author: Davis, P. J.: Beady, J.

text:
    JAMES DUNPHY, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Board of supervisors of New York — power to appoint deputy clerk — appropriation for payment of.

    The hoard oí supervisors of the county of New York appointed, in 1860, a deputy to their clerk, and in 1864 fixed his salary at $4,000 per year, appropriations for the payment of which were made by the legislature in each year from 1860 to 1870. Chapter 190 of 1870, creating a new board of supervisors, provided that all officers and subordinates of the existing board holding office or place therein, should continue in their respective offices and places, subject to removal for misconduct and authorized the new board to fill vacancies. Held, that although there was no statute authorizing the old board to appoint a deputy clerk, yet the acts of the legislature annually appropriating money for the payment of his salary, and the act of 1870, conferred such authority upon the new board.
    The plaintiff was appointed first deputy clerk of the board in January, 1872, and continued to perform the duties of his office until May, 1878. No appropriation for the payment of his salary was made by the board of apportionment, created by chapter 583 of 1871, for the year 1872 and the first four months of 1873. In this action, brought by the plaintiff to recover the amount of his salary for this period, the defendant insisted that the absence of an appropriation for its payment relieved it from all liability under section 5 of chapter 583 of 1871, providing that no liability should be incurred by the officers of the county, for any purpose whatsoever, exceeding the amount of the appropriation made for that purpose. Held, that as the duration of the plaintiff’s office was not prescribed by law, and as the board had power to terminate the same, its action in continuing to employ him, after it was known that no appropriation had been made wherewith to pay his salary, was a violation of section 5' of chapter 583 of 1871, and that the defendant was not liable for the debt so incurred. (Brady, X, dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered on the trial of this action by the court, without a jury, in an action brought by plaintiff to recover his salary as first deputy clerk to the boai’d of supervisors of the county of New York.

      John II. Strahan, for the respondent.

      D. J. Deem, for the appellants.
   Davis, P. J.:

The plaintiff was appointed to the office of first deputy clerk of the board of supervisors, by a resolution of that board, adopted on the 28th of December, 1871, to take effect on the 1st of January, 1872. ITe continued to perform the duties of the office until the 1st of May, 1873. The salary was fixed by the resolution of the board of ’supervisors, adopted in 1864, at $4,000 per annum, and that sum had been paid to the plaintiff’s predecessor up to the date of the plaintiff’s appointment. The salary was payable in monthly installments, but nothing has been paid to the plaintiff. Two points are made by the appellant. 1. That the supervisors were not authorized by law to employ a deputy clerk; and, 3. That the supervisors had no power to incur any expense for the salary of the deputy clerk in the years 1872 and 1873, because no money was appropriated for the salary of such officer during said years. As to the first of these points, it may be said that under the provisions of the Revised Statutes, the board of supervisors had power only to appoint the clerk, and none to appoint deputy or assistant clerks. It appears, however, that prior to 1864, and as early perhaps as 1860, the board of supervisors appointed a deputy clerk, and that in T864 the board fixed his salary, by resolution, at $4,000 per annum, and continued such appointment from year to year, down to and including the time at which the respondent was appointed. Appropriations to pay the salary of such deputy were made annually by the legislature for a period of ten years, as appears by the Session Laws of such years, from 1860 to 1870, both inclusive. (Ohap. 509, Laws of 1860; chap. 240, Laws of 1861; chap. 452, Laws of 1862.; chap. 108, Laws of 1863; chap. 404, Laws of 1864; chap. 605, Laws of 1865; chap. 837, Laws of 1866; chap. 806, Laws of 1867; chap. 854, Laws of 1868; chap. 875, Laws of 1869, and chap. 382, Laws of 1870.)

By chapter 190 of the Laws of 1870, the legislature created for the county of New York a new board of supervisors, and by section 10 of that chapter declared that “ all officers and subordinates of the existing board of supervisors, which would be superseded by the board constituted by this act, and which may severally be holding any office or place in the superseded board, shall continue in their respective offices and places, subject to removal for misconduct. Whenever any vacancy occurs in said transferred and continued office and place, it shall be filled by the board of supervisors hereby constituted.” These various statutes, by necessary implication, we think, must be held to have conferred upon the board of supervisors the power to appoint a deputy clerk. A vacancy occurred in that office by the resignation of the incumbent on the 28th of December, 1871; to fill which vacancy the respondent was appointed. We are of opinion that the appointment was legal.

In relation to the second point, it is to be observed that the compensation of the deputy clerk was not one fixed by law, but was wholly dependent upon the resolution passed by the board of supervisors for its amount; and for its payment upon appropriations to be made from year to year by the legislature or other competent authority.

No appropriation for the payment of the salary of the deputy clerk of the board of supervisors was made by the legislature of the State for the year 1872 or the year 1873. By chapter 583 of the Laws of 1871, the board of apportionment of the city of New York was authorized to determine the amount to be expended for each object of public expense, and to determine the amount to be raised by taxes, and to distribute the same amongst the departments or officials authorized to incur debts. It was clearly the intention of the legislature by that act, that the amount of salaries should be controlled and limited by the board of apportionment, in so far as they were not fixed by statutes regulating the salaries of officers elected by the people, or whose appointment was not within the discretion of local bodies or officers.

Section 5' of chapter 583 of the Laws of 1871, provided that no liability, for any purpose whatsoever, should be incurred by the officers of the county of New York exceeding the amount of the appropriation made for that purpose. It appears that the board of apportionment appropriated for the clerk of the board of supervisors for the year 1872 the sum of $5,000, which was the amount of his salary as fixed by the resolution of 1864, and that they made an appropriation for the first four months of 1873, for such clerk, at the rate of $5,000 per annum. No appropriation was made in either year for the payment of the deputy clerk. Nothing was paid to the respondent, and as his salary was payable monthly he must be deemed to have had notice, at least as early as the expiration of the first month of the year 1872, and at the expiration of each successive month during the period he held the office, that no appropriation to pay the salary of his office had been made, and that payment was refused to him for that reason. He continued, however, to hold the office and perform its duties taking the chances of being able to enforce payment of his salary, notwithstanding the board of apportionment had made no appropriation for such purpose. It appears very clearly that the amount appropriated by that body, authorized by law to perform that function, for the payment of clerical duties in the board of supervisors was fixed and limited at $5,000, and the question is simply, whether the board of supervisors had power to incur any liability beyond that sum, by continuing in office a deputy whose compensation was not and could not be met out of the sum so fixed by the board of apportionment. To us it seems clear that their act in so doing was the incurring of a liability exceeding the amount of the appropriation made for the purpose for which it was incurred; or, in short, that it was doing an act necessarily inhibited by the provisions of law above referred to. It is supposed by the learned counsel for the respondent that this question has been disposed of by the courts in Quinn v. The Mayor (63 Barb., 595); Kessler v. The Mayor ; The People ex rel. Monheimer v. Green ; Monheimer v. The Mayor, and Macgowan v. The Mayor, and tbe learned court below appears to have been controlled by the decision of the Court of Appeals in Costello v. The Mayor and Kessler v. The Mayor (not yet reported). We think these cases are clearly distinguishable from the present case in this important particular: they were for the recovery of salaries or fees fixed by statute, and which could not be changed by the board of apportionment because not within their jurisdiction. They were liabilities not incurred or to be incurred by the action of any of the officers of the county, but by the necessary operation of law over which such officers had no control. In this ease the liability was the result of an express employment or appointment by the board of supervisors for the performance of duties, for which another officer was provided by statute. Such appointment was discretionary and not compulsory. The duration of the office was neither prescribed by the Constitution nor declared by law, and the office was, therefore, held by express provision of statute “ during the pleasure of the authority making the appointment.” (1 Rev. Stat., p. 107, § 8 [Edm. ed.].) The power to terminate the office rested with the board of supervisors, and the incurring of the liability for the salary, after it was known to that body that no appropriation therefor was made, was a voluntary and unwarranted violation of the restrictions imposed upon them by the act of 1871. It was an expense within their control, and in the absence of an appropriation, the law devolved upon them the plain duty to stop it; and for courts to adjudge a recovery is to sanction a violation of law.

If the respondent would be entitled to recover for services up to the time when the board of apportionment refused to make any appropriation for such services, it seems to us there can be no greater recovery unless we hold that the restrictive statute is not applicable to this case, or that the board of supervisors had power to override its provisions, notwithstanding the clearly expressed will of the legislature.

We think there should be a new trial, with costs to abide the event.

Beady, J.

(dissenting):

The office held by the plaintiff was one in existence at the time of the passage of the act of 1871 (chap. 583), and no liability was created or incurred by continuing him in bis position made legal by acts of tbe legislature. The liability already existed and it was the duty of the board of apportionment to provide for the salary.

The omission to do so should not prejudice him. Tf the city prevail herein on such a theory it takes advantage of its own wrong. It was properly said by Daetiels, J., when an application was made by the plaintiff for a mandamus: “So much of the salaries as would accrue and become payable in any one year ought, under the provisions of the law relating to that year, to have been included in the estimate made for its expenses. That was plainly the duty of the officials required to make those estimates.” And further: “ It was to supply the omission arising out of that neglect that the present proceedings were instituted.” If the office held by the plaintiff had been created after the estimates were made it would present a case contemplated by the act of 1811.

