraudulently represented by the guardian to be good security for the same.

At the time of the consummation of the settlement plaintiff' gave to his attorney written authority to appear for him *before-the surrogate of Essex county and discharge the guardian from, all liability on account of such guardianship.

Pursuant to such settlement and authority, the guardian and attorney for the plaintiff so authorized and empowered by him,: without personal notice to the plaintiff, on the 12th day of’ January, 1880, appeared before such surrogate, and such proceedings were thereupon had by and before him that a decree of final judicial settlement and accounting of such guardian’s accounts was had, and the surrogate then and there, among other things, “ordered, adjudged and decreed that said account be, and the-same hereby is, finally settled as filed and adjusted, and it is-further adjudged and decreed that nothing remains in the hands of said guardian as such, or due from him to said ward.” The decree was duly entered of record on that day in the office of the surrogate. ■

The case shows that the real estate mortgage given as collateral to the note taken by plaintiff on the settlement was not adequate security for the note, and that the plaintiff discovered that he had been defrauded in the settlement with his guardian, and that the mortgage and note were not security for the amount found due the plaintiff on that settlement, and the plaintiff in ¡November, 1880, discovered that fact, and in February, 1882, the guardian seems to have conceded that fact, and then paid the plaintiff $800 on account of the $3,200, but failed "to pay the balance, and in October of that year the plaintiff commenced an action in the supreme court for the same against the guardian, alleging the guardianship, the settlement between the plaintiff and. guardian after plaintiff became of age, the amount. found due from the guardian, the giving of the note and mortgage in satisfaction of the same, the decree of the surrogate thereon discharging the guardian; alleging that the settlement was procured by fraud, and asking that the decree of the surrogate be vacated for fraud, and that the guardian be adjudged to pay the balance found due on the settlement. The defendant demurred to the ■complaint and judgment was given for the plaintiff on the demurrer, which was affirmed on appeal and judgment ordered against the guardian for the balance and costs.

To recover that balance and the cost of that litigation the plaintiff brought this action against the sureties on the guardian’s bond, and on the trial the plaintiff recovered judgment for the amount, the .$3,200 and interest from date of settlement, less the $800 paid by the guardian after that date, and also the plaintiff’s expense in action against the guardian, and the costs of this action, in all $5,555.22. _ .

_ The first and perhaps most important question raised by the appellant on this appeal is whether the sureties upon this bond are not discharged by the settlement of the plaintiff with the guardian, after arriving at his majority, ana accepting of the guardian, in satisfaction of his claim, the note and mortgage of Charles W. Low payable nearly two years after the date of such settlement, upon which a decree discharging the guardian was entered by the surrogate.

If the plaintiff by this settlement deprived the sureties of any •of their legal advantages in protecting themselves from the obligation they assumed as sureties on this bond, to their prejudice, it is difficult to see how he can in this action enforce its obligation against them for his own protection and to the prejudice of the sureties.

The capacity of the plaintiff to make a settlement with his guardian after becoming of age cannot be doubted, and it can hardly be claimed that the defendants by their bond undertook to protect the plaintiff from the consequences of his improvident -dealings with his guardian after he is clothed by law with authority to act for himself, in the absence of any collusion between the sureties and the principal in the bond, unless by its terms the sureties contracted to protect the obligee against the consequences of his acts after arriving at his majority.

The condition of this bond was. “ That if the above bounden fEdwin B. Low do and shall well and faithfully in all things discharge the duty of guardian to the above named minor, according to law, and render a just and true account of all moneys and property received by him, and of the application thereof, and of ■such guardian in all respects to and before any court having cognizance thereof when thereunto required, then this obligation to be void, otherwise to be and remain in full force and virtue.”

The obligation of the guardian was to account for all money and property, to and before any court having cognizance thereof, and that course would have afforded a complete protection to the ward, and to the sureties as well, and could at the time of making this voluntary settlement have been compelled by the plaintiff or the sureties on this bond.

The making of this voluntary settlement by the plaintiff with, his guardian, and the entering of a decree thereunder and in pursuance thereof, while the same was voidable for fraud, bound all the parties until rescinded ; and thus suspended the right of the" plaintiff and these sureties from any proceeding in court to compel an accounting by the guardian before the surrogate, as the decree entered in the matter was in that court, until vacated or reversed, a complete bar to any other proceeding in that court for an accounting. 126 N. Y., 193; 37 St. Rep., 1.

This settlement between plaintiff and his guardian was in May,. 1879. In November, 1880, plaintiff knew of the alleged fraud,, and waited until October, 1882, before he commenced his action against the guardian to set aside the accounting, and it does not appear that the defendants were apprised of any alleged fraud in the accounting or in the manner in which the balance found due the-plaintiff was paid or secured until September, 1885.

During all that time the defendants, so far as this case discloses,, had a right to rely upon the recorded decree of this surrogate,, that the guardian had performed his whole duty and was discharged from all liability to the plaintiff on account of such1 guardianship. The plaintiff having the power to make this settlement with his guardian, he, and he alone, had the power to rescind it for fraud, and the defendants in this action were powerless and unable to take any steps against their principal in this bond, so long as this settlement remained unrevoked. During the interval between the making of this settlement and the rescission or revocation of the same, the guardian, who was the. principal in this bond, became insolvent.

I am inclined to the opinion that this voluntary settlement with the guardian by the plaintiff so far affected the rights, powers andj privileges of the defendants as sureties on this bond as to release them from all obligations to the plaintiff thereunder.

By this settlement the right of the sureties to pay this balance to the plaintiff and sue the principal was clearly suspended during the period that this settlement and decree remained unrescinded and in force. This was such an interference-with the rights of the defendants as sureties on this bond, without their knowledge or notice to them, as to release them from-liability to the plaintiff. In Paine v. Jones, 76 N. Y., 278, Danforth, J., in discussing this subject, says : “The holder of the security had notice of the deed and its covenants, and was bound by this relation to do nothing to affect or alter rights of the surety. In Calvo v. Davies, 8 Hun, 222. the court says: 1 The-rule is absolute that there shall be no transaction with the principal debtor without acquainting the person who has a part interest-in it.’”