I think the judgment should be affirmed.

Present — Davis, P. J., Beady and DaNiels, JJ.

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


source: Caselaw Access Project

author: Beady, J.: Davis, P. J.: Daotels, J.

license: Public Domain

text:
    JOHN R. FELLOWS, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Assistant district attorney of New Yorlc — S'tate officer — salary of.

    The assistant district attorney of the county of New York is an officer of the State government, and not of that county, and the hoard of apportionment created hy chapter 583 of 1871, “to regulate all salaries of officers and employes of the city and county governments ” had no power to reduce his salary.
    Where a provision establishing the salary of the assistant district attorney of the county of New York was contained in an act entitled “An act to make further provision for the government of the county of New York,” held, that the provision was local as it affected the salary of the officers in a particular county only, yet that the title of the act sufficiently expressed the subject.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, in an action brought by the plaintiff to recover a balance alleged to be due him for his salary as assistant district attorney for the county of New York.

      Francis I/ynde Stetson, for the appellants.

      Oha/rles F. Miller, for the respondent.
   Beady, J.:

The question presented in this case is, whether the plaintiff was or was not a State officer while holding the position as assistant district attorney. It is conceded that the district attorney is a State officer. It could not well be questioned. (Rev. Stat., vol. 1, p. 96 [Edm., vol. 1, p. 98, § 15].) The plaintiff was appointed by that officer under the provisions of the Revised Statutes authorizing the appointment of all assistants, etc., by the body, board or officer by which or to whom they shall be respectively subordinate, in all cases in which the appointment is not specially provided for. (i Rev. Stat., 116, § 5.) The salary of the district attorney is fixed by the supervisors and paid by the county. (§ 3, chap. 441, Laws 1851.) In 1868 (chap. 854, Laws 1868, p. 2025) the legislature recognized the assistant district attorneys in the act making provision for the government of the county of New York, and limited the number from the 1st January, 1868, to three.

Their duties in this county are not, it would seem, specifically set forth by statute, but they are sufficiently known and defined here to warrant this court in taking judicial .notice of them. The statutes in reference to these officers do not always state the duties. (See Laws 1857, chap. 409; Laws 1866, chaps. 8, 734; Laws 1872, chap. 587.) The latter act provides that these officers are to take the constitutional oath of office, attend all criminal courts, assist in all prosecutions for crimes and offenses, appear before grand juries, and perform the same duties before juries as are by law imposed upon the district attorneys. The act does not, however, apply to this county, its design being to create such officers in counties with a population over 70,000, and not to affect counties where the appointment of assistants was then authorized by law. The powers thus conferred upon the officers named are those which are exercised by the assistants in this county, and their services, in consequence of our large population, and the numbers of criminals who come within the borders of our city, from places too numerous to mention, are not only valuable but indispensable. They are connected with and make a part of the department of an officer of the State, connected with its judicial system, and performing many of his duties, with the same effect as if he discharged them personally. They are his assistants, and not officers of the city or county.

It is true that the salary given them is paid by the county, but this does not convert them into county officers, any more than the payment of the salary of the district attorney makes him such an officer. They are, it may be said, no less district attorneys because called assistants. They help to discharge the duties of the office, to administer the criminal laws. (See People ex rel. Buckley v. Benton, 29 N. Y., 534.) When provision is made for the government of the county of New York, the salary of these officers being a part of it, in virtue of their office, and the relation it bears to the department to which they belong, is ex necessitate included. They were not, therefore, within the provisions of chapter 583 of the Laws of-1871, authorizing (§ 3) the board of apportionment to regulate all salaries of officers and employes of the city and county governments. The classes subject to this provision are thus correctly described by Judge MoNbll : “ The officers whose salaries were brought within the regulating power of the board of apportionment, were intended to be such as formed a part of the political government of the 'city and county, and who were connected with the executive or legislative departments, and not such as were a part of the judicial system of the State ; otherwise, the legislature would not have limited it to officers of the government, but would have.extended it to all officers whose salaries were paid out of the city or county treasury. (Landon v. The Mayor, 49 How. Pr., 218 ; see, also, Whitmore v. The Mayor, 12 S. C. N. Y. [5 Hun], 195.) There is no force in the suggestion that, unless the plaintiff was connected with the county government, his salary was never legally fixed at the rate of $10,000. He was connected with the county government. This cannot be disputed, but it was in relation to the judicial system of the State that he was thus connected, in the same manner as his superior officer, the district attorney, is.

The salary of the latter has always been, paid by the city or county. (See 1 R. S., 383, § 95 ; act of 1851, supra.) This case is not analogous, therefore, to the case of Dolan v. The Mayor (13 S. C. N. Y. [6 Hun], 506). The employment of the plaintiff in that case was by authority of the county. In this case the employment was by authority of the legislature. The judgment is right, and should be affirmed.

Ordered accordingly, with costs.

Davis, P. J.:

Both of my brethren have given this case very full and elaborate consideration. It is only necessary that I should assign, briefly, my reasons for concurring in the result reached by my brother Bbadt.

First. It is very clear that, by statute, the district attorney of the city and county of New York is not an officer of the county government, but a State officer” and the fact that-his compensation is payable out of the treasury of the county makes no difference with his legal status in that respect. The respondent was an assistant district attorney. The functions and duties of his office were the same as those of the district attorney. He was not appointed nor was he removable by any officer or board of the county government, but, -in the absence of any statute directing the mode of his appointment or removal, the district attorney was clothed, by a general provision, with full power over that subject. (1 R. S., 116.) The existence of his office has been recognized in several statutes. (Laws of 1868, chap. 854; Laws of 1870, chap. 382.) His salary was fixed by the legislature by the introduction into chapter 382 of the Laws of 1870 (in the legerdemain form of legislation then much in use), of a provision declaring that “ the assistant district-attorneys of said county shall receive the same annual salary as that now paid to the city judge,” which happened then to be the sum of $10,000 per annum. The board of apportionment, by the third section of the act entitled “ An act to make provision for the local government of the city and county of New York,” passed April 19, 1871 (chap. 583 of the Laws of 1871), were empowered to regulate all salaries of officers and employes of the city and county of New York, and that board, by resolution passed May 15, 1871, resolved that such salaries be reduced at the rate of twenty per cent per annum, to take effect on the first day . of June, 1871. The power given by the act only applied to the salaries of officers and employes of the city and county governments. The board had, therefore, no authority over officers of the State government, whether their duties were local1 to the county or their salaries paid out of the county treasury or not. Whether an office is one of the county, or of the State government is purely a question depending upon its classification by law. I think it is manifest, under the statute above referred to, that the district attorney himself is an officer of the State government. He is classified among the judicial officers of the State, and no reason exists for holding that his assistants, who possess the same functions and perform the same duties, should not be classified, by operation of the same statute, in the same manner. They do not belong to nor form any part of the county government, but take rank as officers of the State government for the purpose of enforcing the laws of the State within their territorial jurisdiction. The mode in which their salaries are to be paid, and the location in which their duties are to be performed, are mere incidents neither defining nor affecting their legal status as public officers. Hence the fact that the statute gave the board of apportionment power to regulate the salaries of officers and employes of the city and county of New York, did not affect the respondent, because he was neither an officer nor an employe of the city or county government.

Secondly. It is argued that if this be so, the salary of the respondent was not lawfully increased by the act of 1870, but remains as previously fixed by the board of supervisors, and therefore no recovery can be had. This question hinges upon the constitutional power of the legislature to enact the provision above recited as part of a local act, entitled “ An act to make provision for the government of the county of New York.” Although the assistant district attorneys are officers of the State government, yet a provision of law affecting the salary of such officers in a particular county is local and not general legislation, and therefore it is obnoxious to the constitutional inhibition, unless it is fairly within the subject embraced in the title of the act. A general provision affecting all the district attorneys or assistant district attorneys of the State, would be a general law and its inclusion in a local bill would not, within tbe decisions of the Court of Appeals, render it unconstitutional. In The People v. McCann (16 N. Y., 58), the court held that general provisions are not rendered void by reason of their being contained in some act with other provisions of merely local application, although the title refers to the latter provisions only, and this decision was reiterated in Williams v. The People (24 N. Y., 405). But the provision in question only affects officers of a particular locality, and therefore must be deemed local in its character.

The Constitution requires that the subject only of a local act shall be expressed in the title, and not its objects, or details. I think the subject, as expressed in the title of this act, does embrace the object covered by the provision under consideration. The subject of the act is the making of provision for the government of the county of New York. It is part of the objects of that government, to raise money and apply the same to the payment of the salaries of such of the officers of the State government, who reside and perform their function within the county, as the legislature have seen fit to require to be paid by the county. Hence the act making provision for the government of the county may properly embrace provisions for raising money to pay such salaries and directions declaring their amount.

I think, therefore, the law which increased the salary was not unconstitutional. And for these reasons I concur in the conclusion of my brother Beady, that the judgment should be affirmed.

Daotels, J.

(dissenting):

The plaintiff recovered a verdict on which judgment has been rendered for the unpaid balance of his salary as assistant district attorney of the county of New York, at the rate of $10,000 per year. He held the office and discharged its duties from the 1st of January, 1872, and by chapter 382, of the Laws of 1810, entitled “ An act to make further provision for the government of the county-of New York,” it was declared that the assistant district attorney of said county shall receive the same annual salary as that now paid to the city judge ” (vol. 1, Laws of 1810, chap. 382), and that was conceded to be the sum of $10,000. By this provision the assistant district attorney was designated an officer of the county, from which his salary was to be received. His duties, from the nature of the appointment and employment, must in a general sense have been very much the same as those of the district attorney whose assistant he was. That would be the effect of his position as an assistant without any specific legal designation declaring it in terms. To be an assistant, without any restraint concerning the extent of assistance to be rendered, would necessarily imply an employment, for all practical purposes, as broad as the general duties of the officer to be assisted. (People v. Benton, 29 N. Y., 534-538.) And as an officer of the county whose salary was payable by the county, the legislature had the power to declare the extent of it, in an act passed for the sole purpose of making provision for the support of the county government.

No law had declared the office any more than an office of the county. In that respect it differed from that held by the district attorney himself, who has been classified among officers of the State for the county in which the office is held. (1 R. S. [5th ed.], 379.) And the legislature could very well provide the plaintiff’s office with a different designation, and make it a part of the county government, as it substantially did by the reference made to it in the law of 1870, advancing the salary. The duties of the office though general were still local. They were performed in and about the proceedings of the courts in the county of New York, its powers and functions were chiefly to be exercised in the county, and the services performed by its incumbent paid for out of the revenues of the county. And in terming it an office of the county and providing for it as such in an act relating only to the county government, the legislature must have understood it to be a part of that government. It is true the laws to be enforced by the officer were generally those of the State, but in that respect. the plaintiff did not differ in principle from other county officers, who are all more or less engaged in the enforcement and execution of the ■laws of the State.

The principle affecting this case in this respect does not differ essentially from that of Huber v. People (49 N. Y., 132), in which it was held that so much of chapter 383 of the Laws of 1870, as provided for the reorganization of the Court of Special Sessions was unconstitutional, because that court was a local subject, and provisions concerning it could not be united in the same act with another local subject. In the opinion in that case it was declared that “An act regulating the duties of a public officer under the general laws of the State, if limited in its operation to a part of the State, or to a single county, is local, and must be passed in the form prescribed by the Constitution, although the subject-matter of the enactment is public, and affects public interests ” (id., 135); and the case of People v. O'Brien (38 N. Y., 193), in which so much of an act as provided for the term of office and the time of electing councilmen, was held to be in contravention of the provisions of the Constitution relating to the passage of local laws, because it had been inserted in a local law passed to enable the board of supervisors of the county of New York to raise money, etc., was referred to as supporting that principle. The case of Gaskin v. Meek (42 id., 186), in which an act was held void because it was proposed by it to regulate the fees of both the sheriff and referee in the city and county of New York, was also cited for the same purpose. In both cases the acts were held to be confined to local subjects, and for that reason could constitutionally include but one, which was required to be expressed in its title. The case last referred to is entitled to much weight in the determination of the present controversy, for it related in part to the fees of the sheriff of the county, who had been classified among the State officers in the same terms as the district attorney had, and by the same statutory provision. (1 E. S. [5th ed.], 319.) -If the office of the sheriff could properly be held to be local as it was in that case, surely that of the plaintiff must have been so. The act of 1870. was therefore a local law, so far as it related to the salary of the plaintiff. It was to pay him for the services required from him as a local officer of the county, which it in terms declared him to be, and for that reason he was within its title, which was to make further provision for th6 government of the county of New York. If he was not, then it follows that so much of the act as provided for advancing his salary was not constitutionally enacted, and he had no right whatever, at any time, to demand or receive it, and cannot now recover the amount claimed by him ; but as he was a county officer, whose salary was payable from the county revenues, it may be reasonably held, that the advancement of the amount of it was incidental to the general subject expressed in the title of the act, for it was not inappropriate to the subject of making provision for the support of the county government, to provide at the same time for the manner in which its revenues should be expended. (People v. Lawrence, 41 N. Y., 123, 139 ; People v. Common Council of Rochester, 50 id., 525; People v. Briggs, id., 553; Sullivan v. Mayor, etc., 53 id., 652; Harris v. People, 59 id., 599.) And it must directly follow from that conclusion, that it was equally within the power of the legislature to provide again for the reduction of the plaintiff’s salary by the act of 1871, under the similar title of “An act to make provision for the local government of the city and county of New York.” If it could be advanced by such an act, it was capable of being reduced in the same way (Dolan v. Mayor, 12 S. C. N. Y. [5 Hun], 506); but that was not done by a direct provision declaring that intent; it was provided for, if done at all, in a general way, by empowering the mayor of the city, the comptroller, the commissioner of public works, and the president of the department of public parks, as aboard of apportionment, to regulate all salaries of officers and employes of the city and county governments.” (Laws of 1871, chap. 583, § 3.) The power of the legislature to make this enactment has not been assailed, or in any manner denied, but it has been urged as inapplicable to the case of the plaintiff, on the ground that he was not an officer of the county government, and for that reason alone not within this power conferred upon the board of apportionment. If he was not a county officer, then his salary was never increased; for it was only as an officer of the county government that it could be constitutionally done in an act to make provision for that government, and if he was then an officer of the county government, he must have been the same when the act of 1871 was enacted. If his office was included within the terms county government, when the first act became a law, it certainly had not ceased to be so at the time of the passage of the other. By the first, the legislative understanding of what the office was, found expression in plain terms, which designated it as an office of the county, and as such it was provided for as part of the county government. The terms county government were used in both acts as expressive of the same subject-matter, and they were as broad in the last act as they were in the first. It would be entirely unreasonable to hold that the same thing was not intended tobe expressed by the same terms as was at first designed, whenever they were again made use of without qualification, and no restraint whatever was imposed upon their signification in either of these instances. In the title to the act of 1870, and in that of 1871, and in the power conferred upon the board of apportionment, the county government is referred to as the same identity, the same subject, and in the later use made of the phrase, it must necessarily have included all that it did in the title of the act of 1870; that must have been the understanding and intention of the legislature in using it. It would be plainly absurd to attribute any different design to the signification of the words, in designating'the powers of the board, from that given to them for the purpose of maintaining the validity of the first act, under which the plaintiff’s salary was increased, and as no reasonable distinction of that nature can be drawn, then it follows that the board did have the power to reduce the plaintiff’s salary as it was exercised. Its proceedings are not objected to, but simply its power to act in this particular case, and the existence of the power itself seems to be reasonably free from doubt. The plaintiff was an officer of the county government, as that was referred to in the act of 1871, and the board could, for that reason, lawfully redu ce his salary. The cases of Quin v. Mayor (44 How., 266); Landon v. Mayor (49 id., 218), and Whitmore v. Mayor (12 S. C. N. Y. [5 Hun], 195), have been relied upon as authorities requiring a different construction to be given to the term county government; and if they do, then the plaintiff’s case must fail, because his office was not included by means of them in the act of 1870. But these cases do not appear to warrant the position they were cited to support. In the first, the points considered were, whether Quin who was a justice of one of the District Courts, was entitled to the salary of $10,000 per year, because it was actually paid to the police justices when the act was passed under which he claimed it; and if he was, whether the failure to make an appropriation for its payment was a defense to the action. That was substantially all there was of that case, which included no feature of the present controversy. The same observation will apply with equal force to the case of Landon, who was a deputy clerk of tbe Court of Common Pleas. The legislation concerning his office did not show it, as it has in this case, to be properly designated as a portion of the county government; while the case of Whitmore arose under and depended upon the construction to be given to an entirely different provision contained in an act passed in 1873. (Laws of 1873, chap. 335, § 97.) Neither of these cases can properly be allowed to control the one now before the court, for the statutory provisions relating to it have been enacted in different terms, and for the purpose of securing different results.

The action of the board of apportionment by which the plaintiff’s salary was reduced should be sustained, if the construction given to the act of 1870 is the proper one, holding it to have been constitutionally increased; and if it is not, then no reduction was required by the board of apportionment, because the salary was never properly advanced. There is no equity whatever in the claim made, and the law should not be strained in order to sustain it. The plaintiff understood the amount fixed by the board as his compensation, and he apparently acquiesced in its action, by continuing to discharge the duties of his office afterwards and receiving the salary as it had been reduced. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.


author: Dahxels. J. :

text:
    MAURICE GINNA, as Administrator, etc., of JOHN GINNA, Deceased, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Negligence — Tiding on platform of st/reet cm' — proximate cause of death.