In Kane v. Cortesy et al., 100 N. Y., 132, it was held that the-defendants, sued upon a guarantee upon a bond and mortgage, were released from their obligation upon their guarantee by plaintiff’s acceptance of a chattel mortgage as additional security and. agreeing with mortgagor, without the consent of the guarantors, to extend, the time of payment of the bond and mortgage, and although the chattel mortgage contained the usual danger clause, .and authorized the mortgagee to foreclose it in’ case he deemed himself insecure, yet that did not defeat the operation of the extension of the real estate mortgage, and Earl, J. says: “ It gave no rights to the defendants as sureties for the debt, and they could not by virtue of that clause pay the real estate mortgage and take an assignment thereof and enforce the same before the extended time of payment had arrived. And as the extension of time was thus effectual against the sureties, it discharged them, notwithstanding the clause mentioned.” Kane v. Cortesy, 100 N. Y., 137.

In Calvo v. Davies, 73 N. Y., 216, Andrews, J., says: “And the doctrine that a surety is discharged by dealings between the creditor and principal debtor inconsistent with the rights of the surety has been applied, although the creditor did not know, in the origin of the transaction, that one of the parties was a surety."

In Brinagar’s Adm'r v. Phillips, 1 B. Mon., 283, Marshall, J., states the rule as follows: “ The plain principle to be deduced from the decisions is that the surety is released when by an agreement between the creditors and principal debtor, without his consent, his right to compel the creditor to the immediate coercion -of the debt from the principal, or, what is the same thing in effect, bis right to make immediate payment to the creditor, and in his name and right to coerce payment from the principal, is impaired.”

The rule seems universal, that when the surety is deprived by the act of the creditors and principal debtor, without his consent, ■of any right or remedy which he might otherwise have to protect himself from loss, he is thereby discharged from his liability to the creditor, and I find no case where that rule is relaxed by reason of fraud practiced upon the creditor by the principal debtor, when the creditor has voluntarily and without the consent or connivance of the surety entered into contracts or speculations with the principal debtor not expressly provided for in the bond and against which the surety has made no express guarantee.

The contract of a surety being strictissimi juris, it cannot be enlarged or changed without his consent. McCluskey v. Cromwell, 1 Kernan, 598. In Hancock Mutual Life Insurance Company v. Lowenberg, 120 N. Y., 44; 30 St. Rep., 268, the court says: “The rule is that a surety is entitled to a strict construction of the bond under which it is sought to make him liable, and that it cannot be enlarged by implication to cover anything which was not in contemplation of the parties at the time the bond was executed.” Bigelow v. Benton, 14 Barb., 123; Barns v. Barrow, 61 N.Y., 39; Schwartz v. Hyman, 107 id., 562; 12 St. Rep., 478. Applying this rule to the case at bar I do not see how the sureties on this bond can be held as liable for fraud practiced upon the plaintiff in transactions voluntarily entered into by him, not embraced in the provisions of the bond, and against which the bond furnishes no express guarantee.

The appellant also insists that the sureties on this bond are discharged by reason of the loches of the plaintiff in disaffirming „and repudiating this settlement for fraud after the discovery by him of its existence. If this settlement had not delayed the defendants in enforcing their remedy against the principal, then the ■defendants could not urge the plaintiff’s loches as an excuse for their failure to respond after the default of their principal, the bond would then be a continuous obligation, and the sureties would at any time be liable for default of the principal, until barred by some statute of limitation. But when by the act of the creditor [and principal debtor the sureties are delayed or hindered in their ability to protect themselves from loss, then the loches of the creditors to restore them to their original rights ■would furnish good grounds for their discharge.

In McMurray v. Noyes, 72 N. Y., 523, the guarantor of the mortgage was held to be released by the loches of the holder of the same in delaying foreclosure for fourteen months after the .same became due, when at the time of its maturity the property was good security, but before foreclosure it became worthless by ■destruction by fire, Craig v. Parkis, 40 N. Y., 181; Hancock v. Wilson, 46 Iowa, 352; Toles v. Adee, 91 N. Y., 562, and it had ■been held that long acquiesence by a ward in a settlement which was procured by the fraud of his guardian practiced upon him ■would relieve the sureties from liability. Aaron v. Mendel, 39 American Rep., 248.

If we are right in the above conclusion then there was no •breach of the bond as to the sureties. They had not covenanted to protect the plaintiff against the fraud practiced by Edwin B. Low upon the plaintiff in a transaction' between him and Low .after he had arrived at full age, and while such fraud might and ■did restore the liability of Low to the plaintiff growing out of that fraud, it did not, it seems to us, re-establish the liability of the ■sureties on his bond as guardian under the circumstances of this ■case, when, as we have seen, the plaintiff, by his own act and loches, had deprived the defendants of rights which they had, and ■could have maintained against their principal, but for the obstruction put in their way by the acts of the plaintiff without their knowledge or consent.

They assumed no such obligation in their bond and cannot be held liable in this action unless, as is insisted by the plaintiff, their liability is established in the action by the plaintiff against the guardian to which they were not parties, and in which they were in no way before the cqurt, or called upon to defend. In People v. Chalmers, 60 N. Y., 158, Church, Ch. J., says: “It is a familiar rule that sureties can only be charged when the case is brought within the very terms of their contract (5 Hill, 635), and that the obligation of sureties is not to be extended by construction, to embrace purposes and objects not contemplated by the parties.” It would be going too far, I think, to hold that the sureties when they signed this bond had in contemplation the protection. of the plaintiff against fraud practiced upon him when he voluntarily undertook to deal with his former guardian after he became-of age, and in the eye of the law stood upon an equality with him, especially when for years he carried on a contract with him without their knowledge and authority.

But it is insisted that the defendants cannot now be heard to-contest their liability in this action, as the judgment against their principal fixes their liability as sureties on this bond.

The general doctrine is that a decree against the principal liquidates and fixes the amount of his liability and affords prima facieevidence of the correctness of that amount in an action' against the sureties; but I find no case which goes to the length of holding that the liability of the surety is so fixed that he cannot defend, where he has a good and valid defense to his liability upon the bond, especially where he is not a party to the action or proceeding in which the amount of the liability of the principal is= settled.

In Annett v. Terry, 35 N. Y., 256, the court says: “It is true-that the decree is prima facie evidence of the amount due from Kerr, and its recovery on his admission arising from his default binds the sureties in the absence of fraud or collusion.” But this-case does not hold that the sureties are bound as to their liability on the bond, and concluded from making a defense to the same, if they have a valid defense thereto. In Harrison v. Clark, 87 N. Y., 576, the court says : “The sureties are bound because by their contract they are privy to the proceedings against their principal, and when the principal is concluded, they, in the absence of fraud or collusion, are concluded also.” But that case-did not arise when the sureties interposed an independent defense-to the bond upon the merits. It can hardly be claimed that the-defense of forgery of the names of the sureties, or their release by their principal, could not be set up*by the persons sued as sureties on the bond when the liability of the principal to the bond had been established in a separate action against him.