    Where a passenger upon a street car in the city of New York, being unable to obtain a seat in the interior of the car, remains standing upon the platform thereof, he is not guilty of such contributory negligence as prevents him from recovering damages for injuries sustained by him, in being thrown from the car in consequence of the negligence of the driver thereof.
    By his fall from the car the arm of the deceased was broken above the elbow, the broken fragments of the bone protruding through the skin and resulting in the development of a poisonous discharge, which, being absorbed by the blood, caused his death. Held, that the wrongful act of the defendant in occasioning the wound was the cause of his death within the meaning of the statute, and that the defendant was liable for the damages occasioned thereby.
    Appbai from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Austen G. Fox and Waldo Hutchings, for the appellant.
    The plaintiff’s intestate was guilty of negligence that contributed to the injury he received, and the complaint should have been dismissed. (GlarTce v. The Eighth Ave. R. R. Go., 36 N. Y., 136; Hickey v. Boston and L. R. R. Go., 14 Allen, 421.) When it appears that a passenger is riding upon a car in a place of hazard and danger, his negligence is prima facie proved, and the onus is upon him to rebut the presumption. (Clarke v. The Eighth Ave. R. R. Go., 36 N. Y., 136.) The front platform of a horse car is a place of hazard and danger. (Solomon v. Gent. Park, etc., R. R. Go., 1 Swee., 298.) The motion to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action, and the motion for a new trial, should have been granted. It was not enough to show that the deceased was injured by the negligence of the defendants and that his death occurred three weeks thereafter, especially as the only injury he sustained was a broken arm, but it was necessary to show that the injury the deceased received, and that alone, directly caused his death. It was pyaemia that caused the death; and the neglect in not caring properly for the open wound and the foul discharge therefrom that produced the pyaemia. So far from showing that' the defendant’s negligence was the sole and direct cause of the death of the deceased, the testimony shows that the jolt of the car, the falling off the edge of the platform and the breaking of the arm was each one of a series of events that ended, a little over three weeks later, in the death of the deceased; but that his death was no more the necessary, natural or even probable result of any one of these events than it was of his starting to go to the temperance meeting, on his way to which he fell off the platform of the defendant’s car. (Ryan
      y. JV. Y. O. B. B. Go., 35 N. Y., 210; Morrison y. Davis, 8 Harris [Penn.], 171.) Death is not a necessary or usual result of a broken arm. That it is possible cannot be denied, but common experience teaches us that it is very unfrequent.

      O. P. Buell, for the respondent.
    Whether the injury resulting in John Ghana’s death was caused by defendant’s negligence, and whether he himself was chargeable with contributory negligence, were questions properly submitted to the jury and their decision thereon ought not to be disturbed. (Bernhard v. Bens, a/nd Bar. B. B. Go., 1 Abb. Ct. of App. Dec., 13; Salter v. Utica, etc., B. B. Go., 59 N. Y., 631; Weber v. JY. Y. Gent., etc., B. B. Go., 58 id., 451; Thurber v. Harlem, etc., B. B. Go., 60 id., 326, and cases cited; 2 Redf. on Railways [4th ed.], 231; 17 Wall., 657.) It is not negligence per se, and in all cases and under all circumstances, for a passenger to ride standing on the platform of a car. It was not negligence in this case. (Glarke v. Eighth Ave. B. B. Go.,-36 N. Y., 135; Willis v. Long Island B. B. Go., 34 id., 670; Spooner v. Brooldyn B. B. Go., 54 id., 230; Hadeneamp v. Second Ave. B. B. Go., 1 Swee., 490; Edgerton v. N. Y. and Ha/rlem B. B. Go., 39 N. Y., 227; Meeser v. Lynn cmd Boston B. B. Go., 8 Allen, 234; Burns v. Beliefontaine B. B. Go., 50 Mo., 139.)
   Dahxels. J. :

The plaintiff who, upon the argument of these appeals, was admitted to have been properly appointed administrator, prosecuted this action for the recovery of damages arising out of the death of his minor son, which was alleged to have been caused by the negligent act of the defendant’s servants. The facts appeared by evidence uncontradicted, and in such a manner as to leave them open to but very little if any controversy. The driver of the car testified that the deceased “got on at Thirty-third street; crowded inside; the boy got on, and in the first place he looked in through the door; there was a lady standing up against the door, and he then turned with his back to the car; I supposed he had hold on the back; whether he had hold of the railing, I could not say ; he stood a little to the left of me on the platform, inside of the step ;” there were three or four others also standing upon the platform. The car proceeded in this manner until it reached a switch, which was not known to the driver, between First and Horiston streets; he was then driving at the rate of six miles an hour, or at a slightly higher rate of speed; the switch had been left open, so that the car, instead of following the main track, would run upon that; and whén it was reached, the horses continued on the line of the main track, and the ear took the switch; that produced a violent jolt or shock, which threw nearly all the persons riding upon the platform of£ into the street; by the fall the deceased fractured his arm, which was followed by a disease resulting, three weeks after-wards, in his death. The driver had been employed in the capacity in which he acted, from November until March, and stated that it was the practice to walk slow where there was a switch, and that he would not have driven so fast if he had known one to have been at that point. This evidence was further sustained by a witness, who also rode upon the platform. He testified that there was room for him to stand inside, but not for him to sit, and he described the accident substantially in the same way as the driver had previously done. Under these circumstances, it was quite evident that it was the result of carelessness and incompetency on the part of the driver. To drive along a public avenue at the rate of speed mentioned by the driver, at a point where a switch was maintained, which was liable to be opened by passing cars and other vehicles, upon which, when opened, the car would inevitably be propelled, without even the knowledge on his part of its existence, presented a clear case of negligence, falling, if any thing, but little below positive recklessness. That was practically conceded by the evidence of the driver, when he said that he would have gone slow if he knew that a switch existed there. The judge, however, left the question of negligence to the jury, commenting, at the same time, upon a portion of it in such terms as indicated his opinion to be the same as that which has just been expressed. And to that intimation, concerning one of the facts, the defendant’s counsel excepted. But the exception cannot be maintained, for the reason that what was said in- this respect was fully justified by the evidence, which was without conflict on this part of the case. All that was said on this subject which the counsel considered exceptional, was the remark that the driver did not appear to be an experienced person in that occupation. The learned justice said: “How long he had been in the habit of driving a car, or if he had ever been in the habit of driving one, there is no evidence before you.” It was not intended by this to be denied that he had driven as he said he did, from November to March, but. simply to intimate to the jury that he was not a practiced or habitual driver; and that had been substantially stated by the witness himself, who said that his trade was that of a baker, and he had never driven a car before. The more substantial part of the controversy related to the position and conduct of the deceased, and what was said in that connection by the learned justice in the charge given to the jury'. It was urged in the defendant’s behalf that negligence appeared on the part of the deceased, by proof of the fact that he rode upon the platform at the time of the accident; but the court declined to adopt that view and submitted the question to the jury, for them to decide it under the circumstances appearing from the evidence. The portion of the charge upon this subject contained intimations, which indicated the existence of an opinion that the deceased could not be charged with negligence from the mere fact of riding upon the platform when the inside of the car was full; but in that proposition the learned justice was precisely in accord with the established authorities. (Ward v. Central Parle, etc., R. R. Co., 42 How., 289; Clark v. Eighth Ave. R. R. Co., 36 N. Y., 135; Willis v. Long Island R. R. Co., 34 id., 670; Spooner v. Brooklyn R. R. Co., 54 id., 230.)

In the outset it was remarked, by way of admonition to the jury, that “ whatever might be said in regard to any of the facts that are in dispute, you must use your own judgment, and not mine, as what I shall say is merely to illustrate points of law that are in the case, leaving to you the decision of the questions of fact.” And that was in no manner afterward retracted or withdrawn. But the following observations, which, in some respects, were more general than was required, either by the decisions of the courts or the evidence in the case, were made in the course of the charge: “ It is said, with some truth, by members of the bar, that the 'Court of Appeals have gone a great way in excusing railroad corporations for accidents that have occurred, but until the Court of Appeals shall decide to what extent cars may be packed without allowing men to stand on the front or rear platform, whose fare they have taken, I am not prepared in this case to charge, as matter of law, that merely standing on the front or rear platform on the part of the deceased was negligence. I am disposed to submit to you as a question of fact, for you to say whether, under the circumstances, that was a negligence on his part contributing to the accident by which he sustained this injury. How far the Court of Appeals shall finally determine that a car may be packed without allowing men to stand on the outside, it is not for me to say at the present time. I do not think that they have gone to the extent of saying that a car must be packed so full that mechanical pressure would be required to get any more in, before allowing men to stand outside.”

To this statement a general exception was taken by the defendant’s counsel. The proposition advanced was sound, for it left the jury to determine whether, in the condition in which the car was when the deceased took passage upon it, he was negligent in remaining as he did upon the platform. If he could not conveniently enter it, he certainly was not negligent, and there was evidence in the case tending to warrant that view. .The Court of Appeals has not gone so far as to hold that in such a case the passenger will ride at his own peril by standing upon the platform. But it has been otherwise held that upon a train propelled by steam, and ordinarily traveling at a much higher rate of speed than street cars, negligence will not be attributable to the passenger injured, from the mere fact that the injury occurred while he was riding upon the platform when a seat could not be obtained inside the car. And there was no apparent reason for supposing that the authority upholding that proposition would be disregarded or overruled by any subsequent decision on the same subject. It was, on the contrary, to be supposed that street railway companies would be held liable to the observance of the same rule; and as they are run at less hazard and risk, in the way of accidents to passengers, they are certainly entitled to no more favorable consideration, and they have received no more in the administration of the law by the courts. If further instructions were deemed necessary by way of explanation upon this subject they should have been, but were not, requested.

The defendant’s counsel, in like manner-, excepted to the statement made, that the jury had a right to infer from the evidence of the driver, that the deceased held on to the iron rail at the end of the car to keep on the platform. That had been stated by the driver without objection to it, as an inference he deduced from the fact that the deceased, after looking- into the car, turned his back to the end of it. The facts themselves did appear from the evidence he gave. The deceased stood with his back to the car, which was a position warranting the supposition that he would take hold of the railing placed there to steady and maintain himself in his position, as people usually do when they can, who are riding upon the platform of a street car. The jury could justly infer from these facts that such was the position in which the deceased had placed himself, and that was all that was really held by the court.