In the interlocutory judgment in the action by the plaintiff against his guardian these defendants were not before the court,, and none of the questions raised by them on this trial were or could have been raised on the trial of that demurrer.

The effect of overruling the demurrer in that case was that the allegations of the complaint as to that defendant were true; and judgment therefore went against him, establishing as to him the. truth of the allegations of the complaint.

In Girvin v. Hickman, 21 Hun, 318, cited by the respondent,, the court hold that the guardian and ward may settle the account as between themselves, and in that way dispense with an accounting.in court, and upon that subject the court uses this languager “ An accounting by the guardian serves to show the extent of his-liability, but it is not conclusive as to the sureties. If there is-anything wrong about it, they may show it in their own defense.”' It is true that where nothing has occurred that can operate as a release or discharge of the sureties, they may be deemed bound by a judgment, against the principal, because by their contract .they are deemed privies to the principal. Harrison v. Clark, 87 N. Y., 576. But this rule does not extend to cases where the .same would operate as a fraud upon the sureties, or subject them to liabilities from which they have been exonerated by the acts •of the obligee in the bond to which they have not assented. In this .respect I think this case clearly distinguishable from the case of Harrison v. Clark, supra.

I am, therefore, clearly of the opinion that the judgment in the notion against the guardian in this case does not conclude the •defendants in this action,If, as we have seen, they were discharged from their liability to the plaintiff by his voluntary acts or omissions, after he arrived at his majority.

That action does not assume in terms to adjudicate the liability of these defendants as sureties, and while, as we have seen, it • would under certain circumstances be prima facie, evidence of the •extent of the liability of the sureties on the bond, I do not think that it is binding upon them in this case. There are other questions in the' case raised by the appellant, one of which is as to ihe extent of the liability of the defendant Ferris, and of Prouty as the personal representative of Sargent, if the defendants are liable in this action. But from the view I have taken those questions need not be discussed here. For the reason above .-stated, I think there should be a new trial.

Judgment reversed, new trial granted, costs to abide the event.

Judgment affirmed, with costs and printing disbursements.


author: Putnam, J.

text:
    Marcus G. Cunningham, Resp’t, v. The Massena Springs & Fort Covington Railroad Company, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    1. Corporations—Verbal contract by officers—Ratification.
    Plaintiff brought an action to recover a balance due for constructing defendant’s railroad under a verbal contract made with defendant’s president and general manager, and which was afterwards reduced to writing ; the answer denied the making of the contract. Upon the trial it appeared that, after the making of the contract with defendant s president, ground was broken and the work commenced by plaintiff in the presence of a large number of defendant’s directors, and that its president then and there pointed him out as the contractor who was to build the road ; that defendant furnished him materials to use in the work, made payments thereon, and recognized him as a contractor by a resolution of its directors. Held, that the contract had been ratified by defendant.

      '2. Same—When defense of ultra vires not available.
    In an action against a corporation on a contract, it cannot avail itself of the defense of ultra vires where the contract has been in good faith fully performed by the other party, and it has had the benefit of the performance.
    Appeal from judgment in favor of plaintiff, entered upon report of referee.

      Walter J. Hears ( William P. Cantwell, pf counsel), for app’lt; • Malt. C. Ransom, for resp’t.
   Putnam, J.

Plaintiff brought this action to recover a balance •claimed to be due for constructing a portion of defendant’s railroad, under a verbal contract alleged to have been made with one Foster, president and general manager of defendant, and which, contract was afterwards in part reduced to writing. The case was-tried before a referee, who found in favor of the plaintiff. The defendant insists that the referee made various errors in his rulings in the course of the trial, and in his findings upon the facts- and law, for which the judgment should be reversed.

First. Defendant claims that the referee erred in finding that there was a valid contract entered into between the defendant,, through Foster, and plaintiff on the 23d of October, 1884, with the terms and conditions as stated in his report. That the evidence does not sustain such finding.

Plaintiff testified to the making of the contract with Foster. It, was shown by several witnesses, without objection, that Foster, who was president of the defendant, was also its general business-manager. After the contract it appears that in the presence of twelve or fifteen of the defendant’s directors ground was broken and the work was commenced by the plaintiff, and that Foster-then and there pointed him out as the contractor who was to-build the road. Plaintiff went on with the work in pursuance of the contract made with Foster, 'and the defendant not only furnished materials necessary to be used in said work, but made payments thereon to a large amount. The testimony indicates.that plaintiff under the contract with Foster performed the work with the knowledge and consent of defendant’s officers. lie was-also recognized as a contractor by a resolution passed at a meeting of defendant’s directors.

A corporation may become bound by a contract express or implied under the same circumstances as an individual. To make a corporation liable it is not necessary to show an express resolution passed at a meeting of its directors. Where a party does work or furnishes materials to a corporation under a contract with one assuming to act as its agent, to the knowledge of its officers, without dissent on the part of the corporation, it will be held to have ratified the contract and liable thereunder. Lee v. The Pittsburgh Coal & Mining Co., 56 How., 373; Wilson v. Kings Co. El. R. R. Co., 114 N. Y., 487; 24 St. Rep., 81; Howell v. The Joseph Edwards Dredging Co., 36 id., 803; Marine Bank of Buffalo v. The Butler Colliery Co., 23 id., 318; Martin v.Niagara Falls Paper Mfg. Co., 44 Hun, 137; 8 St. Rep., 265.

The evidence given in the case amply sustains the finding of the referee in the regard above mentioned. And also his finding that said contract was subsequently, and on or about January 21, 1886, partially reduced to writing.

Second. But the defendant says that although Foster might be-authorized to make a contract with the plaintiff to construct the road on defendant’s line, he was not authorized to contract for the building of a bridge and a piece o'f road beyond defendant’s line. That such a contract was ultra vires. Foster could not make it under the authority conferred upon him by defendant’s directors, and the defendant itself could only legally enter into-such an agreement.