It was further added upon this subject: “ I submit to you the question whether the position of the deceased, under the circumstances, contributed in any way to the accident by which this injury was sustained? That question I feel disposed to leave to you as a question of fact, not being prepared at the present time to say that mechanical pressure is needed to fill a car before a man can stand oh the platform.” That was excepted to by the defendant’s counsel. But as the proposition contained in the statement was as favorable to the defendant as it had any right to require, the exception cannot be sustained. It - was probably intended by what was said to repeat only what had before been stated, which was that the plaintiff could not recover if the deceased was unnecessarily and negligently riding on the platform of the car; it was in that sense that it must have been understood by the jury, for if they had followed its literal effect they would necessarily have found a verdict for the defendant, inasmuch as it was clear that the position of the deceased did contribute to the production of his injury. In that respect the case was too strongly stated in the defendant’s favor.

The court also stated that the question of damages was entirely within the judgment of the jury, and to that an exception was taken by the defendant’s counsel. The statement was entirely accurate and no explanation was required to be added to it. For both reasons the exceptions must be overruled.

Under the evidence which was given, all these points were disposed of properly by the court. If more was said than was required in some respects, it was not to the injury of the defendant. The case was a proper one for the jury, and their verdict cannot be set aside as unwarranted. The evidence showed that the deceased sustained his injury by the carelessness of the defendant’s servant. He was required to stand, in farther from the edge of the platform on two occasions by the conductor, but he was then nearly a foot from the steps, and it does not appear that lie could conveniently have placed himself at a safe position while the other persons besides himself were also riding upon the platform. These, however, were matters appropriately left to the determination of the jury, and it must be assumed now that they were properly considered and decided by them.

The deceased was shown to have been a remarkably temperate, industrious, healthy and intelligent young man of the age of eighteen years, and the verdict, which was for the sum of $3,000, was not under those circumstances disproportioned to the injury caused by his death to his next of kin.

By the fall his arm was fractured above the elbow, the broken fragments of the bones protruding and wounding the flesh and the skin. That resulted in the development of a poisonous discharge which remaining in the wound was absorbed by the blood and in three weeks afterwards he died from the effects of the poison. It was not claimed upon the trial that the injury had been improperly treated or that death was not the result of it. And the position could not have been reasonably taken in view of the evidence of the physician, for he testified that the bones had been put in their proper position, and that the physicians of the hospital of which the witness was one, would probably have treated the injury in the same way it had been done before the deceased went there. More attentive treatment might have saved the life of the young man, but its necessity was not apparently suspected. He was subjected to that which was followed and designed to be proper by the wrongful act of the defendant. That was the cause which placed his life in jeopardy, because it produced the wound whose poisonous discharges resulted in his death. No other wrong or misconduct than that of the defendant was shown to have intervened ; that caused his death, within the meaning of the provisions of the statute relating to this class of cases, by producing the bodily condition rendering it under the circumstances inevitable. It was the operative as well as the proximate cause of death, and that was sufficient to render the defendant liable.

The judgment and the order should be affirmed.

Davis, P. J., and Bbadt, J., concurred.

Ordered accordingly.


author: Davis, P. J.:

text:
    WASHINGTON A. ROEBLING and others, Respondents, v. WILLIAM BUTLER DUNCAN and others, Appellants.

      TPrcmd — concealment of bankrupt condition — 'Representation.

    Although a hanker or trader in embarrassed circumstances, who is struggling in good faith to retrieve his fortunes, is not compelled to disclose the fact of his embarrassment to persons dealing with him; yet, if he is at the time hopelessly insolvent, he is guilty of a fraud, if, by virtue of his supposed solvency and well established credit, he contracts obligations which he cannot reasonably expect to pay.
    Persons dealing with a banker in good faith, and in reliance upon his apparent solvency, will be protected against the consequences of the concealment by the banker of his real condition, if he is at the time not merely insolvent but bankrupt, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representation has been made.
    Appeal from an order made at Special Term, denying a motion. to vacate an order of arrest.
    The action was brought by the plaintiff against the defendants, copartners carrying on a business as bankers in the city of New York, under the firm name of Duncan, Sherman & Go., upon a bill of exchange, drawn by the defendants, Jnly 21, 1875, upon the Union Bank, of London, for £296 3s. 2d. sterling.
    An order of arrest was obtained therein against the defendants. The defendants, in the affidavit on which the motion to vacate the order of arrest was made, among other things, alleged as follows :
    “And this deponent further says, that the said firm of Duncan, Sherman & Go., composed of the defendants in this action, did, on the 27th July, 1875, stop their payments and execute and deliver a general assignment of all their estate and property of every description to William D. Shipman, Esq., counselor at law, upon trust to get in the said estate and convert the same into money, and apply the proceeds to the payment of all the debts of the defendants according to law, without any preference whatever; that the defendants were led to this course by the information received on the morning of that day by telegram from Europe, that negotiations there pending with a view to the permanent relief of the defendants, and to prevent the necessity of any interruption whatever in their business, had failed of success; that shortly before the sale of the bill of exchange in the complaint mentioned, deponent had returned from Europe, and about the time of said sale was engaged in an examination into the financial affairs of his firm. He had discovered that they were in an embarrassed condition, but was at the same time actually engaged in negotiations for additional means which would justify the defendants in continuing their business, a course which would be for the best interests of all concerned in their estate, and that deponent had strong hopes of accomplishing that result; and that it was not until the morning of the twenty-seventh of July, that from the advices received from Europe he became satisfied that the pending negotiations could not be carried to a successful conclusion; and that immediately upon receiving such advices he took the course which seemed to him most for the interest of all his creditors; that pending the said negotiations, and while the prospect seemed in favor of their successful termination, it was necessary that no change in their manner of doing business should be made, as the effect of such change would have been to render nugatory the efforts on foot for the permanent relief of the defendants.

      “ And this deponent further says, that it is not true that on the 21st July, 18J5, the defendants, or either of them, knew or believed that they were hopelessly insolvent, or had exhausted every avenue of relief, or possessed no financial resources whatever.
    “ And that it is not true that when the bill of exchange in the complaint mentioned was sold, the defendants, or either of them, knew that the same would not be paid or honored, or that they did not or would not have sufficient funds at the Union Bank to meet and pay the same. * * *

      “ And this deponent denies that he op his co-defendants, or either of them, ever made any pretense on the subject of their solvency, or perpetrated any cheat or fraud upon the- plaintiffs, or upon any other person, or by any trick or device whatever obtained moneys of the plaintiffs.”
    The court, from the papers used on the motion, found that when they sold the bill in question the defendants’ liabilities amounted to about $5,000,000, and their assets to about $2,000,000.

      Joseph la/rooque, for the appellant.

      Henry H. Morange, for the respondent.
   Davis, P. J.:

The court at Special Term, in deciding the motion, pronounced the following opinion:

Barrett, J. The rule of law which governs in cases of this kind is well settled. The question is one of intent, to be ascertained by an inquiry as to whether the debtor had any reasonable expectation of meeting his obligations at maturity. If he had such reasonable expectation, then it is the case of a legitimate effort by an embarrassed person, be he trader or banker, to retrieve his fortunes; and there the law is not so strict as to require a disclosure which would probably defeat the effort. Otherwise it falls within that other class of cases where the merchant or trader, finding himself hopelessly insolvent and with stoppage imminent, without disclosing his situation, and in virtue of his supposed solvency and well established credit, contracts fresh obligations which he cannot reasonably hope to meet; and this the law condemns as fraudulent. Now, in the case at bar, the defendants were hopelessly insolvent when they sold the bill in question; that is, their liabilities amounted to about $5,000,000, their assets to less than $2,000,000. They deny knowledge of insolvency, but admit knowledge of embarrassment.
Six days later they stopped payment, and made a general assign-. ment. Under these circumstances, it became very clearly the duty of the defendants, especially after the admonition of Mr. Justice Lawrenoe, to lay before the court all the facts upon which they based their sanguine expectations. This they have failed to do. They say that they were negotiating for additional means which would have insured their ability to continue, and that they had strong hope of accomplishing that result. But they furnish no facts upon this head. They do not say with whom they were negotiating, nor for what sums, nor do they give letters, telegrams, or other particulars. It was for the court to say, when the facts were presented, whether the hopes and expectations of which the defendants speak were reasonable and real. It certainly will not do for a firm which owes $5,000,000, and has less than $2,000,000 of assets, when taxed with continuing after knowledge of that state of things, to rely upon generalities. Again, on the question of knowledge, there is unfortunately the same reticence. The defendants admit that about the time of the sale of the bill they were engaged in an examination of their financial affairs, and had discovered that they were embarrassed, though not hopelessly insolvent. The court could better have sustained that view of the case, if the defendants had given the facts as to such examination and discoveries. Presumptively such examination disclosed the truth, viz., that the defendants could not pay forty cents on the dollar. If it did not, if there was any mystery about their affairs which could not be immediately unraveled by an examination of their books, or any peculiarity about their assets which rendered at least an approximately accurate valuation impossible, the defendants should have shown what the difficulty was. No light is thrown upon the subject by simply declaring that they found themselves embarrassed. That, again, was a matter for the court. What the defendants in fact found was, that they owed so much, and that they had such and such assets with which to pay. It was their duty to give the court, as nearly as might .be, a photographic view of this examination, and of all the facts tending to justify the assumption of mere embarrassment, which might be relieved by the acquisition of additional means. It is true that there is an averment in the defendants’ affidavits that the realizable value of assets did not “ necessarily ” appear upon the face of their books, and that without a close examination of the several accounts the value of assets or amount of losses would not ‘‘necessarily’’.appear. This is a general statement which is true of almost every firm, but whether, or to what extent, the defendants here, in continuing after such examination, were misled by any such state of things is not detailed. It thus appears that when the defendants sold the bill, their liabilities exceeded their assets by upwards of $3,000,000, and that they had made an examination of their condition which ought to have disclosed that fact, and the consequent futility of negotiating for the enormous sum, which would have been necessary to have placed them upon a reasonably sound basis. Under such circumstances, therefore, it was their duty to have stopped at once; and now, when they seek to justify their continuance until the failure of the negotiations for additional means, they should have spread before the court, fully and explicitly, the particulars of the examination which they had made, the assets which it showed, the value which they placed thereon, the facts upon which they grounded such valuation, and, as a sequiiur, what deficiency there then appeared to be between the liability of the defendants and means of payment. If, upon such facts having been presented, the court had been of opinion that as the defendants were then situated (that is, treating them as honest men of fair judgment, looking at their affairs according to the best lights then afforded to them), they were justified in believing that theirs was a case of mere embarrassment, and not of complete insolvency, it would have justified them in continuing their business without disclosing their condition. But even then, if the embarrassment appeared to be of so grave a character that without additional means there was no prospect of retrieving themselves, the court, before finally justifying the incurring of fresh obligations (even pending the negotiations), would have been compelled to ask for full and precise information as to the amount necessary to be had, and the grounds upon which the defendants based their hope of obtaining it; in fact, for the details of such negotiations. The explanations made by the defendants, with respect to the state of the account with the Union Bank of London, are sufficiently full. They do not, however, alter the effect of the failure to furnish the facts which have been discussed. Of course, the payment of the bill did not altogether depend upon the fact, that the defendant had money or credit with the drawee.- It depended rather xipon their eontinuanee. In other words, they were not justified in the expectation that the bill would be honored merely because the drawees had funds in their hands, unless they were also justified in the expectation of success in the negotiation for additional means, and in the belief that such additional means would enable them to continue their business without interruption. Indeed, as they themselves say, the cause of the failure of the Union Bank of London to honor their bills, including that now in question, was the telegraphic report in London of their stoppage and of the execution of their assignment. The court is, therefore, constrained to hold, as the necessary result of the conceded facts, calling as they do for clear and precise evidence (which has not been furnished) of other facts sufficient to justify the alleged expectation of continuance, that the defendants must have known, when they sold the bill, that before it reached London they would be compelled to close their doors, and that a refusal to accept would be the result. It follows, therefore, without the necessity of considering the other branch of the case, that the motion to vacate the order of arrest must be denied.”

A careful examination of the case has led us to substantially the same conclusion expressed in this opinion. It seems unnecessary, therefore, that we should do more than simply express our concurrence in the views and conclusions of the opinion of the Special Term. The ease stands upon a few bold and striking propositions : First. That at the time of sale to plaintiff of the bill of exchange, the defendants were, in fact, utterly and hopelessly insolvent. Their indebtedness was about $5,000,000. Their nominal assets did not exceed $2,000,000, and were in fact of much less value. They probably did not know the extremities of their condition, but enough is shown to establish that they did know that their condition was one of utter insolvency, unless they could realize relief to a very large amount from sources which they say were in contemplation. That relief was contingent. It wholly failed, and it seems to us that it must have been at all times so doubtful in character that the defendants had no right, with what knowledge they must have possessed of the hopeless condition of their own affairs, to force upon persons who dealt with them in good faith, with full confidence in their entire solvency, the chances of loss upon the failure of their alleged expectations. Certainly they were bound to show to the' court, in the. most clear and convincing manner, the basis of their expectations, and that they had just reasons for relying upon them. The opportunity was twice afforded them to do this on the two motions in this case. We agree with the court below, that the general statements were not sufficient Under the circumstances. Dealers with bankers, while acting in good faith in reliance on their apparent solvency, must be protected against the consequences of the concealment of their real condition when such condition is not merely insolvency, but utter bank ruptcy, and where such concealment involves a degree of bad faith from which the law will imply fraud, although no actual representation be made.

We think the order should-be affirmed.

DANIELS, J., concurred; Beady, J., concurred in the result.

Order affirmed.


author: DaNiels, J.:

text:
    In the Matter of THE WOVEN TAPE SKIRT COMPANY.

      Dissolution of corporations ■— Disagreement of trustees — Dale of assets —- chapter 442 of 1876.
    Under the provisions of chapter 442 of 1876, authorizing the dissolution of a corporation in case the trustees are unahle to agree as to the management thereof, the court may, in proper cases, direct the assets remaining after the payment of the expenses of the receivership and of the debts and liabilities of the corporation, to be sold and the proceeds divided among the stockholders.
    Appeal by Joseph I. West from an order directing the receiver of the property of the Woven Tape Skirt Company to sell at public auction, after due notice, as required by law, the interest of the corporation in letters patent, and an agreement concerning the use of the invention made with the assignors of such interest.

      Demiel T. Walden, for the appellant.

      Albert Gardozo, for the respondent.
   DaNiels, J.:

The corporation was formed for the purpose of manufacturing and selling woven tape skirts, under the right to do so secured by virtue of the patent and agreement. It consisted of but four associates, who disagreed in its conduct and management. For that reason alone it was dissolved, as it has been provided that such corporations may be, pursuant to the authority for that purpose created by chapter 442 of the Laws of 1816.

When the corporation was formed, the appellant and Moritz Cohn each owned one-sixth of the patent, and had an agreement-with the owners of the other four-sixths concerning its use. These two persons assigned the agreement and their respective one-sixths in the patent to the corporation, and received an equivalent for the same in an obligation that there should be issued to each of them 300 shares of its paid up stock. They also contributed for working capital the sum of $20,000 each. After the formation of the corporation, Cohn transferred one-third of his interest in it to Samuel Galland, who continues to be the owner of that interest. Both himself, and Cohn, who is the owner of two-thirds of one-half the stock of the corporation, desire a sale of the interest assigned to it in the patent and agreement; and, in support of their supposed right to have such sale made, swear that, in their judgment, a larger price can be obtained for the entire interest together than for the two undivided halves sold separately. Tire appellant is willing to receive back his interest as he assigned it in full, for so much of his right to participate in the assets of the corporation, and protests against any sale of it whatever.

The statute provides that, after paying the expenses of the receivership and the debts and' liabilities of the corporation, the residue of its assets shall be distributed among the stockholders in proportion to their several interests therein. (Laws of 1876, chap. 442.) But it could not have been intended by this provision that it should be understood as prohibiting a sale for the purpose of making that distribution. Cases may arise where a distribution of the property itself can be equitably made by a decision, and where that mode of proceeding would secure to each one of the stockholders all that he could be entitled to receive. There a sale would be evidently needless and improper. In other cases, nothing less than a sale of the assets would, under a proper distribution of the assets, be practicable. In them the sale would become a plain necessity, and the only proper course for'making the distribution provided for by the statute. The legislature has not in terms prescribed the manner in which the assets shall be distributed. It has simply provided generally for a distribution; and, consequently, whatever may become necessary for the purpose of effectually and properly making it, must, according to well settled principles of construction, be included within the authority created by the statute. (Green v. The Mayor, 2 Hilton, 203, 209; People v. White, 59 Barb., 666.) If the distribution can be properly made without a sale, then it should not be made. But when a sale may become necessary to give each one of the stockholders his full interest in the assets, then, clearly, it should be ordered by the court. An exigency of this description has been shown by the affidavits to exist in this case. For it has been made to appear that a sale of the two-sixths of the patent, together with the agreement made for its use will, very probably, bring a larger proportionate price than a sale of one-sixtli with an undivided one-half of the agreement. And both Cohn and Galland are entitled to all the advantage that can be so secured in the distribution of the assets of the corporation. In that way alone will they receive the full measure of their interests.

For these reasons the order made was a proper one, and it should be affirmed with ten dollars costs, besides disbursements.

Davis, P. J., and Bpady, J., concurred.

Order affirmed", with ten dollars costs and disbursements.


author: DaNIEls, J.:

text:
    HENRY B. TODD, Respondent, v. SIDNEY F. SHELBOURNE, Appellant.

      Negotiable paper — invalid in hands of payee — bona fide purchaser of— recovery by, resbi'iated to amount paid.

    An indorsee of commercial paper, not valid as a legal obligation in the hands of the payee by whom it was negotiated, is restricted in his recovery in an action against the maker, to the amount advanced by him upon the faith of the paper, together with interest thereon.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      F. Q-. ¡Salmon, for the appellant.