It was shown on the trial that under the contract with Foster plaintiff built a pile bridge and a small piece of road adjoining, but beyond defendant’s line. It also appears, and the referee found, that plaintiff, while constructing said bridge and piece of road, supposed it to be a part of defendant’s line and did the work in good faith. Defendant furnished a large part of the materials for the bridge, and made payments thereon, and had the benefit of the bridge and road. Defendant so furnished materials and made payments on the bridge to the amount of $1,857.49. The referee made no allowance to plaintiff for work on said bridge over said payments. Practically he determined that plaintiff built the bridge and defendant paid for it. Whether the contract with Foster to build the bridge and the small piece of road at the end of and beyond defendant’s line was or was not beyond defendant’s power, having been executed by plaintiff in good faith and the bridge and piece of road having gone into defendant’s possession, the plea of ultra vires ■ cannot be sustained. ‘‘A corporation cannot avail itself of the defense of ultra vires where the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance of the contract.” Whitney Arms Co. v. Barlow, 63 N. Y., 70; Bissell v. The Mich. S. & N. I. R. R. Cos., 22 id., 259; Woodruff v. Erie R. R. Co., 93 id., 618; The Rider Life Raft Co. v. Roach, 97 id., 381.

Were it otherwise, however, if plaintiff could net enforce the contract as to the bridge, because beyond the power of defendant to make it, yet defendant having paid $1,857.49 on the illegal contract could not recover said sum of the plaintiff. See Knowlton v. Congress & Empire Spring Co., 57 N. Y., 531-2; Nellis v. Clark, 4 Hill, 424. “ Ho case can be found where, when money has been actually paid by one of the parties to the other upon an illegal contract, both being pariiceps criminis, an action has been maintained to recover it back again.”

Hence if it were the fact that for want of power to make the contract on the part of defendant plaintiff could not recover a part of the sum allowed by the referee, it would only be the amount allowed for the small part of defendant’s road between the bridge and defendant’s line,; two or three hundred dollars.

For the reasons above stated, however, I think plaintiff was entitled to recover the value of his work upon the bridge, and also upon this small piece of road.

Third. The claim of defendant’s that plaintiff cannot recover in the action because he abandoned the work and failed to fully perform the contract is not sustained by the evidence. There was evidence given in the case which justified the finding of the referee that the plaintiff ceased work at the suggestion of defendant’s president and manager that there was no money to go on with, and that as soon as defendant collected the money for that purpose plaintiff would be informed; that plaintiff was always ready and willing to continue the work, but never received any such notice.

. Also, the evidence is clear that defendant could not meet the payments as provided in the contract and failed to pay plaintiff according to its terms and for that reason plaintiff could properly refuse to continue the work. Strack v. Hurd, 41 St. Rep., 777.

It is insisted by defendant that the referee erred in not allowing defendant four items of credit amounting to $1,079.97 which it claimed were established by the evidence on the trial. I will not undertake to discuss the testimony given in regard to those items, but I have read and considered it all carefully. There was conflicting evidence given in the case as to the said items, and I think the findings of the able and experienced referee on the questions of fact submitted to him should not be disturbed. The same may be said as to the item for work on the abandoned line ” and the item for plaintiff’s services.

It is suggested that the referee erred in overruling the objections to the introduction of the memorandum made by Shanly. Shanly testified that as the work progressed he measured it from time to time and when finished made a memorandum of the whole work done. He did not remember independently of the memorandum. That it was correct. I think under well settled rules the memorandum was properly received in evidence. Wilson v. Kings Co. El. R. R. Co., 114 N. Y., 498; 24 St. Rep., 81.

Paper “A” was also competent evidence. It was properly received as tending to show that defendant through Shanly, its employee, took charge and control of the pile bridge in question and finished the same. The defense of ultra vires asserted by defendant upon the trial and the claim of the lack of authority of Foster to make the contract with plaintiff rendered this evidence proper.

The evidence of plaintiff of his conversation with Foster, about where the work began, and about the bridge, etc., was also properly received by the referee. Although there was a written contract between the parties, the writing only contained part of the contract, and hence the conversation between the plaintiff and Foster was competent. I also think that the referee did not err in overruling the objections to that part of plaintiff’s evidence detailing what occurred at a meeting when work was commenced on the road by plaintiff. At that meeting a large number of defendant’s directors were present. The question was raised on the trial as to Foster’s authority to contract with plaintiff. Foster in the presence of defendant’s directors pointed out the plaintiff as the contractor who was to do the work of the road. The work was commenced at this time in the presence of Foster and defendant’s directors and of plaintiff. The evidence tended to show the knowledge and assent of defendant’s officers to the contract made by Foster with plaintiff.

' There are various other exceptions made by defendant to rulings of the referee on the trial, and to his findings, which I do not deem it necessary to discuss here. I have examined them all with care, and am unable to find any exception xdhich, in my judgment, requires discussion or which should lead to a reversal of the judgment

íhe questions involved in the case are mostly those of fact. I think the findings of the learned referee should stand, and that the judgment should be affirmed, with costs.

Mayiiam, P. J., and Herricic, J., concur.


text:
    Fred. A. Bratt, Resp’t, v. James T. Scott and Samuel C. Scott, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    1. Attorney and client—Action for services—Evidence of retainer.
    In an action brought by an attorney to recover for services rendered in two actions, it appeared that plaintiff was not the attorney of record, but acted as local counsel; that he was employed by the attorney of record; that after the services were performed and bill rendered, defendant told plaintiff that Mr. C., the attorney of record, had the matter entirely in his charge, and on C.’s saying that the work had been done, and plaintiff ought to be paid, promised to. fix it up. Held, sufficient to establish the retainer óf plaintiff.
    2. Same—Estoppel—Acceptance of check.
    In such case plaintiff is not estopped by his having accepted and used a check for §85 sent him by C. with a letter which “ hopes it will be entirely satisfactory.”
    3. Same—Bill rendered not conclusive of value of services.
    The-fact that plaintiff had rendered defendant a bill of §50 for his services does not prevent his recovery in an action of a larger sum, if the services are shown to be of greater value than stated in the bill.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.

      George Carlton Comstock {Myer Nusbaum, of counsel), for app’lts; Fred. A Bratt, in person, for resp’t.
   Putnam, J.

This action was brought by plaintiff to recover for services performed for defendants between November 11, 1886, and September 1, 1889. He was employed by Mr. Corn-stock, the attorney of defendants, as local counsel, and one question raised on the trial was as to the authority of Mr. Comstock,

Plaintiff testified that after the services were performed he had. an interview with Mr. Scott, one of the defendants, at which he (plaintiff) made a claim for compensation. Defendant then said that Mr. Comstock had full management of the case; he was their representative. They had left the matter entirely to him, and on a subsequent interview, Mr. Comstock being present amt stating to Mr. Scott, the defendant, that plaintiff had performed services and ought to be paid, defendant promised to fix the matter up ; this conversation, in which defendant did not deny the authority of Mr. Comstock to employ plaintiff, but impliedly admitted it, could properly be deemed by the referee as an admission not only of Comstock’s authority to employ the plaintiff, but also as a subsequent ratification of his acts in making such employment if originally unauthorized. Harnett v. Garvey, 4 Jones & Spencer, 326; Keeler v. Salisbury, 33 N. Y., 648, and spe Foland v. Dayton, 20 W. Dig., 59. Defendant Scott at that time knew that Comstock had assumed to employ plaintiff as-local counsel, and in what actions he had been employed. He-was also informed that plaintiff had performed legal services on such retainers. Plaintiff had prior to this time sent in a bill to defendants for the services performed. Scott was, therefore, sufficiently in possession of the facts of the case to enable him to ratify the acts pf Comstock. Hence, the retainer of plaintiff was sufficiently proven.