      James J. Thompson, for the respondent.
   DaNIEls, J.:

This action was brought to recover the amount of a promissory note, subscribed by the defendant as maker. The note was dated on the 26th day of October, 1869, and by its terms the defendant promised to pay James 0. Mumys, or order, the sum of $10,000, in three years, for value received. It was not delivered to the payee, or to any person for his use, but it was left at his place of business, and, as the referee has found, in his possession, in contemplation of a settlement of their business affairs, to be after-wards had between them. No settlement was effected between them and no final agreement made as to the disposition to be made of the note. It follows, from these facts, that the note never became binding upon the defendant as a contract in favor of the payee. (Hall v. Wilson, 16 Barb., 548, 549, and cases cited.) To give that character to it there should have been a delivery of it to him or to some other person for his benefit; and that was shown never to have taken place. The consequence resulting from the absence of that fact was that the payee was not in a condition to enforce the note as a legal obligation, or to maintain any action upon it against the defendant.

Before the expiration of the three years he sold, and by his indorsement upon it transferred the note to the plaintiff for the sum of $1,500. No more than that sum was ever advanced upon the faith of it by the plaintiff, and the point presented for the decision of this court by the present appeal is, whether he must not be restricted in his recovery to that amount and interest upon it. If the note had been delivered to the payee for a good consideration, and in that way had become a legal obligation in his favor against the defendant, then he could have sold it for any price that would have been satisfactory to himself, and the purchaser would have been entitled to recover the full amount of it from the defendant; but from the facts appearing in this case it is entirely evident that the defendant never incurred any obligation to the payee by means of the note. It was not the evidence of a legal demand in his favor; and it could only become a lawful contract in favor of the plaintiff or any other person receiving it from the jiayee befoi-e it was due, by the advancement or parting with value upon the faith of it. In favor of such a person the law will give the instrument vitality for the purpose of protecting him against loss. That results from the well established rule that where one of two innocent persons must sustain a loss through the unauthorized act or misconduct of another, it shall be borne by the person who invested him with the apparent authority to perform the act. The object of the law is to protect the dealer innocently and properly parting with his money or property on the faith of appearances, justifying the conclusion that the person receiving it is authorized to perform the act for which it may be obtained; and the reason upon which the principle has been maintained requires nothing more than a complete indemnity to him against all probable loss. This has long been the extent of protection accorded to the purchasers of property in good faith against the equitable rights of others. And no good reason appears for making any discrimination in its application on account of the nature of the property which may have been the subject of the sale. The necessities of the case and the equities involved are the same in all cases, and the rule should be uniformly applied to their adjustment.

Accordingly, it has been held that the indorsee of commercial paper not valid as a legal obligation in the hands of the payee negotiating it, must be restricted in his recovery to the value with interest advanced by him to the payee upon the faith of' it. (Stevens v. Corn Exchange Bank, 10 S. C. N. Y. [3 Hun], 147, and cases referred to in the opinion; Platt v. Beebe, 57 N. Y., 339; Wiffen v. Roberts, 1 Esp., 261; Jones v. Hibbert, 2 Starkie, 304; Nash v. Brown, 6 Mann., G. & S., 584 ; Chitty on Bills, 89 [12th Am. ed.], note x ; Allaire v. Hartshouse, 1 Zab., 665, 673; Parish v. Stone, 14 Pick., 198, 209 ; Stoddard v. Kimball, 6 Cush., 469 ; Hubbard v. Chapin, 2 Allen, 328 ; Petty v. Harnum, 2 Humph., 102; Holman v. Hobson, 8 id., 127 ; Simpson v. Clarke, 2 Crompton, M. & R., 342; Youngs v. Lee, 18 Barb., 192, 193; affirmed, 2 Kernan, 551; Cardwell v. Hicks, 37 Barb., 458 ; Harger v. Wilson, 63 id., 237.) These authorities fully sustain that proposition, and they are in no sense in conflict with the rule which allows a recovery for the full amount of paper improperly negotiated when an adequate consideration has been advanced before its maturity in good faith upon it. The paper derives its vitality wholly from the circumstance that it has been obtained for value without notice by an innocent purchaser. .For his protection it is maintained in his hands as a legal obligation. The object of the law is to save him from loss; and to do that, a recovery of the amount he may have advanced is all that can be required. To go beyond it would be inequitable and unjust to the party, after that, equally entitled to be protected from unnecessary loss.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event, unless, within twenty days after notice of the decision, the plaintiff stipulates to reduce the recovery to $1,500 and interest upon it from the 2d day of October, 1872; in that event the judgment as so reduced will be affirmed, without costs of the appeal to either party.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event, unless, within twenty days after notice of decision, plaintiff stipulates to reduce the recovery to $1,500 and interest from October 2d, 1872; in that event, judgment as so reduced, affirmed, without costs of the appeal to either party.


author: Beady, J".:

text:
    In the Matter of the Petition of JEREMIAH H. MOORE to Vacate an Assessment for SECOND AVENUE.

      Assessments■ — purchase erf property subsequent to eonfn'mation — presumed, to ham been made subject to — Pan'ty aggrieved, — who is under chap. 888 of 1858.
    Where a person moves, under chapter 338 of 1858, to vacate an assessment upon property purchased hy him subsequent to the confirmation of the assessment, it rests upon him to show that he is aggrieved thereby. In the absence of any evidence on this point, it will be presumed that he purchased subject to the assessment, and that the same formed part of the consideration given by him for the property.
    Appeal from an order setting aside an order vacating an assessment.

      Irving Ward, for the appellant.

      Win. 0. Whitney and Hugh L. Odie, for the city.
   Beady, J".:

The order granted in this matter, vacating the assessment, was based upon the allegation, not then disputed, that the petitioner was the owner of the lots designated. It was subsequently discovered, and admitted by him, that he was not the owner at the time the assessment was confirmed, but became so subsequently, namely, on the 14th April, 1870, the assessment having been confirmed on the 7th March, 1870.

The order was therefore, on application, duly vacated, and from that result the petitioner appeals. The question still presents itself, is he aggrieved ? The presumption is, that he took the lots subject to the assessment which formed a part of the consideration which he gave for them. If it were otherwise, it was incumbent upon him to show it. The rule is settled, that the applicant in cases like this has the onus of bringing himself within the provisions of the statutes authorizing the relief sought by competent proof on all contested questions. (In re Basford, 50 N. Y., 509; In re Burke, 62 id., 224.)

It does not follow from the mere fact of ownership acquired subsequent to the confirmation of an assessment that the owner is aggrieved. The presumption is that he was indemnified, and it will eon fcrol until there is evidence to the contrary. If it formed part of the consideration, then the presumption is that the prior owner is the one aggrieved, because he has made an allowance to cover it in the transfer of the property, or is bound to do so. (In the Matter of Phillips, 60 N. Y., 16.) There being in this matter no proof that the petitioner was bound to pay the assessment as an original liability, or as one assumed without indemnity, the order made should be affirmed. He who is merely discharging the debt of another with property or funds furnished him, cannot complain as an aggrieved person.

The order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    THE EMPIRE BUILDING AND MUTUAL LOAN ASSOCIATION and GEORGE H. POOL, Appellants, v. MARY E. STEVENS Impleaded with JOHN O. STEVENS, Respondent.

      Practice — Mrst department — Motion to confirm referreds report — Special Perms — • 1 at which hea/rd.

    Where, upon, the trial of an equity case at the Special Term in the first district, an interlocutory decree is made directing a reference for certain purposes, a motion to confirm the report must he made at a Special Term for enumerated motions, and not at a Special Term and chambers for non-enumerated motions only.
    Appeal from an order denying a motion made at chambers, to confirm a report of a referee in an equity case tried at Special Term.

      IL. Brewster, for the appellants.

      A. J. Perry, for the respondent.
   Beady, J.:

This was an action for the foreclosure of a mortgage. Justice Van Voest, before whom the trial was had at Special Term, made an interlocutory decree directing a reference for certain purposes, and that on the coming in of the report the plaintiff have final 'judgment, etc. The report of the referee was sent back for further findings, and a supplemental report having been made, a motion was made at chambers and Special Term to confirm the reports. This motion was denied, and it would seem because the motion was not made at the Special Term proper, the tribunal in which the interlocutory decree was made. In the distribution of the business of this court in this department, the chambers and Special Term for non-enumerated motions are held each month, but the Special Term for enumerated motions, and for trials in equity causes and of issues of law, are not so frequently held, and are entirely distinct. The tribunal for the disposition of contested cases in equity, upon complaint and answer, is a different branch of this court from that of the allied chambers and Special Term, and tbe duties to be performed in each are well known and clearly-defined. When the interlocutory decree was entered herein the proceedings to ultimate a final judgment were necessarily to be had in the court pronouncing it, and hence it was necessary to go back to it for that purpose. This was not done, and the practice of the counsel for the respondent was erroneous. He had sought the intervention of a court having, by precedent and practice, no duty to perform such as he called for. It was incumbent upon him to apply to the tribunal having taken cognizance of the issues and having passed upon them.

For these reasons the order appealed from should be affirmed; but we think, under the circumstances, without costs of the appeal to either party, and without prejudice to a renewal of the application at the Special Term.

Davis, P. J., and DaNiels, J., concm-red.

Order affirmed, without costs.


text:
    OTTO VON HEIN, as Assignee in Bankruptcy of EMANUEL BUCHSTEIN, a Bankrupt, Respondent, v. ISAAC ELKUS and EMANUEL BUCHSTEIN, Appellants.