The' check of thirty-five dollars sent by Comstock to plaintiff and which the latter received and used does not estop plaintiff from maintaining the action. The cases cited by appellants, Hills v. Sommer, 53 Hun, 392; 25 St. Rep., 1003; Looby v. Village of West Troy, 24 Hun, 78; Palmerton v. Huxford, 4 Denio, 166, were each cases of accord and satisfaction where there was a genuine dispute between the parties as to the claim, and a sum paid in settlement. Those cases do not apply here; they do not apply where a sum is paid on an unliquidated account, there being no real controversy as to the amount of the claim, even in cases where a receipt in full is exacted and given. The distinction between the two classes of cases is mentioned in Palmerton v. Huxford, supra, and see Ryan v. Ward, 48 N. Y., 204. In this case on September 14, 1889, when Mr. Comstock sent his letter and check of thirty-five dollars to plaintiff it does not appear that there was any controversy as to the amounf due plaintiff. Plaintiff’s account was not disputed. Comstock sent thirty-five dollars. He did not claim or insist that that sum was a full payment of plaintiff’s real claim. He “ hopes it will be satisfactory.’ If he had said in his letter your services-are not worth more than thirty-five [dollars, and defendant will not pay more than that sum and you must receive the enclosed check in full,- the case would have been different. The letter in question indicates that Comstock deemed that plaintiff’s services were worth,over thirty-five dollars, but he ought, under the circumstances, accept a sum less than the value thereof. He does not say that plaintiff must accept thirty-five dollars in full, but hopes he will. Under the circumstances the payment did not prevent plaintiff from maintaining the action.

The serious question in the case is as to the amount of plaintiff’s recovery. Two letters of Mr. Bratt’s are in evidence. In one he mentions having sent a bill to defendant for fifty dollars for the services in question. In the other he states that he considers his services for defendants worth fifty dollars. These letters were evidence of the value put by plaintiff upon his own services prior to any litigation. It is an admission upon his part of such value clearly proved by his letters, and, under the circumstances, strong evidence of the real value. I should be better satisfied with the result if the referee had determined the value of plaintiff’s services at the sum so fixed by him in the letters prior to the litigation between the parties, rather than $200.

But an attorney after a litigation in which his clients have not been fortunate may be willing to accept and' to make out a bill for a much less sum than the real value of his services; and if he is compelled afterwards to commence an action to recover his compensation he may incline to and be justified in claiming the full value.

In this case both the plaintiff and another attorney, a Mr. Bascom, testified that the value of plaintiff’s services for which the action is brought exceeds $200. JSTo witnesses were sworn on the part of the defendants on the question of value. Therefore, the only evidence before the referee on this question was the testimony of the two witnesses above mentioned and the admission contained in plaintiff’s own letters.

The referee might have determined that the letters stated the true sum plaintiff was entitled to recover, relying upon them rather than upon the testimony as to the value given upon the trial. But he, an able and experienced lawyer, on sufficient evidence, reached another conclusion, and determined that plaintiff’s services performed for defendants were of the value of $200. We cannot say that the finding of the referee is unsupported by the evidence and reverse the judgment for that reason. There being sufficient evidence to support the finding, it should not be disturbed. Roosa v. Smith, 17 Hun, 138.

It has been decided that the presentation of a bill for a certain amount does not prevent the recovery of a larger sum if the services can be shown of greater value than stated in the bill. Harrison v. Ayers, 18 Hun, 336; Williams v. Glenny, 16 N. Y., 389; Sherwood v. Hauser, 94 id., 626-628; Stryker v. Cassidy, 76 id., 54.

In Williams v Glenny, supra, p. 392, the bill rendered was $150, and the recovery $500, and the court remarked : “ The defendant gave in evidence the bill rendered by plaintiff, in which the services were charged at $150, and insisted before the referee that the plaintiff could recover only that sum for the services. The referee decided otherwise, and defendant excepted. The. plaintiff’s own estimate of the value of his services was high evidence against himself, and no doubt had its due weight given to it by the referee, but it was not in the nature of an estoppel to preclude the truth. Had the defendant paid the bill when presented, it would have been an accord and satisfaction of the services, although less than their real value. But the defendant chose to litigate, and the question of value of the services was open to proof as a question of fact.”

The judgment must be affirmed, with costs.

Herrick, J., concurs.


author: Mayham, P. J.

text:
    In the Matter of the Final Judicial Settlement of the Accounts of the Executors of the Last Will and Testament of James McClure, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    Will—Construction .
    The provisions of testator’s will over which the controversy arose were : “ I give and bequeath unto my beloved wife, M., all my real estate owned by me of every name and description, also all my personal property of every kind and nature, also my life insurance, stocks and mortgages to have and to hold, ‘with full power to collect all rents and income from the same, she to keep in repair, and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executor, should it be thought best for the estate; should she marry again, then her right of dower only in my estate. I also give her discretionary power to give such sums of money to any, as she may think proper, of my relatives.” Held, that testator’s widow took only a life’s estate.
    This is an appeal from the decree of the surrogate of Albany county, made on the final judicial settlement of the executors of the will of James McClure, deceased.
    The appeal is prosecuted by five infant heirs-at-law and next of kin of the deceased, individually, and Francis H. Woods as their special guardian.

      Francis H. Woods, for app’lts; George H. Stevens, for resp’t.
   Mayham, P. J.

The testator made the will in question on the 9th day of November, 1888, and died on the 11th of October, 1889, at the age of seventy-five years, leaving him surviving his ■widow, the respondent on this appeal, and three children of full age and five grandchildren who were the children of two deceased sons of testator, all of whom are infants, and the appellants on this appeal.

The deceased left real estate valued at about $96,000 and personal property valued at about $68,000. The will was drawn by the testator in his owti hand-writing, and in it he nominated and appointed his wife as executrix and W. Frothingham as executor, both of whom qualified and entered upon their duties as such, at the time the will was admitted to probate. No mention is made in the will of the children or grandchildren of the testator, and the sole beneficiary named therein is the wife of the testator.