      General assignment — chap. 348 of 1860, §3 —fail/wreto file bond — Assignment without preference— bariiaruptcy act.

    The omission of an assignee for the benefit of creditors to file the bond required by section 3 of chapter 348 of 1860, does not — certainly until the inventory is filed —per se invalidate the assignment.
    The right to make a general assignment for the benefit of creditors is not suspended by the provisions of the bankrupt act, provided such assignment contains no preferences and is not made with intent to defraud the creditors of the assignors.

      Haas v. O'Brien (Ct. App., not yet published) followed.
    Appeal from an order appointing the plaintiff the receiver of the property, assets and effects of the defendant Buchstein, which the latter had assigned to the defendant Elkus, under and by virtue of a general assignment for tlie benefit of creditors, dated and recorded on tbe 23d of November, 1875.
    The facts are as follows: On the 23d day of November, 1875, the defendant Buchstein made to Elkus a general assignment, without preferences, for the benefit of creditors, under the laws of the State of New York.
    On or about the 30th day of November, 1875, a petition in bankruptcy was filed against Buchstein in the United State District Court, Southern District of New York, and such proceedings were had thereon that, on or about the 19th day of February, 1876, the said Buchstein was adjudged a bankrupt; and on that day Otto Yon Hein was appointed assignee of said bankrupt’s estate. And on the 24th day of February, 1876, Isaac Dayton, the register in bankruptcy to whom the matter was referred, made to Yon Hein, as assignee, a formal assignment of the estate of Buchstein, under the provisions of the fourteenth section of the United States bankrupt act.
    The complaint avers that the plaintiff, as assignee, demanded from Elkus the possession of the property, and that Elkus refused to deliver it to him.
    The answer admits the demand by the plaintiff, as assignee under the United States bankrupt law, and the refusal of the defendant to deliver it to him.
    The complaint also charges that the assignment to Elkus was made with intent to delay the operation of the bankrupt act, and also to hinder, delay and defraud the ci’editors of Buchstein.
    These allegations are denied by the answer.
    The defendant Elkus admitted that he had disposed of certain goods belonging to the bankrupt before filing the bond required by the act of 1860, but alleged that “ at the time of such sales the said assignee had his bond executed and ready to be filed, and that the same would have been filed but for the injunction obtained at the instance of the plaintiff in the bankruptcy court, and served on said assignee.”

      A. J. Dittenhoefer and Cornelius A. Runlele, for the appellants.

      D. M. Porter, for the respondent.
   Beady, J.:

The assignment made by the defendant Buchstein to his co-defendant, Elkus, contained no preferences, and is not assailed by proof showing that it was intended to defraud creditors. Its invalidity seems to have been predicated, therefore, of the omission of the assignee to file a bond as required by the act of 1860. (Laws of 1860, chap. 348.) The statutes of 1860 and the amendments of 1814 (Laws of 1814, chap. 600), provide, on that subject, that the debtor making the assignment shall file an inventory or schedule within twenty days after the date thereof, but if it be omitted, or the debtor refuse to make it, the assignment shall not for that reason become invalid or ineffectual. The assignees are then authorized to make an inventory within six months of the date of the assignment of all the property which they may be able to find, and compulsory measures are provided to assist them. The assignees are required, within ten days after the delivery of the inventory or schedule to the county judge (and before they shall have power or authority to sell, dispose of, or convert to the purposes of the trust, any of the assigned property), to enter into the bond provided for; and it is declared that the bond shall be filed in the county clerk’s office where the assignment is recorded. The bond is to follow the inventory which is to be furnished by the assignor, and the obligation to give it does not seem to arise until the inventory is made as directed. When the assignor omits or refuses to make the inventory, a case is presented for which, in reference to the bond of the assignees, no provision is made, and upon a strict construction of the statute no bond could be exacted in such a case, because the contemplated inventory is not given.

The assignees, nevertheless, would not only then have the right themselves to make the inventory, but to invoke the power of a court to assist in its preparation. An inchoate right to the property would in the mean time vest in them for the purposes of the trust (Juliand v. Rathbone, 39 N. Y., 369), although they would not be empowered to dispose of it until the required bond was given.

The object of the inventory is to aid in determining the amount of the bond to be given. It seems, therefore, taking all the provisions of the act of 1860, and amendments,- into consideration, that the omission to execute and file a bond would not, per se, invalidate an assignment; and such appears to have been the decision in the Court of Appeals in the case of Thrasher v. Bentley (59 N. Y., 649), the report of which is, however, meagre and unsatisfactory. It seems to be decided also in that case that the common-law right to make an assignment existed, even though by operation of the bankrupt law the statute of 1860 was suspended; but the error of this view arises from the fact that the statute regulates the exercise of the right, and both must fall or stand together.

The Court of Appeals had already held that this was the effect of the statute, because it was declared that the omission to acknowledge the assignment, and to have the proof thereof certified before delivery, in accordance with that statute, rendered it void. (Juliand v. Rathbone, 39 N. Y., 369, supra.) That proceeding was not necessary by the common law.

The Court of Appeals has also recently determined a mooted question, namely, whether the effect of the provisions of the bankrupt law relating thereto had not suspended the right to make an assignment for the benefit of creditors, and in favor of the right, provided the assignment be one without preferences, and it be made without intent to defraud creditors. (Haas v. O’Brien, MS., not yet reported.) In this case we have therefore the necessary elements to sustain the assignment made. It is not per se void. It is not void because of the omission to file the necessary bond. It is not void because it was executed in good faith, and contains no preferences. The plaintiff did not, therefore, by virtue of his appointment as assignee in bankruptcy, acquire the right to possess the property. He could have applied, doubtless, to compel the giving of the bond, or the surrender of the property, if one were not given, because, as we have seen, the right to appropriate the property was not absolute until the bond was given. (Act of 1860, chap. 348, § 3 ; Juliand v. Rathbone, supra.)

For these reasons, we think the order appointing the receiver was erroneous and should be reversed, with ten dollars costs and the disbursements of the appeal, with liberty, however, to renew the application for the appointment of a receiver upon further and proper proof.

Davis, P. J., and Daniels, J., concurred.

Order reversed with ten dollars costs and disbursements, with liberty to renew application for the appointment of a receiver upon further and proper proof.

       In Mayer v. Hillman (1 Otto, 496), the Supreme Court of the United Slates held that an assignment by an insolvent debtor of his property to trustees, for the actual and common benefit of all his creditors, is not fraudulent; and that when executed she months before proceedings in bankruptcy are taken against the debtor, it cannot be assailed by an assignee in bankruptcy subsequently appointed. The court in the same case say that such an assignment, even though executed within six months of the filing of the petition, is not mid, but decline to express any decided opinion as to whether or not it is voidaMe. — [Rep.


text:
    MARGARET R. NORTON, Appellant, v. ROBERT MACKIE and SIMON F. MACKIE, Respondents.

      Security for costs — Resident aliens.

    The statute requiring non-residents to give security for costs in actions brought by them, does not require such security to be given by aliens residing in this State, unless such residence is shown to be merely temporary.
    Appeal from an order requiring the plaintiff to file security for costs as a non-resident.

      Dermis McMahon, for the appellant.

      James K. Hill, for the respondents.
   Beady, J.:

The plaintiff in this action, if a resident of this country, could not register her vessel as the owner of a British ship unless a member of some British factory or agent for or partner in a home copart-nership actually carrying on trade in Great Britain or Ireland. (Abbott on Shipping [7th Am. ed.], page 83.) The affidavit of the plaintiff, disclosed on the motion, may be regarded as a declaration that she still continued to be a British subject, and that might be although her residence was in the State of New Fork. She would not have the right to avail herself of the privilege of her nationality in relation to ships, etc., during the continuance of her foreign residence, but if she did so it would not destroy the fact of such foreign residence. In other words, although the formula which the plaintiff went through in reference to her vessel may have been improper, because she did not disclose the fact of her residence out of the dominion of Great Britain; nevertheless she may have been, at the time of her declaration, a resident of this city, and such seems to have been the fact. The statute in reference to a security for costs does not apply to resident aliens unless such residence is clearly temporary, which is not the case here. The plaintiff swears that she has resided in this city since June, 1875, and has not had any idea of making any other country or State her permanent place of residence; and this gathers support from the fact that her husband is a native of this State, and a resident of this city, doing business here. The seeming inconsistency between her avowed residence here and her claim as-a British subject for purposes which can be claimed only, by residents of Great Britain or her colonies, except under special circumstances, which do not appear to exist herein, impressed the learned justice presiding at the Special Term and led him away from the real question involved, namely, that of residence. There can be no doubt that, residing with her husband in this city, without any intention to depart hence, or make any other place her residence, she was not within the purview of the statute.

It cannot be questioned, either, that an alien resident, temporarily here, would be within its provisions. There are many old and permanent residents of this city who have not become citizens of this country, and have not, therefore, enjoyed the blessings of our government. They are not, however, for this reason, subjected, in the prosecution of their demands, to any extraordinary procedure. The order made in this action should, for these reasons, be reversed without prejudice to the right of the defendants to renew it, if the circumstances existing warrant it, or any new facts be developed whicli fortify the attitude taken by them.

Davis, P. J., and DaNiels, J., concurred.

Order reversed.