On the application of the executors for a final judicial settlement before the surrogate, the appellants filed an answer to their petition alleging that the true interpretation and legal effect of the will of James McClure are doubtful, in that it does not clearly appear from said will whether the testator intended thereby that his widow should take a life estate in the personal property therein disposed of, or whether he intended thereby that she should take the property absolutely.

Upon the issue thus made the question was litigated before the surrogate, who, among other things, adjudged and determined that under the will the title to all the personal property of which the testator died seized and possessed was vested in and belonged to his widow absolutely, and decreed that it be transferred to her after deducting therefrom the legal expenses of the executor and executrix and the expense of the accounting.

From this determination and decree of the surrogate the appellants appeal. On the part of the appellants it is insisted that the whole will taken together and read, and construed in the light of surrounding circumstances, clearly establishes the intention of the testator to give to his widow only a life estate in both his real and personal property.

On the part of the respondent it is contended that by the clear and unequivocal language of the will the testator devised and bequeathed all of his estate real and personal to his widow absolutely.

The main and only question raised on this appeal is as to the true intent and meaning of the testator in and by his will. Did he give only a life estate to his widow, and die intestate as to the remainder after her death, or her marriage, or did he devise and bequeath all of his estate, real and personal, to his widow in fee and absolutely ?

The provisions ■ of the will over which the controversy arises are as follows : “ First —After all my lawful debts are paid and discharged, I give and bequeath unto my beloved wife, Mary I. McClure, all my real estate owned by me of every name and description, also all my personal property of every kind and nature, also my life insurance, stocks and mortgages, to have and to hold, with full power to collect all rents and income from the Same, she to keep in repair, and pay all taxes and insurance on the same, with full power to sell any or all such real estate, with the consent of my executor, should it be thought best for the estate; should she marry again, then her right of dower only in my estate.

“ I recommend she appoint a good agent to take charge of my estate. I also give her discretionary power to give such sums of money to any, as she may think proper, of my relatives.”

It is a cardinal principle in the construction of wills that the intention of the testator must control9 if ascertainable from the will itself, when the language of the will is clear and free from ambiguity or repugnance ; but if not free from abiguity or repugnance, effect is to be given, if possible, to all of its provisions, and no clause is to be rejected or interest intended to be given sacrificed on the ground of repugnance when it is possible to reconcile the provisions which seem to be in conflict.

Tested by this rule it becomes necessary to inquire whether there is anything in this w'ill which is inconsistent with the theory of an absolute devise and bequest of all of this property, real and personal, to the respondent.

One of the essential qualities of an absolute devise and bequest is the complete and absolute power of voluntary disposition of the property so devised and bequeathed by the devisee and legatee ; but if the devise or bequest is absolute so as to convey the absolute title to the devisee or legatee, and a condition is annexed in restraint of alienation, the condition is sometimes held repugnant to the grant and void. In this case it seems to be conceded by the appellants that the language employed by the testator at the commencement of his will would, if not qualified or restricted by the subsequent provisions, vest in the respondent the absolute title to the entire estate.

The language as to which this concession is made is as follows : “ I give and bequeath to my beloved wife, Mary I. McClure, all my real estate owned by me of every name and. description, also all my personal property of every kind'and nature, also my life insurance, stocks and mortgages.”

But it is insisted that this language and its effects are qualified by the provisions which follow, and that such qualifying language explains the meaning of the preceding part of the instrument, and is not repugnant to it; and, when read as a whole and construed in reference to the circumstances of the testator and the natural objects of his bounty, proves that his intention was to vest in the widow only a life estate. It is quite apparent from the provisions of • this will that the testator intended its provisions to operate alike on his real and personal estate; and in determining whether the bequest of the personal estate was absolute, we maj' look at all the provisions of the will relating to both the real and personal property.

Looking at the will as a whole, we are to endeavor to so construe it as to give effect to all of its provisions. In Taggart et al. v. Murray et al., 53 N. Y., 236, Andrews, J., lays down this general rule: “ But in the construction of wills, as of other written instruments, the intention is to be ascertained by the consideration of the whole instrument, and the construction is not to be made upon a single or- isolated clause detached from its relation to those with which it is associated. If ■ on a comparison of the different provisions of the will it is found to contain dispositions which are repugnant to each other, then it is the office of judicial interpretation to preserve, if consistent with the rules of lays', the paramount intention of the testator as disclosed by the instrument, although in so doing it may defeat his purpose in some subordinate or less essential particular.

“ It is, however, a primary rule in the construction of wills that effect is to be given, if possible, to all its provisions, and no clause is to be rejected and no interest intended to be given is to be sacrificed on the ground of repugnancy when it is possible to reconcile the provisions supposed to be in conflict. In accordance with this rule, it is held that subsequent clauses in a will are not incompatible with, or repugnant to, prior clauses in the same instrument, when they may take effect as qualifications of the latter without defeating the intention of the testator.”

In Norris v. Beyea, 13 N. Y., 284, Denio, J., says: “But there is no repugnancy in a general bequest or devise to one person in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event the estate thus given should be diverted or go over to another person. The latter clause in such case limits and controls the former, and when they are read together, it is apparent that the general terms which ordinarily convey the whole property are to be understood in a qualified and not absolute sense.”

But in the cases cited, and others of a similar character which might be cited, the testator by the will disposed of the property to some other legatee or devisee after the happening or failure of the contingency upon which the right of the first takers depended.

In the case at bar, if it be held that the respondent takes only a life estate under this will, then as to the remainder the testator died intestate. ' .

While it is true that where a testator makes a will assuming to dispose of his property, the law does not favor intestacy, and the presumption is that he intends to dispose of all of his property, yet that presumption may be overcome, and does not prevail where by the terms of the will it is apparent that the testator intended that his estate should ultimately be disposed of under the laws of distribution and descent.

In this case it seems that the testator by his will imposed conditions upon his property, and its future occupancy and control by his widow, inconsistent with an an absolute estate in her, and entirely in harmony with the estate for life.

Tiie express authority to collect rents given in the will, while it is not inconsistent with an estate in fee, was wholly unnecessary if the testator intended by his will to vest in his widow the title in fee, but is entireíy consistent with the beneficial enjoyment by the life tenant.

Again, the direction in the will that testator’s widow shall keep in repair and pay the taxes and insurance on the property is imposing an obligation on her inconsistent with the idea of absolute title in her, and entirely in harmony with the theory -of a life estate.

If the testator intended to preserve this estate for the benefit of his heir and next of kin he might properly impose upon the life tenant the duty of preventing it from sale for taxes, and its protection from destruction by fire, and decay by the ravages of time. But no such obligation could be imposed by a grantor or devisor upon the owner of an estate in fee.

Again, if his widow should marry again, her estate by the terms of the will would be cut down to her dower interest, and in that event clearly as to the real estate the testator would die intestate, .and must have so intended, as that would be the clear legal effect -of the will.

Again, the limitation imposed by the will upon her power of sale of the real estate is not in harmony and cannot be reconciled with the idea of an absolute estate in her in fee simple. She can only sell with the consent of her co-executor.

There must be a concurrence and consent by the executors before she can alienate this property. The testator could impose -no such restraint upon alienation if she had the title in fee. But he had the power to impose such restrictions upon alienation when the right to sell was derived from the power of sale in the will, and in that case it was clearly in the power of the testator to require a concurrence of both executors, and when such restrictions are imposed in the power of sale it can only be exercised according to the delegated power. Hyatt, Ex'r, v. Aguero, 14 Civ. Pro., 286; 17 St. Rep., 746.

Again, the provision of the will wherein he says: “I also ■give her discretionary power to give such sums of money to any, .as she may think prudent, of my relatives.” ■ If this was an absolute bequest of all of his personal estate to his wife, and so intended and understood by the testator, he would not have attempted to impose a restraint upon her of making his relatives the sole object of her gratuities. The authority to sell the real estate with the consent of the executor and to make gifts to his relatives necessarily excludes by legal implication the power to sell without such consent, or give personal property except to his relatives.

The maxim expressio unius est exclusio alterius applies to these provisions. All of these qualifications and exceptions are consistent with the testator’s intent to create a life estate in all of his property in his widow, and may, within the rules of interpretation above referred to, operate as qualifications of the language of the provision first employed in it, but if we give that language the: force of an absolute bequest of the personal and devise in fee of the realty, then we must treat these latter provisions as repugnant, in violation of the rule we have quoted from Taggart v. Murray, supra, that 'in the construction of a will, effect is to be given, if possible, to all its provisions, and no clause is to be rejected on-the ground of repugnancy, when it is possible to reconcile the provisions which are supposed to be in conflict. We think the case differs essentially from Clarke v. Leupp, 88 N. Y., 230. In this case, the will imposed no condition on devisee and legatee in the-use or disposition of the property to whom she pleased, and without the consent of any co-executor or any other person.

So in Campbell v. Beaumont, 91 N. Y., 467, the court held that the devise and bequests were absolute to the wife, without any words of qualification, and that the request that the remainder-should be preserved for his step-son did not divest the widow of her absolute estate.

But the will contained no such restraints and qualifications as-are found in the will under consideration, and the case is therefore distinguishable from this. So in Lawrence v. Cooke, 104 N. Y., 636; 6 St. Rep. 772, the will contained an absolute and unconditional devise under which the title passed to the devisee without any charge upon it except in the discretion of the devisee, but contained no condition by which the estate of the devisee could be lessened or impaired, and no restraint on the alienation of the same by the devisee, and seems therefore to be clearly distinguishable from the case at bar.

Nor do I find any case cited by the learned counsel for the-respondent upon this point which is not distinguishable upon; principle from the one under consideration.

The case of Van Horne, Ex'r, v. Campbell, 100 N. Y., 287, holds that an absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate. But we have seen that the will under considation in this case does not give the devisee an absolute power of disposition. The right to dispose of this real estate depends upon the volition of the two executors and is not an absolute power in the devisee or in her as executrix without the concurrence of her co-executor. Nor has she the power of absolute disposition of the personal property. The will confines her in the disposition of it to the relatives oE the testator.

And the rule is the same as to the bequests of personal property as it is to devises of real estate. Van Horne v. Campbell, supra. In the case last cited the authorities are examined at. great length, and the distinction carefully noted between an absolute devise or bequest when the first taker acquires under the will an absolute estate, not capable of being defeated by an execu^ tory devise over which is repugnant to the first devise, and the cases where such subsequent provision qualifies, limits or controls the first provision, and the rule seems settled that when the will gives the devisee or legatee unrestrained power of disposition, the title is absolute, but where there is a restriction upon the power of alienation, or disposition, the title is qualified and may be bound or controlled by the subsequent provisions of the will Applying that rule to the will under consideration and looking as we may at the circumstances and surroundings of the testator, the amount of the annual income of the estate, the age of the respondent, and the children and grandchildren of the testator, all of which circumstances and surroundings may be taken into consideration as circumstances reflecting some light upon the question •of the intention of- the testator in making this will, we are inclined to the opinion that the respondent took under this will only a life estate, with a qualified power of sale of the real estate .and a limited right of disposition of the personal property or a portion of the same in accordance with the provisions of the will

The decree of the surrogate must, therefore, be reversed, and •the case remitted to the surrogate, to make a decree in accordance with the provisions of the will as determined on this appeal, with •costs to the appellant out of the estate.

Putnam, J., concurs; Herrick, J., not voting..


text:
    Hannah Lawless, Resp’t, v. The City of Troy, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    Municipal corporations—Negligence—Evidence.
    In. an action against a city for damages for injuries caused by falling on a slippery sidewalk, it appeared that the sidewalk had been covered "with ice for some weeks prior to the accident, and was rough and uneven therefrom ; that on the evening of the accident it commenced snowing between six and seven o’clock, and by eight o’clock, the time when the accident occurred, two inches had fallen. Plaintiff testified that she slipped on the ice and. again that she slipped on the snow. The jury rendered a verdict for plaintiff. Held, that, the verdict was not sustained by the evidence, and must be reversed.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover damages for personal injuries alleged to have been caused by defendant’s negligence.

      William J. Boche, for app’lt; J. A. Cipperly, for resp’t.
   Herrick, J.

On the 5tli day of March, 1887, the plaintiff, while walking along South street in the city of Troy, slipped and fell, and sustained injuries for which she brings this action.

It appears that at that portion of the street where she fell the ■grade is very steep, and it is alleged by her, and there is evidence to sustain it, although there is a conflict upon that subject, that-the sidewalk at that point had been covered with ice for some weeks prior to the accident, and that the sidewalk was rough and ■uneven therefrom.

The plaintiff lived a short listance from the place in question and was accustomed to pass over it daily to visit the home of her parents, the place of the accident being between her residence and that of her parents. On the evening in question it commenced snowing between six and seven o’clock; by'eight o’clock about two-inches of snow had fallen, covering the sidewalk.

■The plaintiff left her house between seven and eight o’clock in. the evening to visit her parents; passed over the place in safety; it was snowing at the time; staid with her parents about half an hour; started for home shortly before, or about, eight o’clock and when a short distance from her parents, met with the accident for which this action is brought.

If the sidewalk was covered with ice the length of time prior to the accident claimed by the plaintiff the jury would have been justified in finding the city negligent in that respect, but. that is not sufficient of itself to make the city liable to the plaintiff; that neglect must have caused the injury, or at least have-been a concurring cause without which it would not have-happened.

The grade of the street is steep, by no fault of the city; snow had fallen that evening prior to and at the time of the accident; it is unnecessary to cite authorities to show that the city was not-responsible for accidents resulting from a fall of snow so recent.

Unless the old ice was a concurring cause of the accident, without which it would not have happened, the city is not liable. How can the jury tell which caused the accident, whether it was the snow alone, or whether it was a concurring cause, or how can they tell that the ice underneath the snow, an inch or more, was a concurring cause without which the accident would not have happened; that if the snow alone had been on that steep grade the plaintiff would not have fallen.

The jury can simply guess as to what caused the accident and that is not permissible. Johnson v. Glens Falls, 41 St. Rep., 820. The plaintiff herself testified that she slipped on the snow. If she is right in that, the city is not liable.

Judgment should be reversed, new trial granted, costs to abide, event.

Putnam, J. At the place where plaintiff fell there was no-special ridge or bunch, but a quantity of rough, uneven ice. Probably the jury could find the city negligent in suffering this ice to remain. Masters v. Troy, 50 Hun, 485; 20 St. Rep., 273. Plaintiff might recover notwithstanding the new fall of snow.. In Pomfrey v. Saratoga Springs, 104 N. Y., 460; 5 St. Rep., 802, there was a light covering of snow over the ice, and also in Masters v. Troy, supra. But plaintiff was bound to show that the old ice caused her fall or was a concurring cause. Taylor v. Yonkers, 105 N. Y., 208; 7 St. Eep., 332. If the evidence was-such that it was impossible to determine which caused the accident, the old ice or the new snow, plaintiff cannot recover. This,, I think, is the difficulty about the plaintiff’s case. She testified that she slipped on the ice, and again that she slipped on the-snow. It was a steep grade. There was about two inches of new: snow. The testimony in the case is such that it cannot be determined whether the old ice caused the accident or the new snow. Hence the verdict of the jury was not sustained by the evidence, I therefore concur with Judge Herrick.

Mayham, P. J., concurs.


text:
    The People, Resp’ts, v. John H. Phelps, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed April 4, 1892.)

    Appeal—Reversal on questions op law.
    The decision of this case by this court, 39 St. Rep., 598, was upon questions of law only.
    Motion to amend the order of the general term, nunc pro tune? so as to show that the judgment and conviction was reversed and a new trial ordered on questions of law only. See 39 St. Rep., 598.

      C. A. Kellogg, for motion ; V. P. Abbott, opposed.
   Mayham, P. J.

We do not think, under the circumstances of. this case, that the district attorney has been guilty of such loches in moving, as to preclude the making of this motion, or justify the court in refusing to grant the relief asked on that ground. The principal question, therefore, to be considered, is whether the general term in reversing this conviction did so upon the exercise of its discretion upon the facts, or whether its decision was upon the questions of law onljn

We think from an examination of the opinion of the learned presiding judge, which was concurred in by his associates, that the case was disposed of by the general term entirely upon questions of law, and that the court refused to reverse on questions of fact It is-true the judge refers to the disputed questions of fact upon the trial, but concludes his discussion of the same in these words: “ There was a sharp conflict as to the facts, which we need not discuss.” He then proceeds as follows: “ The important question raised in this case, is whether the word ‘ advised ’ does or does not imply that the advice must be followed in order to constitute the-crime. All other words in the section in a similar position include some other act other than mere speech. Such as 1 prescribes,’ 1 supplies,’ 1 administers,’ 1 uses or causes to be used.’ And when the word 1 advises ’ is used the connection is 1 advises or causes a woman to take. ’ ”

The learned judge then proceeds to discuss at some length the provisions of § 294 of the Penal Code, and the other sections bearing upon the same subject, in connection with the charge in the indictment, and concludes his opinion as follows: “We are-of opinion that mere advice to take medicine when no medicine, drug or substance of any kind is taken, and when, therefore, no-injury has been done to any one, cannot be the crime of abortion.” From this examination of the opinion it seems clear that the judgment and conviction were reversed upon questions of law only», and that the order should be so amended as to show that fact

Let the order heretofore entered be vacated and the order submitted on this motion be entered nunc pro tune and stand as the -order of the general term on this appeal.

Putnam and Herrick, JJ., concur.


author: Per Curiam.

text:
    The St. Lawrence Wholesale Grocery Co., App’lt, v. Howard H. Hobson, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 5, 1892.)

    .Appeal—General term has exclusive control op its calendar.
    The general term has exclusive control of its own calendar and will not tolerate any interference therewith. Attorneys who desire to stay proceedings thereon or to defer argument must apply to the general term and not to single justices of the court.
    Motion to vacate order of special term staying argument on an ¿appeal and putting same over the term.

      O. S. Dorwin, for app’lt; Me 0 lary & Paddock, for resp’t.
   Per Curiam.

An appeal has been taken in the above entitled action to this court; such appeal is regularly upon the calen>dar, and noticed for argument at this term.

An application has been made to a special term at chambers, ,and an order granted staying the argument upon appeal, and putting the same over until the next term of this court, a copy of 'the order served upon the clerk of this court, and upon the attorneys for the adverse party. Such practice cannot be tolerated.

Attorneys practicing in this court and having cases upon.its ■calendar, if they desire to stay proceedings therein, or to defer •arguments thereon, or to have the same put over the term, must apply to the general term and not to single justices of the --court.

It is necessary for the orderly transaction of its business that the court should retain exclusive control of its own calendar, and it cannot tolerate any interference therewith, and attorneys must not apply elsewhere for any relief desired by them as to the disposition of any case pending therein upon appeal; and when by inadvertence or oversight any judge has granted an order interfering with the argument or disposition of a case on the calendar of this court, such order will be disregarded.

The special term order herein referred to is hereby vacated, and set aside, and the case will be disposed of when reached inks regular order upon the calendar.

Mayham, P. J., Putnam and Herrick, JJ., concur.